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HomeMy WebLinkAbout06-25-2003 Planning Commission Minutes MINUTES SARATOGA PLANNING COMMISSION DATE: Wednesday, June 25, 2003 PLACE: Council Chambers/Civic Theater, 13777 Fruitvale Avenue, Saratoga, CA TYPE: Regular Meeting Acting Chair Zutshi called the meeting to order at 7:00 p.m. ROLL CALL Present: Commissioners Barry, Garakani, Nagpal, Schallop, Uhl and Zutshi Absent: Chair Hunter Staff: Director Tom Sullivan, Associate Planner John Livingstone and Associate Planner Christine Oosterhous PLEDGE OF ALLEGIANCE APPROVAL OF MINUTES – Regular Meeting of June 11, 2003. Motion: Upon motion of Commissioner Nagpal seconded by Commissioner Uhl, the Planning Commission minutes of the regular meeting of June 11, 2003, were adopted with minor correction to page 2. (7-0) ORAL COMMUNICATION There were no Oral Communications. REPORT OF POSTING AGENDA Director Tom Sullivan announced that, pursuant to Government Code 54954.2, the agenda for this meeting was properly posted on June 19, 2003. REPORT OF APPEAL RIGHTS Director Tom Sullivan announced that appeals are possible for any decision made on this Agenda by filing an Appeal Application with the City Clerk within fifteen (15) calendar days of the date of the decision, pursuant to Municipal Code 15.90.050(b) except for Item #1, for which the Planning Commission action is final. CONSENT CALENDAR There were no Consent Calendar Items. Saratoga Planning Commission Minutes of June 25, 2003 Page 2 *** PUBLIC HEARING - ITEM NO. 1 APPLICATION #02-039, SARATOGA OAKS HOMEOWNERS ASSOCIATION, Appeal of an Administrative Decision: The Saratoga Homeowners Association has filed an appeal of an administrative decision made pursuant to Municipal Code Section 15-50.120, Tree Regulations, Violations Penalties. The administrative decision requires $35,439.00 in cash and $17,719.50 in native replacement tree for removing a total of 12 trees without a City issued tree removal permit. (CHRISTINE OOSTERHOUS) Associate Planner Christine Oosterhous presented the staff report as follows: • Advised that the Saratoga Oaks Homeowners Association is appealing the monetary fines and replacement requirements imposed for 12 trees that were removed from Saratoga Oaks without benefit of permits. • Informed that the Municipal Code sets the criteria for monetary fines based upon the value of the removed trees. • Said that originally three trees were removed improperly without necessary permits. At that time, the Homeowners Association was warned of the rules for tree removal permits. However, afterwards an additional nine trees were later removed. • Said that the HOA is appealing the penalties (both the fine and tree replacement requirements). • Advised that staff has prepared a draft resolution to uphold the administrative action. Commissioner Barry asked staff to whose attention the warning was made following the improper removal of the first three trees. Associate Planner Christine Oosterhous replied the attorney for the HOA. Commissioner Barry restated that the HOA, despite a warning after the improper removal of the first three trees, later proceeded with the removal of nine more trees. Commissioner Uhl asked why the attorney was notified instead of the HOA. Associate Planner Christine Oosterhous replied that the applicants would be able to explain why their attorney was involved early on. Acting Chair Zutshi opened the Public Hearing for Agenda Item No. 1. Mr. Tom Sander, 14652 Placida Court, Saratoga: • Identified himself as the President of the HOA. • Said that he did not have much to add. • Stated that these trees were not removed for financial gain or any ulterior motive but rather strictly for reasons of safety. • Advised that the verbal notification to the attorney was never relayed on to him. • Pointed out that they are an inexperienced board and that he has the longest tenure at three years. • Added that they have just recently changed their property management company. Saratoga Planning Commission Minutes of June 25, 2003 Page 3 • Said that they didn’t request permits and that task simply slipped through the cracks. Everyone thought that someone else had done so. • Said that $17,000 in replacement trees is being imposed upon them and they do not believe that trees are a good choice in this area due to the steep slope. • Asked that they be allowed to have their proposed landscape plan installed rather than to have the City dictate the planting of trees. Commissioner Garakani asked if there is any justification for the concerns expressed about dangers. Mr. Tom Sander said that these shallow rooted trees are inappropriate per several Arborist’ reports. Commissioner Garakani asked Mr. Sander if the HOA has at other times removed other trees with the required permits. Mr. Tom Sander replied that three huge Sycamore trees had to be taken down, as they were hollow and structurally unsound. They had had an Arborist report prepared, the City’s Arborist had been consulted and the necessary permits obtained. Commissioner Garakani asked Mr. Sanders how he knew that the necessary permits had been obtained in that instance. Mr. Tom Sander replied that he didn’t see the permit itself but had been told that it had been obtained. Commissioner Garakani asked why no permit was obtained this time around. Mr. Tom Sander said that they had thought that their vendor had taken care of that step. Commissioner Nagpal sought clarification to confirm that the Commission is not looking at plans for replacement trees this evening but rather is simply evaluating the fines and requirements for tree replacement that have been imposed. Associate Planner Christine Oosterhous replied correct and added that these replacement trees do not have to be planted in the exact same location as those removed. Said that native replacements are being required. Commissioner Nagpal asked Mr. Sander if the HOA was aware of the requirement for a tree removal permit at the time that the nine trees were cut down. Mr. Tom Sander replied yes. Commissioner Nagpal asked if he contends that this detail had simply “just slipped through the cracks.” Mr. Tom Sander replied yes. Commissioner Nagpal asked how the first three trees came to be improperly removed. Mr. Sander advised that one homeowner, without the permission of the HOA, did the removal of the first three trees without permits. Saratoga Planning Commission Minutes of June 25, 2003 Page 4 Commissioner Nagpal asked Mr. Sander how the HOA can prevent such an occurrence from happening again. Mr. Tom Sander advised that they have changed the landscaping contract to assure that such an occurrence is not repeated. Commissioner Barry asked Mr. Sander if their attorney or property manager is here tonight. Mr. Tom Sander replied that the property manager is present. Acting Chair Zutshi asked if the HOA Board makes big decisions for Saratoga Oaks. Mr. Tom Sander replied yes. Added that the HOA Board had approved the contract for the removal of the nine trees. Acting Chair Zutshi asked Mr. Sander if the Board was aware of the need to obtain permits. Mr. Tom Sander said they knew the process but was not sure if it was necessary in this case. Commissioner Nagpal asked Mr. Sander when the three Sycamore trees previously mentioned were removed. Mr. Tom Sander replied 2000 or 2001. Commissioner Nagpal asked if this was before the first set of three trees was improperly removed. Mr. Tom Sander replied yes. Commissioner Uhl clarified that Mr. Sander contends that the Board approved the removal of the trees and assumed that the Tree Company obtained necessary permits. Mr. Tom Sander replied that they had thought that the permits would be obtained as necessary. Commissioner Uhl brought up the warning given following the improper removal of the first three trees. Mr. Tom Sander reminded that the removal of those three trees went against the rules of the HOA and that they had notified the City of that activity. Commissioner Uhl reminded that the HOA was given a warning this first time. Mr. Tom Sander advised that he was unaware of said warning. Commissioner Uhl asked Mr. Sander why an attorney was involved at that time. Mr. Tom Sander said that the Board was unsure how to handle the situation, being an inexperienced Board, so they contacted their attorney. Saratoga Planning Commission Minutes of June 25, 2003 Page 5 Commissioner Uhl questioned whether the attorney was acting on behalf of the HOA in that matter. Commissioner Garakani asked if the attorney is present this evening. Mr. Tom Sander replied no. The attorney was not asked to come to this meeting. The property manager, Mr. Bill Hubbard, is present. Commissioner Barry said that she sits on an HOA Board herself and asked Mr. Hubbard what his role was. Mr. Bill Hubbard said that he relies on the professional experience of the vendors used and come on board in June 2002. Added that the landscaping company usually dealt with permit requirements. Commissioner Barry asked Mr. Hubbard how long he has been a property manager. Mr. Bill Hubbard replied five years. Commissioner Uhl asked whether Mr. Hubbard is using the same landscape company that removed the trees. Mr. Bill Hubbard replied no. Added that the attorney is on the case to deal with the resident who removed the first three trees improperly. Commissioner Uhl asked staff to confirm that notification was made to the attorney. Associate Planner Christine Oosterhous said that she could confirm that the conversation with the attorney occurred following the improper removal of the first three trees. Mr. Pete Joachim, Stone Bridge Drive, Saratoga: • Said he has been involved in community activities over the years. • Stated that his property abuts Saratoga Oaks. • Informed the Commission that about four to five years ago Saratoga Oaks’ tree company took down a redwood tree on his property. He was unable to contact anyone affiliated with Saratoga Oaks to complain and simply gave up trying. He added that their tree people often come onto his property • Pointed out that these 12 trees were removed one year ago and that he was the one to call the City to complain. Nothing has been done over the last year about this situation. • Expressed concern that Saratoga Oaks does not plan to replace these trees. • Said that he does not really care about the fine but that he is looking for protection from further tree removals. • Stated that he does not want to look down onto the Saratoga Oaks swimming pool. • Added that since the removal of these trees he hears the noise from the pool use that he never heard before the trees were removed. Commissioner Garakani asked Mr. Joachim where his home is located. Mr. Pete Joachim said his house is the first one on Stone Bridge Drive. Saratoga Planning Commission Minutes of June 25, 2003 Page 6 Commissioner Garakani asked if he filed a complaint with the City. Mr. Pete Joachim replied yes. Commissioner Garakani asked Mr. Joachim if Saratoga Oaks notified him prior to the tree removal. Mr. Pete Joachim replied no. Added that it was a total surprise to find the trees gone when he returned from vacation last July. Said that he would like to be shielded from looking at the pool. Commissioner Uhl asked Mr. Joachim how big the redwood tree was that was cut down on his property. Mr. Pete Joachim replied very big. Commissioner Uhl asked why it was done. Mr. Pete Joachim said he had no clue why, saying he thinks they were out of control. Acting Chair Zutshi asked Mr. Joachim if his property has the same slope on the back. Mr. Pete Joachim replied yes. Acting Chair Zutshi asked if there are trees planted on his slope. Mr. Pete Joachim replied yes, there are pine trees approximately 20 to 30 years old. Acting Chair Zutshi asked if the trees are growing straight up or leaning over the slope. Mr. Pete Joachim replied straight up. Mr. Tom Sander said that they move slowly and deliberately at Saratoga Oaks. Pointed out that there is no way to prove that their tree company removed the redwood on Mr. Joachim’s property. Acting Chair Zutshi closed the Public Hearing for Agenda Item No. 1. Commissioner Garakani said that he supports the staff recommendation, that it appears this HOA Board does not know procedures but that City Codes are well defined and straightforward and these Codes cannot be twisted tonight. Commissioner Nagpal concurred that guidelines are in place and that, while she can empathize with this HOA Board, it is hard not to support staff’s recommendations. Commissioner Uhl: • Agreed that the City has to send a message and the rules are very clear. • Pointed out that the HOA did notify the City when the first three trees were improperly removed. • Said that it is unfortunate that their attorney is not present. • Said that while he agrees a fine needs to be levied, the question in his mind is whether to reduce it. Saratoga Planning Commission Minutes of June 25, 2003 Page 7 Commissioner Barry: • Agreed with Commissioner Uhl. • Said that trees are a major issue and a value to the community. • Stated that it is important to uphold Codes and hold those who do not do so accountable. • Pointed out that the HOA has a fiduciary duty and cannot get around that. • Said that there is no basis to change staff’s recommendation. Acting Chair Zutshi reopened the Public Hearing for Agenda Item No. 1. Mr. Bob Kibort: • Said he is a homeowner at Saratoga Oaks. • Pointed out that the hills are unstable, a point verified by soils engineers. • Said that other trees removed were hollow in the middle. • Stated that if they had come to the City prior to the removal, the City would probably have given permission for the removal. Acting Chair Zutshi said that there are proper channels. Mr. Bob Kibort said that this is a bureaucratic approach and that this situation was not an act of malice but omission. Commissioner Garakani pointed out that the permit process allows neighbors to be notified. In this instance, the neighbors’ rights have been taken away. Mr. Bob Kibort insisted that the trees were a danger. Commissioner Garakani questioned whether this was an eminent danger. Mr. Bob Kibort replied yes. Director Tom Sullivan clarified that the three Sycamore trees removed had proper permits. Added that if this request had gone through the appropriate process, they probably would have received a Tree Removal Permit but with mitigation imposed. Ms. Barbara Fonner: • Said she is the Secretary of the Saratoga Oaks HOA. • Apologized for the mistake made. • Said that concern over the trees and landscaping is of prime importance. This tree removal came about when plans to replace a retaining wall required removal of the trees. • Reiterated that this is simply and purely a mistake. • Pointed out that the Sycamores were removed with proper permits and that they thought the landscape company was going to get the necessary documents like they had when the Sycamore trees were removed. • Said that everything done is performed through their management and landscape companies and that they simply assumed that necessary permits would be obtained as they had been done before. • Assured that they would not wantonly cut down trees. Saratoga Planning Commission Minutes of June 25, 2003 Page 8 • Stated that a fine would be better spent on replacing trees and landscaping and retaining walls. Commissioner Garakani asked if the landscaper who arranged the removal of the Sycamore trees included a permit expense on the contract. Ms. Barbara Fonner: • Said that she was sure the permit was obtained because the City was highly involved in the process. • Said that the contract for the cutting of these recent nine trees stated that the HOA was responsible for obtaining permits and that the tree cutter was not responsible for getting the permits. • Added that they believed either their management or landscape companies would handle that detail. Unfortunately, between the Board, the landscape and management companies, the need for the permit fell through the cracks. • Asked the City to work with them on this and allow these funds for the fine to be applied to the landscaping. Commissioner Uhl asked staff for clarification on the fine and replacement fee assessed. Director Tom Sullivan said that the $17,719.50 amount is for on-site replacement trees, to purchase and install trees on their property. The $35,000 is the assessed value to the community for the removed trees. Commissioner Nagpal asked if the replacement value is $35,000. Director Tom Sullivan advised that the replacement value amount is based upon the impact. Mr. Bill Brenchly: • Informed that he lives right in the center. • Said that after the removal of the trees it looked like a war zone but that these trees were failing and tipping. • Assured the Commission he believes in the importance of trees and has donated one million dollars to environmental groups for trees. • Said that there is no question that the site must be replanted but that the hillside cannot take trees of that size. • Stated that he lives in Saratoga due to trees, the environment and the schools. Commissioner Uhl asked Mr. Brenchly what he would have the Commission do in this matter. Mr. Bill Brenchly said that it is clear that the replanting expense ($17,000) has to happen but that the $35,000 fine is not appropriate since it was clear these trees needed to come out. Mr. Don Rubio: • Stated he is the Treasurer for the HOA. • Said he has watched the slope deteriorate over the years and come down. • Said he reads all contracts and has a history of getting necessary permits. This case is an oversight. Acting Chair Zutshi reclosed the Public Hearing for Agenda Item No. 1. Saratoga Planning Commission Minutes of June 25, 2003 Page 9 Commissioner Barry: • Said that the Commission has read the HOA’s packet and that it is aware that the hillside is failing. • Stated that she asked their engineer if the danger was imminent and was told no. • Added that this means there was sufficient time available to apply for permits. • Said that this represents an internal problem and that the property management company or attorney may have failed them. The result is that the HOA has violated City Code. • Said that the Community Development Director has clarified that the $35,000 fine represents the valuation of the nine trees and the impact of their loss. It is not just a punitive fine. • Added that the value of these now missing trees will be replanted elsewhere in the City. Commissioner Uhl: • Said that no one disagrees with the $35,000 figure. However, he suggested that the difference be split as this act was not done deliberately but rather was a mistake. • Reminded that this is a densely treed area. • Said that he agreed with everything the Planning Commissioners have said in that the Association failed in their role in this instance. Commissioner Garakani said that it was not a bad idea to reduce the fine. Director Tom Sullivan clarified that the HOA will be required to plant $17,719.50 worth of trees on the Saratoga Oaks property and not necessarily on the hillside. Commissioner Garakani reminded of the neighbor’s concern for screening. Commissioner Uhl said that something would have to be replanted on the hillside. Director Tom Sullivan said that the landscape architect would have to be relied upon to select species of trees that will bind to the soil. Commissioner Garakani asked if this plan will come to the City for review. Director Tom Sullivan said that the plans for the proposed retaining wall would. Associate Planner Christine Oosterhous clarified that a Condition requires the landscape plan to come to the City for approval. Commissioner Nagpal suggested cutting the $17,719.50 amount in half. Director Tom Sullivan clarified that the $35,000 fine comes to the City. Commissioner Uhl said his recommendation was not to cut the amount for replanting but rather to reduce the $35,000 fine by $8,500. Director Tom Sullivan questioned the rationale for such a reduction since the episode when the first three trees were initially removed without permits was used by the City to warn the attorney for the HOA about the requirement for tree removal permits. Saratoga Planning Commission Minutes of June 25, 2003 Page 10 Commissioner Nagpal said that the applicant was warned and told that the City would not impose a fine at the time that the first three trees were improperly removed. Therefore, she suggested that since three trees were not penalized, 25 percent of the total fine could be removed from the $35,000 or $8,000. Acting Chair Zutshi asked for a straw poll. Commissioner Garakani was okay with the reduction in fine. Commissioner Schallop expressed support for the current draft resolution. Commissioner Barry agreed, saying that this reduction would reward them for ignoring the warning they were given. Added that the property management and /or attorney failed. Supported the staff resolution. Acting Chair Zutshi said that she supports the staff recommendation and cannot justify a reduction in the fine. Motion: Upon motion of Commissioner Barry, seconded by Commissioner Schallop, the Planning Commission took action to deny an appeal and uphold the Administrative Decision to impose upon Saratoga Oaks Homeowners Association a $35,439 cash fine and $17,719.50 in native tree replacements, adopting the resolution drafted by staff, by the following roll call vote: AYES: Barry, Garakani, Nagpal, Schallop and Zutshi NOES: Uhl ABSENT: Hunter ABSTAIN: None Commissioner Garakani suggested an amendment to allow the use of some of the $35,000 fine to plant directly on site at Saratoga Oaks. Commissioner Uhl added a request that neighbors also be consulted. Motion: Upon motion of Commissioner Barry, seconded by Commissioner Schallop, the action of the Planning Commission was amended to include the provision to allow some of the $35,000 fine to be used for planting on site at Saratoga Oaks and to require the consultation with neighbors about replacement landscaping, by the following roll call vote: AYES: Barry, Garakani, Nagpal, Schallop, Uhl and Zutshi NOES: None ABSENT: Hunter ABSTAIN: None *** PUBLIC HEARING - ITEM NO. 2 Saratoga Planning Commission Minutes of June 25, 2003 Page 11 APPLICATION #03-006 (APN 366-43-007) – CHEN, 12161 Parker Ranch Road: Request for Fence Variances to the front and side yard setbacks, design and height requirements. The lot size is approximately 1.01 acres and the site is zoned Hillside Residential. (JOHN LIVINGSTONE) Associate Planner John Livingstone presented the staff report as follows: • Advised that the applicant is seeking Fence Variances for front and side yard fences, including setbacks, design and height requirements. The Code requires that the fencing be open and contain no sharp points. This fence design incorporates decorative points, which the applicant is seeking to keep. • Recommended denial for all Variances except for the northern fence, with the removal of the decorative points. For the northern fence, the necessary findings, all of which must be made in the affirmative, can be made. The first finding, that special circumstances exist so that without a Variance the applicant is deprived of privileges enjoyed by other similar property owners in the area. The unique topography of the lot can be considered a particular circumstance existing for this property. Additionally, since there is a five-foot drop from this lot to the lot below, lack of this fencing deprives the safe use of much of the front yard. The second finding that this Variance would not represent a special privilege can be made in that there is the unique circumstance with the hazardous five-foot drop. The three required finding, that this Variance would not be a detriment can also be made in that the fence would help reduce the possibility of an accidental fall. • Said that the applicant has provided additional material this evening. Commissioner Barry asked if other potential mitigation had been considered, such as landscape plantings as a barrier from the five-foot drop, which might equally solve the safety concerns. Associate Planner John Livingstone said that the Commission could look at other alternatives. Said that staff finds the fence to be the safest solution in that location and reminded that it is an existing fence. Commissioner Garakani asked what the objection is to decorative points. Associate Planner John Livingstone said that sharp points are prohibited in Code. Director Tom Sullivan clarified that the restriction is to assure that wildlife does not become impaled upon the fence. Acting Chair Zutshi opened the Public Hearing for Agenda Item No. 2. Mr. Lee Wieder, Applicant’s Representative: • Declared his belief that these Fence Variances solve safety concerns due to potential hazardous conditions. • Said that staff has not had an opportunity to see their letter distributed this evening. • Stated his agreement with the findings for the north fence. • Added that it would be best to retain the fence in its current location since if it were moved it would be more visible to the neighbors. • Gave his interpretation of the required findings. • Said that allowing his client to keep the 10 feet of front fencing as it serves as a secured pedestrian gate (Item II, page 2 of their letter) in its present location would not represent special privilege or be detrimental. Saratoga Planning Commission Minutes of June 25, 2003 Page 12 • Said that allowing the front fence between the north property line to the main entrance to remain at less than 30 feet back from the property line (Item III, page 2 of their letter) can be supported due to special topographic conditions, to serve as a safeguard for children and pets and would not represent a special privilege or be detrimental. • Said that allowing the south fence to remain at less than 20 feet setback from the property line can be supported because exiting the property is challenging due to the curves in the road and the difficulty in seeing traffic. This would not represent a special privilege or be detrimental. • Said they agree with the requirements except for two conditions of approval, Conditions 3 and 11. Acting Chair Zutshi asked for the distance. Mr. Lee Wieder questioned if she is referring to the frontage onto Parker Ranch Road. Director Tom Sullivan provided the response at 115.3 feet. Robert Yorio, Esq., Attorney for the Applicant: • Stated that they are in litigation with the HOA and the City but that this issue would not impact said litigation. • Pointed out that if landscaping were to be used as a barrier in lieu of a fence, that landscaping would still have to be planted and maintained, which could be a hazardous situation for the maintenance people who risk the five-foot drop. • Asked that the fence be kept in its current location. Acting Chair Zutshi asked Dr. Chen how long she has resided on the property. Dr. Chen replied since 1991. Acting Chair Zutshi asked whether the previous owner had a fence on that side. Dr. Chen replied no. Commissioner Uhl asked Dr. Chen if she were aware of the HOA rules for fencing. Dr. Chen replied no, she was not very clearly aware of the requirements. Commissioner Garakani asked Dr. Chen when this fence was installed. Dr. Chen replied approximately a couple of years ago. Commissioner Nagpal asked Dr. Chen why she felt this fencing was necessary. Dr. Chen replied that the driveway and courtyard area where her children play include slopes going up and going down. Balls can easily and quickly roll downhill directly onto the street with the risk that children would chase them onto the street. Commissioner Garakani asked whether Dr. Chen has the option to bring the fence up the hill in order to meet setback requirements. Saratoga Planning Commission Minutes of June 25, 2003 Page 13 Associate Planner John Livingstone said yes, the applicant has that option. Commissioner Garakani asked if and why Dr. Chen would object to that option. Dr. Chen replied that the fence is currently on the lowest spot where it is less visible. If it is brought up to where it is permissible, the fence would be on the highest spot and more visible, which would be more intrusive and not to the taste and feel of the neighborhood. Commissioner Garakani asked if someone complained about the placement of the existing fencing. Associate Planner John Livingstone replied yes. The complaint started as the fencing was being installed. Commissioner Garakani asked why this matter is here today since it is already in litigation. Associate Planner John Livingstone said that this hearing represents a part of the administrative remedies available. Applying for Variances shows that the applicant has exhausted that remedy. Dr. Chen added that at the time she installed the fencing she was unaware of the Variance options at that time. William Clayton, Esq., Attorney for the Parker Ranch Road HOA: • Stated that there is already an abatement order imposed and that if the Planning Commission proceeds on these Variance requests, it would cause greater entanglements and less clarity. • Said that staff’s recommendation is based upon the applicant’s argument for safety concerns. However, the applicant had two young children when they moved onto the property in 1991. Those children are no longer small. There was no fencing when the family moved in and a photograph circa 1991 was distributed to demonstrate that fact. • Stated that the concern for safety is solely hypothetical. • Added that mature landscaping is already in place to serve as a physical barrier to the five foot drop and that in the 12 years the family has been on this property not one incident of injury occurred. Said that the issue of safety was brought up as a concern during the abatement process. • Informed that there is a standard process to follow, as outlined in the CC&Rs, and that Dr. Chen knew and followed that process for the installation of the gate posts but not for the rest of the installation. • Said that as a result, the HOA is now in litigation with her. • Reiterated that he does not believe there is any mitigating issue to support this fencing Variance. Commissioner Garakani asked Mr. Clayton how he would like to see this proceed. Attorney William Clayton said that the CC&Rs require plans be submitted to an HOA Architectural Control Committee for review and approval. Commissioner Barry pointed out that the process is on going to deal with the HOA and this litigation. That is not the purview tonight. Resolving the situation for the HOA is not a part of process. Attorney William Clayton said that there is a conflict between this administrative process and the judicial process. Saratoga Planning Commission Minutes of June 25, 2003 Page 14 Commissioner Barry clarified that this item is before the Planning Commission due to Land Use issues in the form of a Variance request. Commissioner Uhl asked Attorney Clayton whether the HOA’s rules are similar to the City’s. Attorney William Clayton said they are identical. In fact, their CC&Rs where amended to take the City’s setbacks into account. Commissioner Uhl asked when that occurred. Attorney William Clayton replied 1990. Commissioner Uhl pointed that this is before Dr. Chen moved in and said that she should have received a copy of the CC&Rs at the time of purchase. Director Tom Sullivan warned the Commission to focus on the application before it and make its own determination as to whether the required findings for the Variances can be supported. Commissioner Nagpal asked if there have been other fence requests made to the HOA that have been approved. Attorney William Clayton replied yes. Commissioner Nagpal asked how many. Attorney William Clayton said he was unsure. Said that on occasion work had begun prior to necessary approvals but the owners complied with the required approval process once aware of the need to do so. Commissioner Nagpal asked if Dr. Chen was made aware of the requirements. Attorney William Clayton said yes. He said that copies of relevant information was provided to Dr. Chen when the posts were initially installed. Ms. Anne Gadd: • Said that she is present to read a letter from Dr. Chen’s neighbors, John and Pam East, into the record, which makes the following points and recommendations. • Stated that they bought their home in Parker Ranch due to the open feeling of the community. • Advises that the fences in question were built against regulations a few years ago and the stated reason was safety. • Suggested that the home should not have been purchased if it was considered too dangerous for its family. • Pointed out that the illegal fence adversely impacts their home. • Suggested three options. One, to change the design to comply with requirements. Two, to go through proper channels to change the fencing restrictions. Three don’t build the fence at all. • Said that she has known Mr. and Mrs. East for 30 years and that the view from their property looking up at this fence gives the appearance of San Quentin prison. Saratoga Planning Commission Minutes of June 25, 2003 Page 15 • Reminded that this is not a case of seeking permission to build a fence but rather to keep an improperly installed fence. • Stated that Pam East wrote Dr. Chen a letter in 1999 warning that such a fence is against the rules. Commissioner Garakani asked Ms. Gadd if the East property is next door on the north side of this property. Ms. Anne Gadd: • Replied yes. • Pointed out that the retaining wall that represents the five foot drop that is of concern to Dr. Chen is actually 10 feet away from their property line. • Added that this fence is really ugly and should have been done legally. Commissioner Garakani asked about chain link fencing on the East’s property and asked what it is for. Ms. Anne Gadd said that this was legally requested fencing. Added that since this is deer grazing country, this fencing is permitted to keep deer out of a portion of the rear yard landscaping however front yards are supposed to be kept open. Director Tom Sullivan clarified that the distance between the retaining wall and the property line is four feet. Jolie Houston, Esq., Berliner, Cohen, Attorney for John and Pam East: • Said that necessary factual findings to support this Variance request cannot be met, as there is nothing unique. • Pointed out that they can have legal fencing within the proper front and side yard setbacks. • Stated that safety concerns have not been supported by any evidence. • Reminded that existing fencing regulations have been previously reviewed and approved by the City’s Planning Commission and Council as well as by the Parker Ranch HOA. • Added that if the regulations don’t apply any more, they can be amended or removed from the Zoning Code. • Said the Commission should not grant a Variance for one property when there are existing mitigation options including the natural barrier of landscaping. • Stated that for the five-foot drop to be a safety issue, trespassing would have to occur onto the Easiest’ property. • Said that she was available for questions and declared that such a Variance would represent a special privilege as there is nothing unique about the Wu/Chen property and that the property is large enough to accommodate legal fencing. Commissioner Garakani asked where the legal placement of the north side fence would be located. Director Tom Sullivan replied that the 20-foot setback is about the edge of the house. Mr. Lee Wieder: • Said that some existing fencing in the neighborhood is grandfathered. • Said that the lot configuration represents a special circumstance. Saratoga Planning Commission Minutes of June 25, 2003 Page 16 • Said that visual impact seems to be the biggest concern of the property owner on the south side and that the way of buffering that visual impact could include additional vegetation. • Stated that they have made the offer to do so. • Said that he was glad no accident has occurred yet but does not mean it could not happen. Commissioner Garakani asked Mr. Wieder what type of mitigation he is proposing. Mr. Lee Wieder said the visual impact would be greater if the fence is moved to where it is permissible without a Variance. Suggested moving the fence but not as far as the legal setback requirement. Commissioner Garakani asked for the reason for fencing on the right side. Mr. Lee Wieder said to create a secure area. Commissioner Garakani suggested moving the fence in front of the bushes rather than behind them so that they would screen the fence for the neighbors. Mr. Lee Wieder said that it would be okay and that they are more concerned about the north side. Commissioner Nagpal asked what landscaping proposals they have for the north side. Mr. Lee Wieder replied landscaping that will drape over and soften the fence so that this fence would disappear. Commissioner Garakani said that the fence would simply become a big green wall that would still have a big impact. Reiterated his suggestion to bring the fence in front of the existing bushes. Mr. Lee Wieder said he would if he could but that the fence would appear higher because of the slope of the property. Commissioner Garakani said that if the purpose of the fence is to protect the family, why not bring it into the property and simply lower it. They only need about two feet. Mr. Lee Wieder said that they would have to bring it back pretty far to get behind the shrubbery and that it could not be installed in a straight line. Commissioner Garakani said that there could be curvature of the fence. Mr. Lee Wieder added that if the fence is too low, it is not accomplishing the safety function. Commissioner Garakani asked for the current height of the fence. Mr. Lee Wieder replied five feet. Commissioner Garakani suggested that dense bushes would solve the problem. Mr. Lee Wieder said that it would take years to grow sufficiently and that it is not realistic. Saratoga Planning Commission Minutes of June 25, 2003 Page 17 Attorney Robert Yurio said that if the vegetation is simply increased; it would still require the maintenance that could endanger the gardener who does the work. Commissioner Garakani reminded that the property line is four feet away from the retaining wall. Attorney Robert Yurio reiterated that the current location of the fence is the best placement. Acting Chair Zutshi closed the Public Hearing for Agenda Item No. 2. Commissioner Uhl: • Stated that he cannot make the necessary findings to support these Variances. • Added that to do so would be a special privilege. • Reminded that there is a process available through the HOA. • Said he does not even support the north side fencing request that staff does. Commissioner Barry: • Expressed her agreement. • Stated that there can be no expectation that a Hillside property would be similar to a suburban lot. • Said that the fencing regulations on the Hillside Zoning District require that said hillsides remain open and rural. • Advised that she is not convinced that the case for safety has been strongly made. • Said that Variances in the Hillside have not been taken lightly in the past. • Agreed that the case for Variances have not been made here, not even for the north side. Commissioner Garakani: • Stated that he thinks otherwise, especially on the north side. • Said that if he was the north side neighbor, he would have put a fence in himself to prevent any problems from a possible five-foot drop. • Agreed that safety concerns cannot be substantiated for the rest of the property. Commissioner Uhl added that fencing can still be installed but just within the rules. Commissioner Garakani said that moving the fencing could make them a more intrusive impact than the current placement. Commissioner Uhl said that the fencing needs to come down now because they are in violation. The applicant can come back in the future and make a case for any desired fencing. Commissioner Garakani said that it would be a good idea to put in fencing. Commissioner Barry pointed out that there is no Design Review proposal this evening, just a Variance request. Reminded that the Commission has been strict in applying findings for any Variance and that it is not supported here. Commissioner Garakani said that the draft resolution is okay with him. Commissioner Schallop: Saratoga Planning Commission Minutes of June 25, 2003 Page 18 • Apologized for missing the site visit. • Advised that he had received a call from Mr. Lee Wieder asking to discuss issues with him about this request. • Said that he told Mr. Wieder that he prefers not to discuss it separately from the public hearing. • Expressed agreement with the staff report. • Said he prefers not to approve the north fence Variance. • Suggested that the applicant can let Council deal with this further on appeal. Commissioner Nagpal: • Agreed that she too has difficult making the findings for anything but the north fence, which represents a potential safety issue. • Said that an appropriate remedy would be an appeal to Council or to have the applicant come back with an appropriate design to look at and allow neighbor participation. • Stated that she cannot grant these Variances. Acting Chair Zutshi disclosed that Mr. Lee Wieder had also called her. Agreed that there is no justification for any of the fences. Director Tom Sullivan suggested that the Commission take no action on Resolution #1 and amend Resolution #2 to include all fences. Commissioner Uhl reported that he too received a call from Mr. Lee Wieder. Commissioner Garakani said he also received a call from Mr. Lee Wieder. Commissioner Barry said she received a voicemail message from Mr. Lee Wieder but did not return the call. Commissioner Nagpal reported that she also received a call from Mr. Lee Wieder. Motion: Upon motion of Commissioner Barry, seconded by Commissioner Nagpal, the Planning Commission followed the Community Development Director’s recommendation to ignore draft Resolution #1 and to add the north fence to draft Resolution #2, thereby denying each of the Fence Variance requests for property located at 12161 Parker Ranch Road, by the following roll call vote: AYES: Barry, Garakani, Nagpal, Schallop, Uhl and Zutshi NOES: None ABSENT: Hunter ABSTAIN: None *** PUBLIC HEARING - ITEM NO. 3 APPLICATION #03-021 (APN 397-17-033) – JILAN, 19805 Versailles Way: Request to amend an approved project. The applicant is requesting the relocation of the swimming pool. The change of location would require the removal of two existing redwoods and two existing Monterey pines. (TOM SULLIVAN) Saratoga Planning Commission Minutes of June 25, 2003 Page 19 Director Tom Sullivan presented the staff report as follows: • Advised that the applicant is requesting an amendment to an approved project, which staff found to represent a significant enough change to warrant being returned to the Commission for review. • Said that the pool was originally to be located on the lower left hand corner of the lot and the new proposed location for the pool is where an existing redwood grove is located and within the canopy of a large oak tree. • Recommended denial of this relocation of the pool due to its impact on the redwood grove and oak tree. • Suggested that the original approval remain. Commissioner Nagpal asked if there are any trees in the area where the playground was proposed. Director Tom Sullivan pointed to page 24 of the staff report that depicts the site plan used by the Arborist. Added that some trees have already been removed. Commissioner Uhl pointed out that trees 7, 8, 9 and 14 have been removed at this point. Acting Chair Zutshi opened the Public Hearing for Agenda Item No. 3. Mr. Robert Mowat, Project Landscape Architect: • Said that it is better to ask permission rather than forgiveness. • Said that they want to discuss the removal of four redwood trees at this point and that the pool location can be dealt with separately. • Said that these are not Ordinance trees but rather were included on the survey for the pre- application. Pointed out that they are not 40 inches but rather only 11 inches. • Stated that they proposed to install four 36-inch box trees in replacement. • Advised that they do not propose a lot of paving and are staying away from the trees on the north side. • Added that they are open to increasing the number of replacement trees. Acting Chair Zutshi asked Mr. Mowat how many trees have been cut down so far. Mr. Paul Doble, Project General Contractor: • Assured that permits were received from Director Tom Sullivan for any trees removed. Acting Chair Zutshi questioned why change now. Mr. Paul Doble said that the Commission considered the project when it was transitioning to requiring landscape plans during the Design Review process. Since they did not yet have one, the project architect drew the proposed pool as part of the house plans. Commissioner Uhl asked why the pool has now been moved and why the trees must be removed. Mr. Robert Mowat said that the pool is being relocated to keep it away from trees on the far western edge that would result in debris in the pool. Additionally, the owner wants to be able to see the pool Saratoga Planning Commission Minutes of June 25, 2003 Page 20 from the house so that their family’s two children can easily be supervised. They want a logical connection to the house and also to be able to incorporate solar services for the pool. Commissioner Nagpal said that while Mr. Mowat has said that the pool has nothing to do with the tree removal requests it really does since the trees would need to be removed to relocate the pool where desired. Director Tom Sullivan said that staff considers the relocation of the pool and hardscape to represent a significant change to the project, which is why it is back before the Commission. Commissioner Garakani sought clarification that with the approved project, some trees were allowed to be removed to accommodate the pool. Director Tom Sullivan replied correct. Commissioner Barry reminded that the pool was not drawn up by a landscape architect and when a landscape architect was retained is when the suggestion was made to change the pool location. Commissioner Garakani asked when the landscape architect was hired. Mr. Paul Doble: • Said that the landscape architect was hired immediate but that the rules had just changed by Saratoga to require a landscape plan for consideration at the Design Review stage. • Said that at that time, they were not yet ready with their formal landscape plan, as this was an unexpected new requirement. Commissioner Garakani asked why the already removed trees were removed. Mr. Paul Doble said he could not remember. Mr. Robert Mowat clarified that thus far only two trees have been removed, Tree #8 and Tree #9. Tree #8 was a Monterey Pine 6-inches in diameter. Tree #9 was a Monterey Cypress 9-inches in diameter. Values of the two trees were $488 and $216 respectively. Mr. Paul Doble said that they have also trimmed the oak tree and deep fertilized the other trees. Only undersized trees have been removed. Director Tom Sullivan pointed out that 10-inch diameter or smaller oaks and 12-inch diameter or smaller for all other species trees can be removed without permits. Said he brought this issue back to the Commission because he felt these proposed changes were significant for the project. Mr. Robert Mowat said he understands that it is the circumference rather than the diameter of the tree that is measured per the City’s Ordinance. Director Tom Sullivan said it is a 32-inch circumference for oaks and 40-inch circumference for all other trees, at 24-inches above grade. Reminded that the approved project included the maintenance of the redwood grove. Saratoga Planning Commission Minutes of June 25, 2003 Page 21 Commissioner Barry said that it was considered to be a significant feature of the property. Mr. Paul Doble said that they have a letter of support signed by all but one neighbor. Added that they are willing to replace the trees removed, even at a two to one replacement ratio, but just further back onto the property. Advised that his client is out of town and could not attend this evening’s meeting. Commissioner Barry asked for the impacts on the oak tree. Mr. Paul Doble said he would seek just permission to clear the redwood trees at this time. Added that they could have grass coming up to the pool coping and assured that the area under the oak would be constructed with a pier and beam system. Commissioner Nagpal asked how old the grove was. Mr. Robert Mowat replied from five to seven years as these are fast growing trees. Added that they will be putting in a lot more trees than taking out. Commissioner Barry said that she planted six or seven redwood trees on her own property about six or seven years ago and that they are not as big as these trees are now. Commissioner Uhl asked for the size of replacement trees. Mr. Robert Mowat said that they propose four 48-inch box trees, which would be from 10 to 12 feet tall. Commissioner Garakani asked about the size of the pool. Mr. Robert Mowat said that it would be smaller than originally depicted by the architect. Commissioner Nagpal suggested replacement of the trees, like for like. Mr. Robert Mowat said that anything is possible. Commissioner Nagpal asked if the applicant would be willing. Mr. Paul Doble said that the applicant would probably prefer more trees rather than bigger trees. Said that they would have to bring in a crane to put in 60-inch box trees. They would be happier with 48- inch box trees. Suggested that the Commission approve for either and let Director Tom Sullivan make the final determination. Mr. Robert Mowat pointed out that the valuation of the current redwood tree is $3,400 and that their proposed replacement trees would be valued at $5,200. Commissioner Uhl asked Mr. Mowat how he is preserving the natural landscaping. Mr. Robert Mowat said that he is enhancing the natural landscaping. Acting Chair Zutshi pointed out that lots of stuff is currently leaning against protected trees. Saratoga Planning Commission Minutes of June 25, 2003 Page 22 Mr. Paul Doble promised that this material would be moved away from the trees the next day. Acting Chair Zutshi closed the Public Hearing for Agenda Item No. 3. Commissioner Garakani: • Stated that the size of the already removed trees was negligible and that these three redwood trees would prevent the applicant from the full enjoyment and use of his yard. • Said that provided they plant more trees, he does not see this as a problem. • Suggested the importance of coming forward with a landscaping plan at the beginning of a project. Director Tom Sullivan said it is now a policy to do so but that this application pre-dated that policy. Commissioner Schallop said his only concern is Tree #10. Commissioner Nagpal: • Said that she has struggled more. • Stated that there are beautiful trees back there but she could see why they would want that particular area for their pool. • Said that her preference would be to preserve the redwoods and put the pool in the corner. If not, she would prefer that like size trees replace like size trees and not just 36-inch box trees. • Said that she would have difficulty supporting without sufficient mitigation. • Asked if moving the redwoods would be possible. Director Tom Sullivan said that redwoods do not transplant that easily. Commissioner Garakani suggested that the applicant look into the possibility. Commissioner Barry suggested that there are two approaches to working with such a site, one of which is to take off whatever is in the center and plant around the edges. Said that these redwoods are worth preserving. Commissioner Garakani pointed out that this backyard will only be seen by this family. Commissioner Barry disagreed, saying that it is a matter of the character of the City. Commissioner Garakani pointed out that one of the redwoods is growing into the canopy of the oak tree. Commissioner Uhl: • Said that it is hard to say if this proposal is preserving the natural landscaping. • Offered that this landscape design would be a beautiful one but not a natural environment. • Said that it appears the neighbors are comfortable. • Suggested that stipulations be made that new redwoods are planted and more of them replanted than are removed. Acting Chair Zutshi: Saratoga Planning Commission Minutes of June 25, 2003 Page 23 • Stated that she likes the redwood grove. • Cautioned that replacing them with more may be a kind of balancing act. • Said she too struggles with this issue. • Stated that she does not like to see such a change to an approved design. Commissioner Nagpal said that the applicant should address whether they can realistically move this grove, as she is not sure it is possible. Acting Chair Zutshi agreed, pointing out that they are pretty close together and that the root systems are likely tangled and could be damaged during the move. Acting Chair Zutshi reopened the Public Hearing for Agenda Item No. 3. Commissioner Nagpal asked Mr. Robert Mowat if the redwood trees could possibly be moved. Mr. Robert Mowat said that there are two options, purchasing trees of equal size or to try to move these trees. Warned that the success rate from moving the trees may not be 100 percent. Commissioner Uhl asked Mr. Mowat how he strikes a balance between preserving and improving a natural landscaping. Mr. Robert Mowat replied that Saratoga is not a natural environment. This project does represent an enhancement to the existing landscaping. Commissioner Barry asked Mr. Mowat where it would be possible to place a new grove of redwoods. Mr. Robert Mowat said his client may not like his response but that the proposed play area is the best site for the new redwood grove. Mr. Paul Doble reminded that more trees are also proposed for the back property line. Commissioner Barry reiterated that the redwood grove is a unique feature of this property. Mr. Paul Doble said that the previous property owners did not have the resources to landscape the entire property and planted this redwood grove to cut off a large portion the back end of the site where nothing was done. Acting Chair Zutshi asked how this removal would occur. Mr. Paul Doble said that Davy Tree Service would do the job with all necessary permits obtained. Commissioner Uhl said he could support what they are proposing with the replacement of the removed trees with robust redwoods. Acting Chair Zutshi reclosed the Public Hearing for Agenda Item No. 3. Motion: Upon motion of Commissioner Uhl, seconded by Commissioner Garakani, the Planning Commission approved the changes to the landscaping to include the Saratoga Planning Commission Minutes of June 25, 2003 Page 24 relocation of the pool and removal of a Redwood grove on property located at 19805 Versailles Way with the following conditions added: • Everything possible must be done to protect Tree #4 (oak); • Replace Tree #7 and Tree #9 with four new Redwood trees, which will be a minimum of 48-inch box or as close to the size of the removed trees as possible, and • A natural grove of Redwood trees is to be planted in a cluster on the site by the following roll call vote: AYES: Barry, Garakani, Nagpal, Schallop, Uhl and Zutshi NOES: None ABSENT: Hunter ABSTAIN: None Commissioner Barry thanked staff for bringing this matter back before the Commission for such a significant change. Reiterated the importance of removing the items stacked below the protected trees. Motion: Upon motion of Commissioner Uhl, seconded by Commissioner Garakani, the Planning Commission approval was amended to include the added Condition of Approval that the existing trees on the site be properly protected as part of this approval, by the following roll call vote: AYES: Barry, Garakani, Nagpal, Schallop, Uhl and Zutshi NOES: None ABSENT: Hunter ABSTAIN: None Mr. Robert Mowat suggested to the Commission that the staff report and packet for this item that included just a resolution for denial gives an applicant the impression that the action of the Commission is a done deal prior to the meeting and public hearing. Suggested that Resolutions for both outcomes be drafted. *** DIRECTOR’S ITEMS There were no Director’s Items. COMMISSION ITEMS Commissioner Uhl questioned the purpose for the copies of letters provided in their packet. Director Tom Sullivan said that these copies are provided simply to keep the Commission up to date. COMMUNICATIONS There were no Communications. ADJOURNMENT TO NEXT MEETING Saratoga Planning Commission Minutes of June 25, 2003 Page 25 Upon motion of Commissioner Garakani, seconded by Commissioner Nagpal, Acting Chair Zutshi adjourned the meeting at 10:35 p.m. to the next Regular Planning Commission meeting of July 9, 2003, at 7:30 p.m. MINUTES PREPARED AND SUBMITTED BY: Corinne A. Shinn, Minutes Clerk