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HomeMy WebLinkAbout12-14-1994 Planning Commission Minutes._.._ . . ' --~ PLANNING COMN.ISSION MINUTES DECEMBER 14, 1994 City Council Chambers, 13777 Fruitvale Avenue Regular Meeting --- ----------- ------ ----- ------- The meeting was called to order at 7:33 p.m. by Chairman Asfour. Roll Call Present: Abshire, Kaplan, Murakami, Patrick, Siegfried, Asfour Late: Caldwell Absent: None City Attorney Riback was present this evening. PLEDGE OF ALLEGIANCE ORAL COMMUNICATIONS MINUTES November 22, 1994 COMMISSIONERS KAPLAN/PATRICK MOVED TO APPROVE THE NOVEMBER 15, 1994 MINUTES WITH THE FOLLOWING AMENDMENTS: - Page 2, Heading prior to Agenda Item 1 to read: "z~G ""~~a-CONSENT CALENDAR". - Page 9, paragraph 2, line 1, replace ",~,e" with "at~:.c:" - Page 10, paragraph 9, line 2 amended to read: ..contractor would make changes without cleck:irig::w.i;tYi::::t1ie own;ex..... ~~ - Page 11, paragraph one, line one amended to read: "...TO REQUIRE THAT THE INTERIOR HOI~IZOI~I:'PAI; COLUMN TIES BE NO GREATER THAN FIVE FEET IN HEIGHT, SUBJECT 'I'O STAFF APPROVAL...." - Page 11, paragraph 5, line 3, replace the word "e~,er}f" with "ever". THE MOTION CARRIED 6-0 (COMMISSIONER CALDWELL ABSENT). ORAL COMMUNICATION No comments were offered. REPORT OF POSTING AGENDA Pursuant to Government Code 54954.2, the agenda for this meeting was properly posted on December 9, 1994. TECHNICAL CORRECTIONS TO PACKET Planner Walgren informed the Commission that there were three corrections as follows: ~1 1 PLANNING COMMISSION MINUTES DECEMBER 14, 1994 PAGE - 2 - - Correcting page one of the agenda, item 1 to reflect that the Constantin's design review application was for a ":4';:47:3"' square foot residence, not a "4 ;3-39" square foot residence. - Correcting page three of the agenda, item 8 to reflect that the zoning district for the Wells application to be R-1 20:b.OQ, not R-1 }-999. - Correcting agenda item 1, page 51, under the design review subheading, amend the third bullet to read: "At two stories, and 24 ft. in height, the proposal does no:t appear to meet the intent of minimizing viewshed impacts...." Chairman Asfour noted for the record that the Commission received a letter from Matteoni, Saxe, and Nanda, Attorneys at Law, relating to the Constantin application (agenda item 1). He stated that due to the length of the letter, he would not have the opportunity to read the letter received this evening. PUBLIC HEARINGS 1. DR-94-031 - Constantin; 20855 Rittridge Rd., request for V-94-012 - Design Review approval to construct a new 4,473 LL-94-008 - sq. ft. two-story residence on a vacant hillside parcel with an average slope of 730. Variance approval is necessary to allow the structure to be built on a slope of 85°s and to allow the residence to encroach into required front and side yard setbacks. Lot Line Adjustment approval is also necessary to meet minimum City lot depth requirements. The subject property is 1.18 acres in size and is located within a Hillside Residential zoning district. (Cont. from 10/26/94 in order to prepare and adopt denial Resolutions; ----------- application expires 2/22/95). -------- Planner walgren ---------------------------- presented the staff report on this item. He recommended that the Commission follow-up on its original motion to deny the project by first denying the variance request based on the Health, Safety, Welfare concerns cited during the public hearing and articulated in the resolution based on building on an 85°s slope. Followin g this action, the Commission should deny the lot line adjustment based on the inability to find that the project would conform with applicable zoning and building requirements. Lastly, denial o f the design review for the residence based on the inability to app rove the two previous applications. Chairman Asfour opened this item to public hearing at 7:41 p.m. Virginia Fanelli, representing the Constantin's, informed the Commission that the applicant did not wish to continue this item. Bob Saxe, attorney representing the Constantin's, addressed the history of the creation of this parcel. He referred to the PLANNING COMMISSION MINUTES DECEMBER 14, 1994 PAGE - 3 - Certificate of Compliance attached as an exhibit to the letter he submitted this evening to the Commission. He informed the Commission that it was brought to his attention that a conditional Certificate of Compliance was recorded, not the Certificate of Compliance that his client thought was to be recorded. He stated that at the time the parcel was created it needed a 150 foot lot depth. Therefore, the lot line adjustment application is necessary to satisfy the Certificate of Compliance condition, including a variance. He further stated that the lot line adjustment does not have anything to do with the buildability of a parcel. A lot line adjustment allows a property owner to move a line between two existing parcels. He felt that there was a theory that in order to receive lot line adjustment approval, the property owner would need to comply with all the zoning requirements. The staff report states that you need to look at the property to determine whether there is any non-conformity in terms of zoning before granting a lot line adjustment. He felt that this was an incorrect interpretation. It was his opinion that you look at the impact of the lot line adjustment to determine if it would create a non- conformity. Under the rationale presented to the Commission this evening, he did not feel that the Commission would be able to grant a lot line adjustment to any parcel in this community where there exists a non-conformity with the respective zone. He stated that the applicant was before the Planning Commission for approval of a lot line adjustment because the applicant was required to do so. He accepts that this was a way to solve both problems; granting the lot line adjustment, thus allowing a condition to be satisfied which would allow for the recordation of the Certificate of Compliance. He stated his agreement with the City Attorney that variances were discretionary. He informed the Commission that pages 4 and 5 of his letter addressed the findings that can be made in order to grant the variance. He stated that it was difficult to understand how this parcel could be treated differently than other parcels that have come before the City over a period of ten years. COMMISSIONERS KAPLAN/PATRICK MOVED TO CLOSE THE PUBLIC HEARING AT 7:50 P.M. THE MOTION CARRIED 6-0 (COMMISSIONER CALDWELL ABSENT). Chairman Asfour requested that City Attorney Riback respond to Mr. Saxe's comments. City Attorney Riback noted that the Commission has a copy of the report prepared by City Attorney Faubion. He noted his disagreement with Mr. Saxe regarding whether or not the lot line adjustment can be granted for property that is found to be non-conforming with zoning and building regulations. He read from the Subdivision Map Act which states that a local agency or advisory board shall limit its review and approval with the determination of whether or not the parcels resulting in one lot will conform to local zoning or building agencies. It was his opinion that should a lot line adjustment be granted prior to a variance being granted on the parcels, that it would not conform to the City's building and zoning ordinances because of the parcel's slope. He stated that a lot line adjustment could not be approved until a variance is approved. PLANNING COMMISSION MINUTES DECEMBER 14, 1994 PAGE - 4 - Commissioner Kaplan requested clarification regarding page 3, paragraph b, of the City Attorney's Report, pertaining to granting of special privileges. City Attorney Riback clarified that paragraph b was one of the findings that must be made in order to grant a lot line adjustment. Commissioner Kaplan commented that page 5 of the City Attorney's Report requires that the Commission determine whether or not parcel 2 has a potentially buildable site. She inquired if that was an issue that the Commission had to determine tonight. (Does the Commission need to make a decision that parcel 2 would not be buildable either?) City Attorney Riback responded that for the purposes of the lot line adjustment, there would be an adjustment to take land from parcel 2 to add to parcel 1 and that a finding that would need to be made is that the parcel remaining would conform to zoning and building regulations. Commissioner Kaplan noted that one of the issues raised was whether or not parcel 2 would remain as a buildable lot or a conforming lot, again a question of slope. She questioned if that was 'to be factored into this decision. City Attorney Riback responded that he was not familiar with parcel 2. It may be that the slope is such that it is excessive or exceeds the allowable slope under the zoning ordinance. Commissioner Patrick asked if the Commission was to approve a lot line adjustment, would that imply that lot 2 would be a conforming lot. City Attorney Riback responded that approval of a lot line adjustment would imply that lot 2 would be a conforming lot and that a finding would need to be made that the remaining parcel would comply with zoning regulations. Commissioner Kaplan inquired as to what rights would be granted if the Commission approves a lot line adjustment. City Attorney Riback stated his concurrence with Mr. Saxe that granting a lot line adjustment does not imply that the lot was a buildable site. He further stated that there was a difference between buildability and conformance with the City's zoning and building regulations. He clarified that a lot line adjustment cannot be granted without approval of the two variances before the Commission. It may be that parcel 2 may need to be looked at as well. Commissioner Siegfried asked if this was a legal lot of record. He did not feel that this issue was addressed in the City Attorney's memorandum. City Attorney Riback responded that it was not addressed because it was not an issue this evening. Commissioner Siegfried responded that it was an issue for him because the City has historically taken the position that if you have a legal lot, you can build on it. City Attorney Riback stated that a conditional Certificate of Compliance was issued for this parcel. what that means is that if .the condition is met, than the parcel is a legal parcel. It was determined that the lot was not legally created. It was determined after some lengthy period of time by virtue of looking through the historical records including title reports relating to this property. Commissioner Siegfried requested that the public hearing be reopened because Mr. Saxe has PLANNING COMMISSION MINUTES DECEMBER 14, 1994 PAGE - 5 - indicated that this was a legal lot of record and requested further clarification. Commissioner Kaplan stated that she would be willing to accept what the City Attorney has prepared in terms of what the City's position is. COMMISSIONERS SIEGFRIED/MURAKAMI MOVED TO REOPEN THE PUBLIC HEARING. THE MOTION CARRIED 4-2 WITH COMMISSIONERS KAPLAN AND PATRICK VOTING NO AND COMMISSIONER CALDWELL ABSENT. Mr. Saxe stated that it was his understanding that the City was to file and record a Certificate of Compliance only to find out a year later that a conditional Certificate of Compliance was recorded instead of a Certificate of Compliance. City Attorney Riback stated that he would need to consult with Ms. Faubion from his office to expand on the issue of the conditional Certificate of Compliance as she took the lead in discussions with Mr. Saxe. He stated that he would provide the Commission with a response at its next meeting. Commissioner Patrick inquired as to what action the property owner could have taken once the applicant felt that the Certificate of Compliance should have been an unconditional one? City Attorney Riback responded that the conditional Certificate of Compliance was an administrative action, one appealable to the Planning Commission within 15 days following notification of action. He stated that he could not believe that notice was not given to the property owner and that there was no discussion regarding the action. COMMISSIONERS KAPLAN/SIEGFRIED MOVED TO CLOSE THE PUBLIC HEARING AT 8:05. City Attorney Riback commented that the conditional Certificate of Compliance was a draft provided to Mr. Saxe and that at a later date, it was revised. He felt that maybe the condition was revised upon review by the City Engineer. Commissioner Siegfried commented that what he hears Mr. Saxe stating was that his attachment was what he thought was going to be recorded and what was recorded was something different. Commissioner Kaplan commented that she would not be able to review and digest the letter submitted by Mr. Saxe this evening and that she does not take this matter lightly. She felt that this item would be appealed and recommended that the Commission vote on this item. She stated that she would take the advise from the City Attorney. Commissioner Patrick commented that notice is given when a document is to be recorded and that would have been the appropriate time to complain or object to the contents of the document to be recorded. She stated that she would need to rely on the conditional Certificate of Compliance that was issued and that she would rely on the City Attorney's advise on this matter. PLANNING COMMISSION MINUTES DECEMBER 14, 1994 PAGE - 6 - d City Attorney Riback pointed out that the lot line adjustment application was applied for in August 1994. If the conditional Certificate of Compliance was an issue, it seemed to him that this issue should have been brought up at that time. Chairman Asfour concurred that the report states that the document was recorded and was ready to proceed. He felt that there was ample time for the property owner to come forward and contest or appeal the conditional Certificate of Compliance. Commissioner Kaplan questioned why the finding as listed in Resolution No. V-94-012, Paragraph 4, could not read: "The Planning Commission finds that the granting of the Variance will be detrimental to the public health, safety or welfare...." City Attorney Riback responded that in order to grant the variance, the Commission would need to make the finding that the granting of the variance would not be detrimental to the public health, safety and welfare. Community Development Director Curtis clarified that the Commission would need to make the findings to grant the variance but findings are not required to deny a variance. COMMISSIONERS KAPLAN/PATRICK MOVED TO APPROVE RESOLUTION NO. V-94- 019, DENYING THE VARIANCE REQUEST BASED ON THE FINDINGS LISTED IN THE STAFF REPORT. THE MOTION CARRIED 5-0-1 WITH COMMISSIONER SIEGFRIED ABSTAINING AND COMMISSIONER CALDWELL ABSENT. Commissioner Siegfried stated that he abstained because he believed that there was a fundamental issue that he thought was raised when this item was continued as to whether or not this was a legal lot of record. He did not agree with the City Attorney's opinion and did not believe that the issue was addressed. COMMISSIONERS KAPLAN/PATRICK MOVED TO APPROVE RESOLUTION NO. LL-94- 008, DENYING THE LOT LINE ADJUSTMENT PER THE STAFF REPORT. THE MOTION CARRIED 5-0-1 WITH COMMISSIONER SIEGFRIED ABSTAINING AND COMMISSIONER CALDWELL ABSENT. COMMISSIONERS KAPLAN/PATRICK MOVED TO APPROVE RESOLUTION NO. DR-94- 031, DENYING THE DESIGN REVIEW APPLICATION PER THE STAFF REPORT. THE MOTION CARRIED 5-0-1 WITH COMMISSIONER SIEGFRIED ABSTAINING AND COMMISSIONER CALDWELL ABSENT. Commissioner Caldwell entered and was seated. 2. V-94-019 - Holt; 14690 Oak Street, request f.or. Variance approval to const±-uct a 625 sq. ft. one-story addition 9.83 ft. from the exterior side property line where 19 ft. is the minimum distance required and to extend the existing front porch pursuant to Chapter 15 of the City Code. The total proposed floor area including the existing detached garage is 2,277 sq. ft. The subject property is approximately 7,525 PLANNING COMMISSION MINUTES DECEMBER 14, 1994 PAGE - 7 - sq. ft. and is located within an R-1-10,000 zone district. (Cont. from 11/22/94 public hearing at the request of the applicant due to conflicts with the hearing date; application expires 3/12/95). ------------------------------------------------------- Planner Walgren presented the staff report on this item. Chairman Asfour opened this item to public hearing at 8:15 p.m. John Holt, applicant, thanked building and planning staff for their assistance. He made an exception to condition 5.b. due to the fact that the existing siding material is no longer available. He informed the Commission that the new siding closely matched the existing siding. Planner Walgren informed the Commission that the siding condition was recommended by the Heritage Preservation Commission. Elizabeth Hansen, Heritage Preservation Commission, informed the Commission that Mr. Holt has gone beyond the Heritage Preservation Commission's expectation. She informed the Commission that the garage was not part of the original structure. Mr. Holt informed the Commission that the roofing material of the garage would be the same as that of the house. COMMISSIONERS KAPLAN/MURAKAMI MOVED TO CLOSE THE PUBLIC HEARING AT 8:20 P.M. THE MOTION CARRIED UNANIMOUSLY (7-0). COMMISSIONERS CALDWELL/PATRICK MOVED TO APPROVE RESOLUTION NO. V- 94-019 WITH THE UNDERSTANDING THAT THE SIDING IS TO REFLECT THE HERITAGE PRESERVATION COMMISSION'S DESIRE TO CLOSELY MATCH THE SIDING OF THE EXISTING STRUCTURE. THE MOTION CARRIED UNANIMOUSLY (7-0) . 3. DR-94-046 - Bird/Cutler; 14523 Big Basin Way, request for UP-94-008 - Design Review approval to remodel and add a 403 sq. ft. second floor kitchen addition to an existing 1,885 sq. ft. two-story commercial building located within the Saratoga Village. Use Permit approval is also requested to allow a restaurant to be established in the upper ' tenant space of this building, currently "Tresors Antiques", with an office and supply/coffee roasting room below. The subject property is in Public Parking District #1 and is located within a Commercial Historic (CH-1) zoning district. Planner Walgren presented the staff report on this item. Community Development Director Curtis informed the Commission that staff received a copy of a letter mailed to the Commission. He clarified that there is concern about parking spaces available at any one time. His discussions with the applicant early on was that if the building was to be expanded in any way, that additional parking PLANNING COMMISSION MINUTES DECEMBER 14, 1994 PAGE - 8 - spaces would need to be provided irrespective of the building department study or the number of spaces that is found available at certain times. He did not want the comments to be misconstrued. He informed the Commission that a parking study is being conducted throughout the City to determine parking spaces available. Typically, staff would not accept an application and recommend approval when it does not meet the parking provisions. However, he felt that it was an issue and felt that the parking space could be found. Commissioner Kaplan commented for the record that she attended a social function where an individual informed her that she received notice of this item. However, there was no discussion on the issue. Commissioner Caldwell asked what would happen to this application if the parking space deficit could not be found or resolved? Planner Walgren responded that if the parking space could not be provided at an alternate site, the use permit would be void because parking was a condition for this proposal. That was one of the reasons that staff allowed the applicant to proceed without investing on expensive plan preparation, etc. In order to expand, the applicant would need to acquire the additional space. However, the applicant could proceed with the restaurant use and either eliminate the 400 square foot addition or reduce the size to 200 square feet because the property requirement is based on a 50"s threshold. Commissioner Caldwell inquired if a system or a program has been set up for purchasing credits for parking or does staff feel that parking credit can be provided in public Parking District #1? Planner Walgren responded that parking has been worked out in other districts in the City, but that it would need to be researched and tailored for this district. Commissioner Caldwell questioned where staff would draw the line for this level of approval when there is more than one parking space shortage? Planner Walgren responded that it would be based on the reasonable expectation for providing those parking spaces. If a business came in that needed 15 or 20 parking spaces but that there was the possibility that repaving and expanded a district to provide the 15 or 20 spaces, staff may still consider the proposal. In this case, it appears that there is the potential for 1 to 3 additional spaces to be created which would be available not only to this business owner but to any business owner in this district. Chairman Asfour stated that he was surprised that with restriping, the City could attain additional parking. Planner Walgren commented that older districts may be able to be restriped to provide additional parking where the newer parking districts are designed and laid as efficiently as they could be. Commissioner Siegfried commented that it was unusual to conceptually approve a project without architectural plan drawings. He expressed concern with this process and asked why staff was bringing this project to the Commission at this time. Planner Walgren responded that this item was before the Commission at the PLANNING DECEMBER PAGE - 9 COMMISSION MINUTES 14, 1994 applicant's request a condition that architectural plans of these conceptual he did not have a p~ may open up a whole Staff was in agreement with the request with before permits could be activated, final need to be submitted which would be reflective drawings. Commissioner Siegfried stated that oblem in this instance. However, this process new process being established. Community Development Director Curtis stated that staff processed the plans that were submitted by the applicant. He stated that he understood Commissioner Siegfried's concern. However, he did not feel that this would be a precedent setting action for staff. He felt that the land use issue needed to be resolved. The architectural portion was a minor issue and felt that expense in drawings may be unnecessary if there was a question or issue with the land use. If the Commission wished, it could continue this item and require that the applicant submit architectural plans. Commissioner Caldwell asked if this application triggered discussion of whether Parking District #1 could be restriped. If that was the case and the Commission decided to move forward with this in order to accommodate new development, would the applicant incur the cost of the striping? Planner Walgren responded that the City has budgeted and scheduled for the restriping to occur. Commissioner Kaplan stated that the specs for the project located on page 1 of the drawings indicates a parking variance request of 11. Planner Walgren responded that he was uncertain what the "11" reflects. It is not a parking variance and that only one additional parking space is required. Chairman Asfour asked if the applicant was made aware that if for some reason that the parking space could not be provided that the use permit would not be valid. He also asked if the applicant was still willing to go forward with the expansion. Planner Walgren responded that the applicant was aware of the various options. If the space cannot be provided, then the 403 square feet of addition could not be accommodated. Chairman Asfour opened this item to public hearing at 5:35 p.m. Mitchell Cutler, applicant, addressed Commissioner Siegfried's issues as to why the architectural plans were not submitted. He stated that he was looking to purchasing the building. He expressed concern that he was taking an existing building and working within the guidelines being requested by the "Village". He stated that in order to make this project work, he needs to provide one additional parking space. He requested Commission approval of the variance for the one parking space if possible. Regarding Commissioner Kaplan's question regarding the notation of 11 parking space, he felt that it was a typo. Commissioner Patrick inquired if the point of access would be through the down hill side through the gate that is now closed and locked. Mr. Cutler responded that access would be from the back side as well as the front. PLANNING COMMISSION MINUTES DECEMBER 14, 1994 PAGE - 10 - Community Development Director Curtis commented that a variance cannot be granted to the parking requirements because parking was established in cooperation with the property owners similar to Covenant, Conditions, and Restrictions. The City cannot grant variances on agreements between property owners. He stated staff's support for the project. However, if the project depends on the addition, then staff did not recommend that the applicant proceed with the application. COMMISSIONERS KAPLAN/SIEGFRIED MOVED TO CLOSE THE PUBLIC HEARING AT 8:40 P.M. THE MOTION CARRIED UNANIMOUSLY. Commissioner Patrick asked who was responsible for restriping the parking lot and whether measurements have been taken to see of additional parking spaces could be created with restriping. Community Development Director Curtis informed the Commission that the Public Works Department would be responsible for restripping of the parking lot. Staff felt that with an old parking area, parking lines can be redefined to provide one space. There is a question with the ADA requirements to provide additional handicapped parking spaces. He felt that the old parking lot layout may not have maximized the efficient use of the circulation pattern. He felt that one parking space could be found. Commissioner Caldwell inquired who has the authority as to how the parking area is managed and ensures that litter is picked up on a regular basis. Community Development Director Curtis responded that trash pick up was defined under a maintenance contract, administered by the City. COMMISSIONERS MURAKAMI/SIEGFRIED MOVED TO APPROVE RESOLUTION NO. DR-94-046 AND UP-94-008 PER STAFF'S RECOMMENDATION. THE MOTION CARRIED UNANIMOUSLY (7-0). Commissioner Caldwell stated that she hoped that the Parking District's litter is picked up on a regular basis and that the entire parking area is cleaned up because she noted that it was a continuous problem. Community Development Director Curtis informed the Commission that he would pass Commissioner Caldwell's concern to the Public Works Department. Commissioner Kaplan asked who maintains the Saratoga/Sunnyvale Road? Community Development Director Curtis responded that CalTrans was responsible for road maintenance, including the sidewalks (anything within the public right-of-way was CalTran's responsibility). Commissioner Murakami asked if the City has a once a month street sweeper who would be responsible for clearing the street? Community Development Director Curtis responded that there exists street cleaning serves, including parking districts but was not aware of the timing for the services. 4. DR-94-043 - Baluni; 14983 Gypsy Hill Rd., request for Design Review approval to construct a 5,569 PLANNING COMMISSION MINUTES DECEMBER 14, 1994 PAGE - 11 - sq. ft. two-story residence on a vacant .96 acre hillside lot located within an R-1-40,000 zoning district. The subject property is Lot 26 of the San Marcos Heights subdivision. ------------------------------------------------------- Planner Walgren presented the staff report on this item. Commissioner Siegfried commented that more than a couple of the sites were conditioned to be either single story or two story lots. He questioned if this lot was in agreement with the original conditions. Planner Walgren responded that when height restrictions were placed on the subdivision, staff and the Commission was looking at the land in its raw configuration. Grade changes have occurred as a result of the road construction and pad grading. He did not feel that this lot was affected as significantly as lot 33 was. The terraces that exists roughly follows the natural grading. Commissioner Caldwell expressed concern with the entire area. She noted that there is no erosion control in place in the whole construction area. She felt that it was an intense situation and recommended that erosion control measures be undertaken. Commissioner Siegfried commented that he raised the question regarding height limitations because there has been a significant change in grading then what the Commission thought it was looking at. Planner Walgren informed the .Commission that staff received a letter from Daniel Solomon, the applicant's architect describing the design process that they went through and the design needs of the applicant and that the letter was distributed to the Commission. Chairman Asfour opened this item to public hearing at 9:54 p.m. Alex Baluni, applicant, informed the Commission that his architect would address the design of the home. He also informed the Commission that design alternatives have been considered over the past eight months. Daniel Solomon, San Francisco, architect, addressed the site under discussion. He addressed the grading that has occurred. He stated that consideration has been given towards preservation of the riparian corridor and that the foot print of the home would not step down into the riparian corridor. If a one story design was required, the footprint of the house would step down and encroach into the riparian corridor. The ridge on the uphill side of the house is 19 feet and the highest point of the down hill side of the house is 24 feet. Although a one story home would be permitted at 26 feet in height, he felt that the proposed two story home would be lower than a one story home would be. From Gypsy Hill Road, the proposed home would be considerably lower than the adjacent two homes. Regarding the issue of color compatibility and whether the house would be less obtrusive if the color was darker, he felt that PLANNING COMMISSION MINUTES DECEMBER 14, 1994 PAGE - 12 - the proposed colors for the home would be compatible with existing homes. He provided the Commission with an alternative color board sample and presented the Commission with illustrations of the proposed home. Thai Nguyen described the location of the illustrations presented to the Commission. Chairman Asfour requested staff clarification regarding the comment made about the fact that if a single story home was built at 26 feet on this lot, that the elevation would be higher than that of the two story home proposed. Planner Walgren responded that 26 feet was the maximum height limit permitted in the City. Generally a single story home is, depending on the style, 18 to 20 feet in height or less. The Commission would be looking at the same type of application if it was a single story home, but the roof would be 26 feet in height. Commissioner Siegfried commented that the problem he had with the design was not so much the height but that of the perception that if you look at the house, especially the way the roof is designed, that it creates a much taller house. Ali Saad informed the Commission that he was in the process of purchasing lot 25 (corner lot) and the he has reviewed the plans. He stated his support for the design. However, he expressed concern that the home was going to be built at a platform that is already 10 feet higher than lot 25. He recommended installation of trees or landscaping to provide screening or that lot 25 be allowed to have a two story home for privacy reasons. He informed the Commission that he was proposing to construct a Mediterranean home. Commissioner Patrick asked Mr. Saad how he would want lot 26 to be built? Mr. Saad commented that he would request screening to provide privacy. Mr. Bogros, 15015 Gypsy Hill Road, Lot 27, requested preservation of the riparian corridor. Commissioner Caldwell inquired if Mr. Bogros was concerned with any house being built on the site obstructing his view, or was his concern with a particular part of the house or that of height. Mr. Bogros responded that obstruction of his viewshed was of concern. Mr. Solomon commented that Dr. Baluni was also concerned with the issue of privacy and would be happy to provide street planting to the adjacent lot. He stated that he would not propose to face the garage doors towards lot 25. He noted that lot 27 would be 12 feet higher than lot 26. Each of the lots steps with respect to the others. On the side adjacent to lot 27, the house would be 19 feet high and that the two story portion of the home would only be adjacent to lot 27. There would be no way to provide a one story home that would lesson the obstruction of the view for lot 27. He stated that he was conscientious in attempting not to block views from adjacent buildings. PLANNING COMMISSION MINUTES DECEMBER 14, 1994 PAGE - 13 - Commissioner Caldwell noted that the plans do not indicate fencing the pool. She asked for the plans for fencing the area given the restrictions of fencing in this subdivision. Mr. Solomon informed the Commission that the pool would be fenced in and that there is no intention to fence the riparian corridor. Commissioner Caldwell noted that there is guest parking proposed on the lot 25 side. The vegetation along that side is four foot high. She asked if Mr. Solomon was suggesting that he would be willing to provide a taller, more substantial buffer landscaping along the entire elevation. Mr. Solomon responded that landscape buffering was proposed along that side of the lot. COMMISSIONERS CALDWELL/MURAKAMI MOVED TO CLOSE THE PUBLIC HEARING AT 9:22 P.M. THE MOTION CARRIED UNANIMOUSLY (7-0). Commissioner Siegfried commented that his concern with the house was that it is perceived as being a much taller and massive structure than it measures. He was not sure if the proposed home would obstruct viewsheds. Commissioner Caldwell commented that if you look at the Sobey Oaks area that is much closer to this: house in their design (Mediterranean architecture), those homes have similar fill and envelops and have very little roof showing. They appear taller and boxier than those in the Gypsy Hills or San Marcos Heights developments. If the design was on the Crisp side, she could not support the design. She felt that it was harder to judge in this location because there are other Mediterranean home styles in the area. Commissioner Kaplan thanked Mr. Solomon for the use of height poles. She also appreciated that the garage was to be located away from the front of the house. However, she was concerned that if this lot was allowed to be built as a two story lot, the adjacent property owner may request approval of a two story home. If this occurs, she would be concerned that two homes of substantial bulk would create an appearance of a massive wall of building. She noted that this became apparent to the Commission as it drove down to the lower part of Via de Marcos. From the whole range of Via de Marcos and back on the opposite side, it looks like too much house. She understood why the single story suggestion was imposed on these lots. She felt that the design makes the house appear too square, boxy or massive. Commissioner Murakami commended the architect on the use of material and function of the design. However, he concurred with staff that the design does not compliment/match the neighborhood. He felt that with the proposed configuration and colors submitted, the house would stand out. He stated his support to staff's recommendation. Commissioner Caldwell asked if Commissioner Murakami would still feel the same way with the use of a darker color or would a single story home at a height limit of 19 feet with a similar design be . PLANNING COMMISSION MINUTES DECEMBER 14, 1994 PAGE - 14 - acceptable to him. (was the issue that of design or that of a one/two story issue?) Commissioner Murakami responded that his concern was that the design gave the house the appearance of being bulky. Commissioner Caldwell commented that design review does not require similarity but that of compatibility. Commissioner Patrick commented that the home would block views from certain areas. She felt that the design takes on a horizontal appearance along the ridge line, leaving less room between the other houses in the neighborhood. She supported staff's recommendation because the home appears to block the views from too many areas. Commissioner Abshire commented that the tentative map suggested construction of a single story home. He was inclined to believe that a single story home would be better. He stated his concurrence with comments expressed by his fellow Commissioners. Chairman Asfour commended the architect on the design and layout of the home. However, he expressed concern regarding the back side of the home giving the appearance of mass and bulk. He inquired if the applicant wished to have the Commission make a decision tonight or whether the applicant wished to have the application continued to allow him to address comments of the Commission. Mr. Solomon indicated that he would agree to have this item continued. COMMISSIONERS PATRICK/KAPLAN MOVED TO REOPEN THE PUBLIC HEARING AT 9:30 P.M. THE MOTION CARRIED UNANIMOUSLY (7-0). Community Development Director Curtis informed the Commission that the January 11, 1995 continuance date may be very tight. He recommended that this item be continued to January 25 with additional information being submitted to staff by January 13. Mr. Solomon commented that it was difficult to satisfy the needs of the family with the design of a one story building. He stated that it would be possible to contain the two story building with a dormer-like roof. He felt that the roof element would allow for a simple redesign. Commissioner Kaplan commented that if a two story home is approved, then another two story home may be requested in the future. She asked if the Commission has decided not to require the applicant to adhere to the recorded subdivision restrictions. Chairman Asfour responded that the subdivision requirement of single story/two story was a recommendation, not a restriction. He felt that what is decided on this lot would not affect the decision of the next application. Commissioner Siegfried commented that the front view with the horizontal design gives the appearance that the home is all one height with no variation. It gives him the appearance of a very massive, horizontal view. He did not have a problem with a two story home if there was some greater variation in the roof level. PLANNING COMMISSION MINUTES DECEMBER 14, 1994 PAGE - 15 - Mr. Solomon pointed out that the single/two story restriction was made before the site was graded. Mr. Saad commented that he would have a problem with an increase in foot print because his viewshed would be blocked. He indicated that should the Commission approve a two story home that it does not mean that he would propose a two story home on lot 25. Commissioner Caldwell commented that if a portion of the two story home was pulled down towards the first floor, you would accomplish better conformance with the comments of a one story home, making the structure less of a box-like building, even if it meant encroaching a little into the pool area to mitigate the Commission's concern. COMMISSIONERS SIEGFRIED/CALDWELL MOVED TO CONTINUE THE PUBLIC HEARING FOR APPLICATION DR-94-043 TO JANUARY 25, 1995 WITH ADDITIONAL INFORMATION BEING SUBMITTED TO STAFF BY JANUARY 13, 1995. THE MOTION CARRIED UNANIMOUSLY (7-0) THE COMMISSION RECESSED AT 9:45 P.M. THE COMMISSION RECONVENED AT 9:55 P.M. 5. DR-94-040 - Wright; 15142 Sobey Road, request for Design UP-94-007 - Review approval to construct a second-story addition onto an existing residence and to allow the structure's total floor area to exceed 6,000 sq. ft. per Chapter 15 of the City Code. The applicant is also requesting Use Permit approval to construct a 759 sq. ft. detached garage within the parcel's rear yard setback. The property is approximately 1.69 acres and is located within an R-1-40,000 zoning district. Planner Walgren presented the staff report on this item. Commissioner Kaplan questioned who supervises condition '7 as listed on page 65 of the resolution of approval to ensure compliance. Planner Walgren commented that the conditions are spelled out in the resolution. In this case, the City would be taking a tree security deposit and would require regular inspections by the City arborist. The condition requires a final follow-up report by the City arborist in order to release the deposit. Chairman Asfour opened this item to public hearing at 9:59 p.m. Maurice Camargo, architect, thanked staff for its assistance in the process. Commissioner Murakami asked if the roof design was more of a function. Mr. Camargo responded that the roof was designed to accommodate the master suite and to bring the house together i.n the entry way and court. Commissioner Murakami commended Mr. Camargo on his drawings. PLANNING COMMISSION MINUTES DECEMBER 14, 1994 PAGE - 16 - COMMISSIONERS PATRICK/MURAKAMI MOVED TO CLOSE THE PUBLIC HEARING AT 10:00 P.M. THE MOTION CARRIED UNANIMOUSLY (7-0). COMMISSIONERS PATRICK/KAPLAN MOVED TO APPROVE RESOLUTION DR-94-040 AND UP-94-007 PER STAFF'S RECOMMENDATION. THE MOTION CARRIED UNANIMOUSLY (7-0). 6. SM-94-011 - Mendoza/Stangel; 14640 Via De Marcos, request for Exemption from the Fencing Area of Enclosure regulation in order to allow the proposed fencing to exceed the maximum 4,000 square foot limitation per Chapter 15 of the City Code. The property is 40,661 sq. ft. and is located within an R-1-40,000 zoning district. Planner Walgren presented the staff report on this item. Commissioner Caldwell commented that on page 77 of the staff report, under trees, staff indicates that a condition was placed in the resolution requiring that the applicant replant new trees. But in looking at the condition located on page 79 of the staff report, condition 10.a. states that the applicant has to replace the removed oak tree with $2,238 "of planting material". This was a concern to her because the applicant was not being required to replace the trees or a specific oak tree that is being removed. Planner Walgren agreed that condition 10.a. should be clarified that the replacement value is to be for the replacement of native trees. Commissioner Caldwell stated that as a member of the Tree Preservation Committee that the Committee has noticed that the City's existing ordinance actually contains good provisions and penalties for illegally removed trees. She inquired if the City enforces the ordinance in terms of requiring the penalties that are allowed. She asked what the City is legally permitted to do in the way of penalizing the applicant for the illegal removal of the tree(s) so as to deter future illegal removal of trees. She inquired how staff determined the valuation of illegally removed trees. Planner Walgren responded that the current ordinance does give the City the authority to assess a penalty. In the past, the Planning division staff has asked that the City arborist asses a value for the removed trees and that assessed value becomes the penalty. Commissioner Caldwell stated that she was concerned that the City may have been lax in the past in not pursuing the maximum penalty that is permitted under ordinance. Planner Walgren commented that the value of a mature tree can be very high. In the past, when illegally removed trees have come to staff's attention, staff has assessed fairly significant replacement tree values. Commissioner Kaplan stated that she is offended when an ordinance size tree is removed illegally. PLANNING COMMISSION MINUTES DECEMBER 14, 1994 PAGE - 17 - City Attorney Riback responded that the City has the right to require as a penalty the replacement of the removed trees with one or more new trees which in the opinion of the Community Development Director provides equivalent aesthetic qualities in terms of size, height and location of the tree that was unlawfully removed. Where the replacement tree would not provide equivalent aesthetic quality because of the size, height, etc., of the unlawfully removed trees, the Community Development Director shall calculate the value of the removed tree in accordance with the resolution as a guide. Upon determination, the Planning Director may require a cash payment to the City or the planting of the tree or trees. If a cash payment is required, that cash payment is to include the value of the tree and then doubled for the purpose of installation of the tree(s). Commissioner Caldwell stated that the City Attorney's explanation makes it clear that the condition should state "trees" and the type of trees that are to be planted. Chairman Asfour opened this item to public hearing at 10:10 p.m. Robin Atherton, landscape designer, informed the Commission that she had nothing to do with the trees that were removed and that there were no trees on the site when she was retained. She did not feel that the property owner would object to the planting of replacement trees. COMMISSIONERS MURAKAMI/SIEGFRIED MOVED TO CLOSE THE PUBLIC HEARING AT 10:12 P.M. THE MOTION CARRIED UNANIMOUSLY (7-0). Commissioner Kaplan inquired if there was a way to enforce the ordinance prohibiting removal of ordinance protected trees? She questioned if one or two additional trees being planted on this site would mitigate the trees that were removed or has the property owner planned the site out according to the design. She asked if the Commission could require a monetary penalty and if so, what would be done with the money? Commissioner Caldwell recommended that condition 10.a. be amended to read: "An itemized listing of proposed landscaping which reveals that the value of ;'_=-~_-, ___________ ieplacemerit:;.:Cre:es::f:or .1.i:~gall}!;:;.xeiiioved:„tr;ee:s is equivalent to the valuation of t e removed oak tree ($2,238)...." COMMISSIONERS CALDWELL/SIEGFRIED MOVED TO APPROVE RESOLUTION NO. SM-94-011 AMENDING CONDITION 10.a. TO READ AS RECOMMENDED BY COMMISSIONER CALDWELL. THE MOTION CARRIED UNANIMOUSLY (7-0). 7. V-94-021 - Hardy, 18534 Ravenwood Dr., request for Variance approval to legalize an existing room addition which is located 6 ft. from a side property line where 8 ft. is required per Chapter 15 of the City Code. The property is approximately 10,160 sq. ft'. and is located within an R-1-10,000 zoning district. PLANNING COMMISSION MINUTES DECEMBER 14, 1994 PAGE - 18 - Planner Walgren presented the staff report on this item. Commissioner Patrick inquired when the approval would become effective should the Commission approve this application? Planner Walgren responded that the room addition would be legalized effective this evening if the resolution is adopted. Chairman Asfour asked what the penalty would be for someone who has constructed without benefit of city approval. Planner Walgren responded that the Planning division staff did not assess a penalty. Staff processed this application using the same review fees that is used as if it was proposed up front. If the application is approved, the applicant would be required to pay double building inspection fees, the penalty that the Building division imposes. In addition, the applicant would need to bring the building up to conformance with current code requirements. Chairman Asfour opened this item to public hearing at 10:17 p.m. William Hardy, applicant, thanked Community Development Director Curtis and Planner Walgren for their very professional assistance. He informed the Commission that he would answer questions which it may have and would agree to comply with the conditions imposed. In response to Chairman Asfour's question as to whether he was aware that permits were required, he stated that he was aware that building permits were required for the addition. Chairman Asfour stated for the record that a letter was received by the Planning Commission from Larry Darwin stating that he had no objections to the application. COMMISSIONERS SIEGFRIED/PATRICK MOVED TO CLOSE THE PUBLIC HEARING AT 10:19 P.M. THE MOTION CARRIED UNANIMOUSLY (7-0). COMMISSIONERS PATRICK/SIEGFRIED MOVED TO APPROVE RESOLUTION N0. V- 94-021 PER STAFF'S RECOMMENDATION. THE MOTION CARRIED UNANIMOUSLY (7-0) . 8. DR-94-044 - Wells; 20316 Calle Montalvo, request for Design Review approval to construct a 478 sq. ft. single story addition to an existing 3,314 sq. ft. single story residence. Modification to the existing roof is also proposed with a 12/12 pitch and a maximum height of 25 feet which will add 1,112 sq. ft. of floor area within the attic areas pursuant to Chapter 15 of the City Code. The total proposed floor area is 4,904 sq. ft. The subject property is approximately 25,220 sq. ft. and is located within an R-1-20,000 zoning district. Planner Walgren presented the staff report on this item. Staff recommended approval of the resolution with an added condition to require the Storm Water Control Best Management requirement during the construction phase of the project. I PLANNING COMMISSION MINUTES DECEMBER 14, 1994 PAGE - 19 - Commissioner Patrick inquired if a certain vicinity was used by staff to determine the predominance of single story or a two story neighborhood. Planner Walgren responded that there is not a clear procedure to use. The zoning ordinance refers to the immediate neighborhood or the neighborhood. Staff tries to work with the applicant to determine what is a reasonable assessment of a particular neighborhood. Commissioner Kaplan felt that there were only 19 houses that should be considered as a neighborhood in this application. She questioned if 8 out of the 19 homes were considered as a predominance of a two story neighborhood. She would only consider the homes located on Cody Lane and Calle Montalvo as the neighborhood. Chairman Asfour commented that it was his opinion that one/two story predominance would depend on the location where the home was proposed. He felt that there were sufficient two story homes in the immediate area that would give the two story predominance and that he could support staff's definition of this neighborhood. Commissioner Kaplan responded that the Audrey Smith neighborhood was not a predominance of two story. Chairman Asfour opened this item to public hearing at 10:25 p.m. Mark Harrington, 15705 Poppy Lane, Monte Soreno, designer, informed the Commission that the Wells had two goals in the design of the home; the first goal was to improve the homes that are built in the area and the second goal was to enhance the exterior. Fred Wells, property owner, informed the Commission that he circulated copies of the plans to all of his neighbors and that he has received the neighbors support for the project. COMMISSIONERS SIEGFRIED/KAPLAN MOVED TO CLOSE THE PUBLIC HEARING AT 10:27 P.M. THE MOTION CARRIED UNANIMOUSLY (7-0). Commissioner Siegfried stated that he had no problem with the proposal. He concurred with Commissioner Kaplan's view point. He recommended that the ordinance relating to single or two story predominance be reviewed because the ordinance was drafted at a time when single story homes meant 15 feet. The ordinance did not take into account what has happened over time. COMMISSIONERS SIEGFRIED/ABSHIRE MOVED TO APPROVE RESOLUTION NO. DR- 94-044 PER STAFF'S RECOMMENDATION WITH THE INCLUSION OF THE STORM WATER CONTROL BEST MANAGEMENT REQUIREMENT DURING THE CONSTRUCTION PHASE OF THE PROJECT. THE MOTION CARRIED UNANIMOUSLY (7-0). 9. DR-94-041 - Sandie; 19400 Saratoga-Los Gatos Rd., request for Design Review approval to construct a 1,862 sq. ft. first and second story addition to an existing 4,861 sq. ft. residence (including existing detached garage and guest PLANNING COMMISSION MINUTES DECEMBER 14, 1994 PAGE - 20 - cottage) pursuant to Chapter 15 of the City Code. The subject property is approximately 2 acres and is located within an R-1-40,000 zoning district. - -------------------------------------------- Planner Walgren presented the staff report on this item. Staff recommended approval of this application with the inclusion of a condition that stipulates that the Storm Water Control Best Management requirement during the construction phase of the project. Commissioner Kaplan asked if the amount of the bond depends upon how much activity would go on in the vicinity of the tree or was there a fixed percentage amount affixed to the bond (page 115, last paragraph of Mr. Coate's report). Planner Walgren responded that there is a consistent formula that the City arborist will use in his recommendation and that it is roughly a 30 to 50 percent bond that would be required depending on the value of the tree. In this case, the 10°s was one of the lesser amounts that staff has seen. Commissioner Kaplan expressed concern that the 10 percent recommended by the City arborist was the least amount of bonding she has seen recommended by the City arborist. She questioned what was being protected, was it the work or the trees that were being protected with the recommended 10% bond? Commissioner Caldwell informed the Commission that the Tree Preservation Committee would be recommending to the Planning Commission that there be a minimal percentage deposit imposed with some flexibility that staff can use to insist on a higher amount of bonding if there is significant amount of activity (if the risk of tree damage is a lot greater). The minimum amount of deposit that the Tree Preservation Committee is recommending is 20 or 25 percent. A 10°s percent deposit was not contemplated by the Committee. She noted that the deposit amount has been determined by Mr. Coate. Planner Walgren mentioned that it was a discretionary decision to require the bonding. In this case, it was an added precaution. If a report is received from the City arborist that states that the measures for protecting ordinance trees are so straight forward that one just needs to maintain the fencing, staff can check to make sure that fencing is being maintained and that a deposit may not necessarily be required. Commissioner Kaplan noted that it has been her observation that construction fencing has not been maintained (i.e., fencing is down, rubble piled against the trees, etc.). Chairman Asfour opened this item to public hearing at 10:33 p.m. Rob Villas, architect, informed the Commission that he would answer technical questions. He addressed his theory for the basis for requiring the bond (the distance to the trees and the roots that were dug up). PLANNING COMMISSION MINUTES DECEMBER 14, 1994 PAGE - 21 - COMMISSIONERS PATRICK/SIEGFRIED MOVED TO CLOSE THE PUBLIC HEARING AT 10:35 P.M. THE MOTION CARRIED UNANIMOUSLY (7-0). COMMISSIONERS PATRICK/SIEGFRIED MOVED TO APPROVE RESOLUTION NO. DR- 94-041 PER STAFF'S RECOMMENDATION WITH THE INCLUSION OF A CONDITION TO REQUIRE STORM WATER BEST MANAGEMENT PRACTICE DURING CONSTRUCTION BE UTILIZED. THE MOTION CARRIED UNANIMOUSLY (7-0). DIRECTOR'S ITEMS 1. Planning Commission Retreat Agenda Community Development Director Curtis informed the Commission that a retreat has been scheduled for January 13, 1995. The retreat is scheduled to begin at 8:30 a.m. and to end at approximately 2:30 p.m. He stated that he would be working with Chairman Asfour to finalize the agenda. He requested topics for discussion be submitted to be reviewed by staff and Chairman Asfour. Commissioner Abshire requested that the City Engineer be invited to the retreat so that he could explain what he does. Commissioner Caldwell requested that discussion on what can be expected once a resolution is approved to ensure compliance with the conditions contained in the resolution of approvals (what happens in the inspection process). She requested that the retreat start at 9:00 a.m. She also recommended that there be discussion relating to the conceptual plan approval process. ' Commissioner Siegfried concurred that there be discussion relating to the conceptual plan process. The theory he saw in 'the conceptual plan process was to try to move the project along in an expeditious fashion. It was never in his mind that the conceptual plan process could be appealed to the City Council, changing the intention of the process. He questioned what was the sense of approving a conceptual plan only to have the Commission's review appealed to the City council. The Council changes the plans and then the changes return to the Commission. He felt that something was wrong with the concept, especially when it added time to the process, not shortened it. Commissioner Kaplan asked if there were any other ordinances that should be revisited (i.e., predominance). Commissioner Siegfried felt that the single/two story predominance should be changed to that of height, not stories. COMMISSION ITEMS 1. DR-93-012; Pancholy - 21215 Chadwick Ct. - Review of Proposed Exterior Modifications. Planner Walgren presented the staff report on this item. Chairman Asfour stated that he could not support elimination of the veneer. He inquired if staff felt that the terrace would not ,.•• PLANNING COMMISSION MINUTES DECEMBER 14, 1994 PAGE - 22 - affect the properties visual impact? Planner Walgren responded that the exhibits reflect that the lowest elevation shows the revised terrace and that from a distance will appear virtually the same. Therefore, staff could support the terrace request. Commissioner Caldwell concurred with staff's recommendation. She indicated that the Commission was firm about the use of veneer or some element so that the building does not give the appearance of a three story building. IT WAS THE CONSENSUS OF THE COMMISSION TO DIRECT STAFF TO APPROVE THE TERRACE ADDITION AND TO DENY THE REQUEST TO ELIMINATE THE STONE VENEER ON THE LOWER ELEVATION. Mr. Jerry Cates, project designer, 276 Harbor Valley Drive, presented the Commission with a history of the project. He informed the Commission that it has been found that the use of stone veneer would be expensive. He informed the Commission that the property owner would like to substitute the veneer with landscaping. He informed the Commission that he had a detailed landscape plan for its review. Chairman Asfour commented that vegetation may die or disappear. He felt that the veneer element assisted in the Commission's decision to approve the design application and that the Commission cannot take cost of material into consideration in the approval process. Mr. Cates inquired if the Commission could make any kind of a finding through the landscaping if a bond was posted to ensure landscape survival. Commissioner Caldwell commented that the problem with Mr. Cates' suggestion was that the Design Review Handbook which the Commission is required to comply with in approving homes explicitly states that it is not to rely on landscaping to mitigate concerns. Commissioner Siegfried noted that in the case of the recommendation for landscape screening in the Constantin's application was for the propose of screening for privacy. DIRECTOR'S ITEMS (CONTINUED) Community Development Director Curtis informed the Commission that the Constantins own two pieces of property (the upper and lower pieces of property). Staff became aware that the Constantins owned both parcels at the time that they filed for a lot line adjustment in August 1994. Staff had the option at that point, per the City ordinance and Subdivision Map Act, to require the two properties to merge. It was his position at that point in time not to proceed with the merger because the applicant had gone through an extensive investigation and has spent a lot of money in the technical report. He felt that the applicant should have the opportunity to comply with the conditional Certificate of Compliance. If the applicant chooses not to do anything else, then merging of the lot is to be seriously considered. To that end, he sent a certified letter to PLANNING COMMISSION MINUTES DECEMBER 14, 1994 PAGE - 23 - the Constantine indicating the City's "Notice of Intention to Determine the Status between the two parcels" and that the City may be considering initiating a merger. The Constantine would have 30 days to file formal challenge to the action. The merger would come before the Planning Commission at a public hearing. City Attorney Riback informed the Commission that the Constantine were notified 12 days ago of the action taken by the Community Development Director. The reason that the action was taken was to protect the City's right to consider a merger at some future date. Once the notice is recorded, if the Constantine change ownership of one of the two lots, it would not matter because ownership is frozen as of the date that the notice is recorded. He further clarified that the reason this action was not taken a couple of years ago was because no one asked who owned the parcel down below and that the Constantine did not offer ownership information. The whole process would be placed in abeyance until the variance, design review and lot line adjustment issues were fully resolved. Commissioner Siegfried inquired as to how long it was known by staff that the Constantine owned the two parcels. Planner Walgren responded that staff became aware that the Constantine owned both parcels at the time that they applied for a lot line adjustment this last summer. Commissioner Siegfried felt that the City should have informed the Constantine that the City may be considering a merger several months ago. Commissioner Kaplan inquired if it would not have been better for the Commission and in fairness to the applicant to have a good legal presentation included in the staff report at the onset when there are going to be legal issues. She stated that she would have preferred to have background information presented to the Commission to assist it in its decision making process. Community Development Director Curtis stated that it was a very complicated set of issues. All that he has heard from the applicant or the applicant's representative was that if they could not build a house, then the City needs to be prepared to purchase the property. He felt that the City needed to be very cautious because this was not an inverse condemnation situation. This was a development proposal. Commissioner Kaplan commented that at the original meeting, it was stated that the property owner had to be able to place something on the land. She did not feel that was the impression that she perceived from the material that the City Attorney's office provided. That was why she stated that in the course of discussion, there were several points that were made along the way where everyone believed that a fruit orchard could be placed on the lot under the current zoning district because the Commission was told that the property owners had to be able to do something that was listed in the zoning ordinance. But that was not what City Attorney Riback was telling the Commission. ,.,,,. PLANNING COMMISSION MINUTES DECEMBER 14, 1994 PAGE - 24 - City Attorney Riback stated if there was a legal lot of record that had certain zoning on it, that a reasonable use has to be allowed on the site. A list of uses were reviewed that were not residen- tial. If you create a legal lot of record, you need to consider the appropriate land use. The issue in this case was whether the City was going to approve a developable lot. Commissioner Siegfried asked under what circumstances can the City force the merger. City Attorney Riback responded that if the property meets the criteria that is set forth in the Subdivision Map Act, then a merger can be effective and can be discretionary. The basic criteria required for a merger are that you have two parcels and that at least one parcel has to be unimproved. At least one parcel has to be either substandard in size or has to have a substandard slope stability and that the lot was not legally created at the time that it came about. Commissioner Siegfried commented that had the Commission known this information sih months ago, he did not know if all this debate would have taken place. The Commission would have stated that the answer would be that of a merger. City Attorney Riback informed the Commission that the reason that staff did not inform the Commission of the Notice of Intent 12 days ago was because they did not want to leave the perception with the applicant that the Commission would make a decision based upon the knowledge that a merger was in the background. He knew that the Commission would not be influenced by the knowledge of the merger but that he did not want to give the applicant any thought of that. Commissioner Caldwell clarified that staff was concerned that the applicant would think that the Commission would not be "gutsy" enough to deny the applications on its own merits because there may be an out with a merger? City Attorney Riback responded that given the way the applicant tended to think, that was his feeling. Commissioner Kaplan responded that it does not make it appear as if the Commission can make a rational decision. Community Development Director Curtis stated that he anticipated that this case would end up in court and that when you get into vesting rights you need to make sure that there was fairness involved. He was trying to make sure that the City was fair in this case. Written 1. City Council Minutes 11/16 & 11/29/94 Oral City Council .a. PLANNING COMMISSION MINUTES DECEMBER 14, 1994 PAGE - 25 - ADJOURNMENT - There being no adjourned at 11:10 p.m. to 7:30 p 13777 Fruitvale Avenue, Saratoga, IRMA TORREZ MINUTES CLERK further business, the Commission .m., Wednesday, January 11, 1994, CA. PC121494.SAR