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HomeMy WebLinkAbout08-22-2007 Planning Commission Minutes MINUTES SARATOGA PLANNING COMMISSION DATE: Wednesday, August 22, 2007 PLACE: Council Chambers/Civic Theater, 13777 Fruitvale Avenue, Saratoga, CA TYPE: Regular Meeting Chair Hlava called the meeting to order at 7:00 p.m. ROLL CALL Present: Commissioners Cappello, Hlava, Kumar, Kundtz, Nagpal, Rodgers and Zhao Absent: None Staff: Director John Livingstone, Contract Planner Heather Bradley, City Arborist Kate Bear and Assistant City Attorney Jonathan Wittwer PLEDGE OF ALLEGIANCE APPROVAL OF MINUTES – Regular Meeting of August 8, 2007. Motion: Upon motion of Commissioner Rodgers, seconded by Commissioner Cappello, the Planning Commission minutes of the regular meeting of August 8, 2007, were adopted with a correction to pages 4,6,9,10,11,13,14 and 16. (6-0-0-1; Commissioner Kumar abstained) ORAL COMMUNICATION There were no oral communications. ORAL COMMUNICATION Ms. Nancy Kundtz, Resident on Heber Way: • Stressed the need for enforcement language to make ordnances easier to enforce and have more clout. • Stated that there is a lack of resources for enforcement. • Asked that the City focus time and energy to make enforcement easier. Chair Hlava asked the Commission what direction, if any, should be given to staff to make enforcement easier and to enforce fines quickly. Commissioner Rodgers said that the Commission does not have the jurisdiction to determine how enforcement will occur. Saratoga Planning Commission Minutes for August 22, 2007 Page 2 Commissioner Kundtz said if the authority does not fall with the Commission staff could be asked to follow through on this issue with Council. Director John Livingstone agreed that Council is the ultimate authority on the issue of how ordinances are to be enforced. He pointed out that there are two ordinances before this Commission on tonight’s agenda that Council has asked the Commission to evaluate. The aspect of enforcement can be considered as part of that discussion. REPORT OF POSTING AGENDA Director John Livingstone announced that, pursuant to Government Code 54954.2, the agenda for this meeting was properly posted on August 16, 2007. CONSENT CALENDAR There were no consent items. REPORT OF APPEAL RIGHTS Chair Hlava 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). *** PUBLIC HEARING - ITEM NO. 1 Application #07-342 (APN 386-10-043) McDonald’s USA, LLC, 18578 Prospect Road: The applicant is requesting Design Review approval and modification to a previously- approved Conditional Use Permit for a McDonald’s restaurant with a 24-hour operation to occupy an existing 4,090 square foot vacant commercial building previously occupied by Krispy Kreme doughnuts. Design Review approval is necessary to allow minor exterior modifications to the building. The lot size is 2.14 acres and the site is zoned CN (Commercial Neighborhood). (Heather Bradley) Contract Planner Heather Bradley presented the staff report as follows: • Reported that an additional email was received late this afternoon from Karen Mack with the City of San Jose’s Public Works Department and is being distributed this evening as a table item. • Explained that the applicant is seeking approval of a modification to a previously approved Conditional Use Permit that includes Design Review approval for minor changes to the exterior of the building and a signage request. • Described the zoning as Commercial Neighborhood and the tenant space on site is closest to the Prospect/Lawrence intersection. • Said that the colors remain unchanged but the existing drive-up window will be relocated and a second added. The interior will be completely remodeled with seating for 65. Saratoga Planning Commission Minutes for August 22, 2007 Page 3 • Said that an additional menu board would be installed outside and the applicant contacted staff regarding the possibility for additional signs including a corporate flag. • Advised that a consultant to the applicant prepared a transportation impact analysis that was subsequently peer reviewed and accepted by the City of Saratoga, City of San Jose, Roads District and the high school district. It was determined that there would be no increase in traffic. • Recommended an amendment to Condition 14 to read, “The applicant or property owner shall work with the City of San Jose to assess the need for a fair share contribution to the cost of future median improvements so deemed necessary by the City of San Jose. If deemed necessary by the City of San Jose, the applicant or property owner shall enter into a deferral agreement or other agreement satisfactory to the City of San Jose to make their fair share contribution at the time it is requested.” • Provided other proposed minor changes to the resolution. In Condition 9, the text should be added, “as dated July 9, 2007, and peer reviewed by follow up report dated July 25, 2007. Condition 11 should include the text, “subject to the Public Works Director’s approval. Condition 13, line 4, should replace the word “conditions” with “standards.” • Informed that staff finds this proposal to be Categorically Exempt under CEQA and recommends that the Planning Commission approval this application. Commissioner Nagpal asked if the proposed 6 x 5 sign is wood and, if not, had a wood sign been discussed with the applicant. Planner Heather Bradley replied no, it is plastic, and no discussion of a wood sign took place. Commissioner Nagpal asked if the flag is a new addition. Planner Heather Bradley said that the American flag is not new but the addition of the McDonald’s flag is a new element. Commissioner Cappello asked if the McDonald’s flag would fly on the same flagpole. Planner Heather Bradley replied yes. Commissioner Rodgers asked how large the two flags would be. Commissioner Nagpal asked if the Sign Ordinance covers the flying of the American flag. Planner Heather Bradley clarified that the flying of the American flag is acceptable but the flying of the McDonald’s flag is to be considered as a form of signage. Commissioner Kundtz asked if the flag would be lit from the bottom up as required. Planner Heather Bradley deferred this detail to the applicant. Chair Hlava asked if there was a master sign program for this shopping center. Planner Heather Bradley replied yes. Saratoga Planning Commission Minutes for August 22, 2007 Page 4 Chair Hlava asked staff how many signs Krispy Kreme had. Planner Heather Bradley said that Krispy Kreme had one wall sign and signs in the windows that were not counted in total sign area. Commissioner Kumar asked if the inclusion of the McDonald’s flag is incorporated into the draft resolution. Planner Heather Bradley replied that the flagpole and the American flag are included on Exhibit A. Commissioner Nagpal clarified that the McDonald’s flag is currently not depicted on that exhibit. Planner Heather Bradley said that is correct. Chair Hlava opened the public hearing for Agenda Item No. 1. Ms. Jolie Houston, Attorney for McDonald’s: • Stated that there are a few things that she wanted to clarify. • Assured that the American flag is properly lighted. • Said that the addition of the McDonald’s flag is a desired addition but not mandatory. • Said that if it is allowed, the McDonald’s flag could either be the same size as the American flag or it could be a lot smaller. They are just asking because the City’s standards can be varied during the Use Permit process. • Asked that Condition 8 be modified to include the McDonald’s flag. • Pointed out that this represents the relocation of an existing McDonald’s from a site across the street to this new site. It will include 65 inside seats and the continued use of 16 outdoor seats as originally approved for Krispy Kreme. • Stated that they are in agreement with the revisions to Condition 14 regarding fair share contribution to the median. • Said that other comments have been received from the school district and other tenants, which are no problem to the applicant. • Advised that other representatives are here tonight including Jeff Elia from Hexagon Transportation Consultants; Kate O’Reilly-Grumley, the project manager; the franchisee; and Diane Zimmerman from McDonald’s USA, LLC. • Informed that the 36 square foot plastic sign is internally illuminated. Commissioner Kundtz asked if the total of 65 seats includes both interior and exterior seating. Planner Heather Bradley said that the architect advised her of 65 seats. They may not have included the outdoor seats but the applicant can clarify that fact. Ms. Kate O’Reilly-Grumley, Construction Manager for McDonald’s, said that the 65 seats indicated by the architect are the interior seats with the assumption that the previously- approved 16 outdoor seats would continued to be allowed to be used. Saratoga Planning Commission Minutes for August 22, 2007 Page 5 Commissioner Nagpal asked how many interior seats Krispy Kreme had. Was it 65. Planner Heather Bradley said that she believed they had fewer interior seats. Commissioner Kundtz questioned the impact on parking and traffic with 65 interior and 16 exterior seats for this use. Ms. Kate O’Reilly-Grumley said that she believes the City likes the inclusion of outdoor seating. Commissioner Kundtz asked Ms. Kate O’Reilly-Grumley if she could accept a maximum number of seats allowed. Ms. Kate O’Reilly-Grumley replied yes. Mr. Jeff Elia, Hexagon Transportation Consultants, Inc., said that the traffic analysis was based upon 82 seats. Commissioner Nagpal asked if the outdoor seating would take up any of the existing parking spaces. Chair Hlava pointed out that with 16 outdoor seats and 65 indoor seats, the total is 81. She asked if the outdoor seats would be on the existing paved patio area. Ms. Kate O’Reilly-Grumley replied yes. City Attorney Jonathan Wittwer suggested revising Exhibit A to depict the outdoor seating. Commissioner Nagpal said that she would like to see a wood sign considered using the same colors and logo. Ms. Kate O’Reilly-Grumley said that their sign was modeled after what was there previously for Krispy Kreme. She said that if the Commission were open to external illumination of a wood sign, they could consider one. Commissioner Cappello asked staff if it is safe to assume that the traffic study, which was peer reviewed by City staff, used 82 seats when evaluating this site. Director John Livingstone replied yes. Commissioner Rodgers asked if 82 seats were within ordinance limits for a restaurant. Planner Heather Bradley said that while site parking does not meet standards, upon analysis it has been determined that adequate parking is available based on the criteria used. She added that the Commission is able to approve an exception to the parking standards. Saratoga Planning Commission Minutes for August 22, 2007 Page 6 Commissioner Zhao said that the outside seating area is pretty small and asked how many tables would be there. Ms. Jolie Houston said that there would be four tables with four seats at each as was used by Krispy Kreme. She assured that there is room for that number as well as a nice landscaping area. Commissioner Cappello asked if the umbrellas would include any corporate logos. Ms. Kate O’Reilly-Grumley said that the tables are a fiberglass material that is weighed down with concrete so as not to be stolen. She assured that there are no logos on the umbrellas. Commissioner Nagpal asked if there is a finding to make to support the parking exception. She also asked if this application includes Design Review too. Planner Heather Bradley said that the drive up window, new roof and trellis location are design issues. The parking exception is mentioned in the Parking/Circulation section of the report. Commissioner Nagpal asked about the resolution. City Attorney Jonathan Wittwer advised that Code allows a variation from standards and that no specific finding is required for a parking exception. Ms. Jolie Houston asked Mr. Jeff Elia to present the traffic analysis overview. Mr. Jeff Elia, Hexagon Transportation Consultants, Inc.: • Said that the original study had the assumption of a maximum of 82 seats, including outdoor. • Said that the parking demand was calculated and included a surplus of 15 spaces in the current lot. With that surplus, 38 additional seats could be allowed for a maximum of 119 before there is a parking shortage. • Assured that the worse case scenario was considered. Commissioner Cappello asked if the analysis took a look at the existing McDonald’s location and the parking demands there. Mr. Jeff Elia replied no. He added that that is a shared parking site with no true parking demand. Planner Heather Bradley said that the City’s Traffic Consultant asked for a traffic count for an hour at peak time at the existing location. Commissioner Nagpal asked what is the peak time for McDonald’s. Mr. Jeff Elia replied between 12 and 2 p.m. Saratoga Planning Commission Minutes for August 22, 2007 Page 7 Commissioner Nagpal asked if there are other restaurants serving lunch on this site. Mr. Jeff Elia said that the middle of the day is the peak time and the count was done at that time. Commissioner Nagpal asked Mr. Jeff Elia if he has seen the email from City of San Jose. Mr. Jeff Elia replied yes. Commissioner Nagpal asked about the extension of the median island and how they would work with the City on this. Mr. Jeff Elia said he couldn’t answer that. He added that the impacts are not caused by this project rather they are already there. They are perhaps adding one car to an already long que. He said that a fair share allocation is the fairest alternative. Commissioner Kumar said that Krispy Kreme had no drive-thru. Mr. Jeff Elia said that they did indeed also have a drive-thru. Chair Hlava asked if drive-thru traffic would be served faster with two windows. Mr. Jeff Elia replied yes. Commissioner Kumar said that it is not clear whether McDonald’s wants the flag sign. Ms. Kate O’Reilly-Grumley said that it was an afterthought and she does not want it to hold up what they are asking for here. It is not a dire thing they have to have but rather something that would be nice to have if possible. Commissioner Zhao questioned the use of two windows with one lane. Ms. Kate O’Reilly-Grumley said that one window is the pay window and the next is the pick up window. Ms. Jolie Houston added that there would also be two order stations before the pay and pickup windows. Mr. Chuck Soontag, Resident on Paseo Cerro: • Stated that he used to go to Krispy Kreme and found that the drive-thru was not used that much. • Pointed out that one already has to wait to get out of this parking lot. • Said that McDonald’s has more drive-thru traffic. Ms. Marti Foster, Resident on Saratoga Avenue: • Stated her tendency to frequent only businesses located in her community. • Said that she has seen no problem getting in or out of this site. Saratoga Planning Commission Minutes for August 22, 2007 Page 8 • Stated that she has no problem with the size of the American flag. Chair Hlava clarified that the American flag is not at issue but rather the corporate McDonald’ flag proposed to fly below it. Ms. Marti Foster said she has no problem with the corporate flag. Ms. Jolie Houston said that they are conditioned to paint the curb red to disallow parking along Prospect so visibility entering and leaving the site will be improved. Mr. Jeff Elia said that 82 seats was the original assumption but parking data shows a surplus of parking that could serve up to 119 seats. He added that there is a different parking dynamic for fast food versus a typical sit-down restaurant. Fast food turns over many more cars in a shorter period of time. Commissioner Zhao asked what is the restaurant parking standard for Saratoga. Planner Heather Bradley said that it is based on the total floor area requiring one parking space per 400 square feet in tenant space. Chair Hlava closed the public hearing for Agenda Item No. 1. Commissioner Cappello: • Said that he has no issue with the outdoor seating and could support language “not to exceed 81 seats.” • Said that as for the sign being made of wood, if this site were close to the Village, he would be more concerned with the illuminated plastic sign proposed. However, since Krispy Kreme had a backlit plastic sign, he has no issue with McDonald’s having one too. He said it is possible that a wood sign could look better and he is curious as to what the other Commissioners might have to say on the issue. • Added that if the McDonald’s flag flying below the American flag supports their business, he thinks that is good. Commissioner Kundtz: • Said he agrees about the flag. • Added that he feels more strongly in support of a wood sign that could offer a softer look and still incorporate the corporate colors and external gooseneck lighting. • Stated he is fine with the proposed number of seats. Commissioner Kumar: • Said that he finds outside seating to be more vibrant. • Added that he likes the idea of the flag. • Said that he loves the idea of requiring a wood sign, which is more of a Saratoga feel. Commissioner Nagpal: Saratoga Planning Commission Minutes for August 22, 2007 Page 9 • Said that she is excited that McDonald’s will retain the existing exterior. It will be a nice look for them. • Added that they are spending time and money on the interior. • Said that the parking and traffic study was a decent one. • Expressed support for a maximum of 81 seats to be split however they want to between indoor and outdoor seats. • Said that a wood sign would look nice and is her preference. It is nicer for the architectural appearance. • Stated that she is in support of the American flag. While the McDonald’s flag was not in the original request, if it is consistent with signage limitations she can support it. • Stressed that there be no logos on the umbrellas. Commissioner Zhao: • Said that either a plastic or wood sign is fine. • Said that the seating should not exceed the 82 used in the traffic study. • Stated that she can support the inclusion of the McDonald’s flag as it would be visible from Lawrence and help people find this location. • Advised that she can make the Design Review and Conditional Use Permit findings to support this application. Commissioner Rodgers: • Said that she is delighted that McDonald’s is going into this corner. • Stated that she can make the Design Review and Conditional Use Permit findings. • Agreed that her preference for the sign would be wood. She pointed out that Starbucks used a wood sign at the Village location, which looks classy, as would this one for McDonald’s. • Pointed out that the flagpole is 30-feet tall. If the McDonald’s flag were as large as the 8 x 12 American flag, half of that 30-foot flagpole would be covered. • Admitted that she is concerned about allowing an exception to parking standards. Chair Hlava: • Said that she can make the Design Review and Use Permit findings. • Stated that she would like to keep the maximum seating close to 82 but giving them flexibility on the number of tables. • Suggested that the McDonald’s flag be 2/3 the size of the American flag. • Said that requiring them to use a wood sign instead of the internally illuminated sign penalizes them and is not a good idea especially since Krispy Kreme had an illuminated sign on this site. • Added that everyone knows the McDonald’s sign and noted that there is a lot of sign pollution in this area and the sign needs to be easily seen. • Agreed that the umbrellas must match the building and not look like a circus with yellow tables and red umbrellas. • Stressed that no signs or logos be included on the umbrellas. Commissioner Nagpal said that a wood sign would result in a unique McDonald’s. Saratoga Planning Commission Minutes for August 22, 2007 Page 10 Commissioner Cappello said that all the other signs in this center are plastic and back lit. Having this one sign be wood could end up looking odd. Chair Hlava said that there appears to be consensus for a motion and asked about the proposed maximum number of seats. Commissioner Nagpal suggested 70 interior seats and 15 exterior seats. Commissioner Rodgers said that more parking would be required. Commissioner Nagpal suggested staying below 82 but letting them split as they see appropriate. Chair Hlava asked if the 2/3 size McDonald’s flag seems reasonable. Commissioner Cappello proposed leaving that detail to staff. Commissioner Hlava asked about the issue of wood sign versus plastic. Commissioner Nagpal said that if the rest of the center has lit plastic signs she is willing to have an open mind. Commissioner Kundtz stated that the flag is what would draw customers to this location. Commissioner Kumar said that this is a very contemporary designed McDonald’s and a wood sign would be very fitting. Ms. Diane Zimmerman, McDonald’s USA, LLC, said that they prefer the illuminated sign. The Commission informally discussed plastic versus a wood sign. Commissioner Nagpal said that if the applicant prefers the illuminated plastic sign she is willing to support their preference. Motion: Upon motion of Commissioner Nagpal, seconded by Commissioner Cappello, the Planning Commission granted Design Review and Use Permit Approvals (Application #07-342) for a McDonald’s restaurant with 24-hour operation on property located at 18578 Prospect Road, with the following amendments: • Seats not to exceed 82; • No logos on any outdoor furniture and/or umbrellas; • Outdoor furniture subject to approval by the Community Development Director; and • The size of the McDonald’s flag subject to approval by the Community Development Director; by the following roll call vote: Saratoga Planning Commission Minutes for August 22, 2007 Page 11 AYES: Cappello, Hlava, Kumar, Nagpal, Rodgers and Zhao NOES: Kundtz ABSENT: None ABSTAIN: None *** PUBLIC HEARING - ITEM NO. 2 APPLICATION #07-397 (APN 386-34-053) Makhijani, 12576 Scully Avenue: The applicant requests Design Review approval to add a second floor to the existing single-story resident. The addition includes approximately 148 square feet to the existing first floor and a new approximately 1,146 square foot second story to the existing 2,755 square foot single-story residence. The total proposed floor area would be approximately 4,049 square feet. The maximum height of the proposed building will not exceed the 26-foot height limit. The maximum impervious coverage will not exceed the allowable 55 percent of the net site area. The lot size is approximately 14,184 square feet and the site is located in the R-1-12,500 zoning district. Design Review approval is required pursuant to Saratoga Municipal Code Section 15-45.060. (Heather Bradley) Contract Planner Heather Bradley presented the staff report as follows: • Explained that the applicant is seeking Design Review approval to allow a 1,150 square foot second story addition to an existing single-story residence as well as a 150 square foot first floor addition. • Described the site as being approximately 14,000 square feet located on the corner of Scully and Largemont. • Advised that a balcony is proposed that faces Largemont and one neighbor has expressed concerns about that balcony. • Reported that the applicant is proposing additional landscape screening to alleviate that neighbor’s privacy concerns. • Stated that there are no trees being impacted by this project and that the project is Categorically Exempt under CEQA. • Advised that the Design Review findings can be made. • Distributed a materials board. Chair Hlava opened the public hearing for Agenda Item No. 2. Ms. Seema Mittel, Project Architect: • Stated that this project has been well defined in the staff report. • Advised that her clients have been very responsible in the design that they wanted and worked hard with their neighbor over the concern raised. • Advised that they are willing to plant two large trees right away. Mr. Makhijani, Applicant and Property Owner: • Reported that his family has resided in this house for six years and they love the house, neighbors and schools in this community. Saratoga Planning Commission Minutes for August 22, 2007 Page 12 • Distributed some photographs and explained that he asked his builder to climb up on the roof to take these photographs of the view from their proposed balcony. • Reminded that there are lots of mature trees in their backyard. No trees are impacted and he likes having them there. • Said that they have taken care to design their house to look like an original house and not like a remodeled house. • Informed that his wife, Nita, went to a nursery and they recommended the planting of black-stemmed pittasporum, which is an evergreen that is intended to serve as a screening hedge. It grows up to between 15 and 20 feet high and between 10 and 12 feet wide. This would do a good job screening the view of his neighbor’s windows. Mrs. Nita Makhijani explained that while her son is off to college, her daughter is now a junior in high school and she wants her to be able to enjoy living in the new house before she too goes off to college. She added that it is likely that parents will move into their home some time in the future. Commissioner Rodgers asked about adding lattice on the side between this home and the neighbor’s on the balcony. Mr. Makhijani said he would prefer not as he wants to be able to look onto his pool. He assured that the trees should grow quickly. However, if the Commission feels that the temporary use of lattice is necessary, he would work with this neighbor. Commissioner Kundtz complimented the Makhijani’s on their sensitivity to their neighbor’s privacy concerns. He added that this privacy goes both ways. Commissioner Zhao asked how long it would take the screening to reach 15 to 20 feet in height. Mr. Makhijani said that they grow about two feet per year. He added that a couple of feet above the fence is all that is needed to adequately screen this area. Chair Hlava closed the public hearing for Agenda Item No. 2. Commissioner Kumar said that he liked the PhotoShop rendition. He said that he is in support of the Design Review findings. Commissioner Cappello: • Agreed and said he too can make the findings. • Added that the view and privacy concerns have clearly been addressed and that he has the sense that the neighbor is more comfortable. • Said he would support this project. Commissioner Nagpal suggested that the screening landscaping be planted as soon as possible. Saratoga Planning Commission Minutes for August 22, 2007 Page 13 Planner Heather Bradley reported that the applicant wants to retain and reuse their existing garage door. It is aluminum painted to match and is depicted on plan sheet A5-1. Mr. Makhijani explained that the first thing he did when he moved in was to put in a garage door so it is still relatively new. It is the same type of door used by other homes in this neighborhood. He added that a wood door is more unusual in this neighborhood. Commissioner Cappello said that he supports a requirement to include a carriage style door. Chair Hlava said that this owner has a less than six-year-old door and she hates to have him replace it. Commissioner Nagpal said she couldn’t specifically recall their existing garage door. Mr. Makhijani pointed out that they are not replacing the entire house here. The garage itself is not being touched. He added that 18 of 20 homes in his neighborhood have the same door. He added that he wants to save the unnecessary expense of replacing this door and would appreciate it if they could keep what they have. Commissioner Cappello suggested leaving this issue to the discretion of the Community Development Director. Commissioner Rodgers said that the Director could look at other garage doors in the area to see what is consistent. She agreed that this is a remodel and not a new house. Commissioner Nagpal asked staff for any comment on this issue. Director John Livingstone said that his recommendation is to upgrade the door, as this would be a brand new house. Commissioner Cappello said that a carriage door is a beautiful door and is typically asked for. Commissioner Kundtz asked the project architect for her opinion. Ms. Seema Mittel said that with a remodel of this scale she usually loves to see a new garage door but she is also sensitive to the client’s budget and there are others in the neighborhood just like this. She said while a new door would be nice, the current door does match and it saves $6,000. Chair Hlava said that she used to live in this neighborhood. It is not a fancy neighborhood. She said that it is not fair to replace an almost new garage door. It doesn’t seem right. She asked for additional comments on this requirement. Commissioner Nagpal said that it is what the Director is suggesting. She said while she is sensitive to cost, this new door would also add value. Saratoga Planning Commission Minutes for August 22, 2007 Page 14 Commissioner Rodgers said that this is a lovely area of Saratoga. It is a quality neighborhood and would be an upgrade. Motion: Upon motion of Commissioner Cappello, seconded by Commissioner Rodgers, the Planning Commission granted Design Review approval to allow a first and second story addition to an existing single-story residence on property located at 12576 Scully Avenue, with the requirement to change to a carriage style garage door as approved by the Community Development Director as well as the planting of two screening shrubs as soon as possible, by the following roll call vote: AYES: Cappello, Kumar, Nagpal, Rodgers and Zhao NOES: Hlava and Kundtz ABSENT: None ABSTAIN: None Chair Hlava explained that she voted no because she did not feel the requirement to change the garage door was fair. Commissioner Kundtz agreed that it is unnecessary to change the existing garage door. *** PUBLIC HEARING - ITEM NO. 3 APPLICATION #APT07-0001 (APN 386-11-035) WU, 12571 Paseo Cerro: The applicant is appealing the denial of a tree removal permit application (HTRP07-200) and conditions of Administrative Design Review approval (#07-255) that require he retain a coast redwood tree in the front yard of the property. Pursuant to Saratoga Municipal Code Section 15-90.010, applicants can appeal the denial of a tree removal permit and conditions of Administrative Design Review approval to the Planning Commission. (Kate Bear) City Arborist Kate Bear presented the staff report as follows: • Advised that the appellant handed her two letters this evening for the Commission. • Reported that the appellant is in the process of building a new home on his property and the original home has been demolished. • Explained that the appellant wants to remove a redwood tree that he feels is too large and a danger to his home. It is also lined up directly with the front door and he feels that it is not possible to develop around this tree. • Informed that staff was not able to make the findings to allow this tree removal as the criteria was not met. The redwood tree is not in eminent danger of falling. It is not interfering with utilities. It is in fair health and does not appear diseased. It does not threaten damage to the house. • Stated that the appellant dug a trench near the house and took out two-inch roots. • Said that the lot is flat so erosion is not a concern. • Pointed out that this redwood is one of only two trees on this property, the other being an orange tree. Saratoga Planning Commission Minutes for August 22, 2007 Page 15 • Said that removal of this tree would create a significant loss with respect to shade and landscaping on the property. The tree is in fair health and the property can handle the addition of a number of trees. • Said that during the design stage of the project, the house could have been designed with the front door offset from the redwood tree or in another location. In fact, the previous house did have the front door in another location that was not directly opposite the redwood tree. • Added that a landscape could have been designed around the redwood tree using it as a focal point. The landscape plan submitted showed one small tree to replace the redwood that he wanted to remove. • Reiterated that removal of this tree is not required, as alternatives do exist. • Said that staff recommends that the Planning Commission adopt the resolution denying the removal of the redwood tree and implementing the recommendations from his arborist’s report. • Proposed two minor changes to the draft resolution. One is to delete the second line of the description reading, “and denying modifications to approved plans.” The appellant never requested modification of the conditions of approval. The second change, at the end of the resolution add the following text to the final NOW THEREFORE sentence to read, “The redwood tree shall be retained and the appeal of the tree removal permit shall be denied.” Commissioner Cappello asked whether the excavation of the trench and cutting of roots was done in the context of determining whether the tree’s roots were causing damage to the foundation and/or whether the cuts to the roots is jeopardizing the health of the tree going forward. City Arborist Kate Bear said that the appellant told her that he felt the tree was threatening his foundation. She added that she told him that she needed more information and he should have a structural engineer or somebody look under the house at the foundation. Instead he dug the trench and as a part of that cut the roots that were headed toward the house. Commissioner Cappello asked if those removed roots would not have become a threat to the foundation of the new house going forward. City Arborist Kate Bear replied that she is not finding a problem at this time. However, she added that she would not say that in the future there would not be a problem. Commissioner Cappello asked if she believes a problem is unlikely. City Arborist Kate Bear said that she won’t say it is unlikely because roots will grow from the end of the cut root and it might be years and years and years before there is any issue. Redwood trees can cause problems to foundations but small roots don’t cause problems. Commissioner Cappello asked what about two-inch roots. City Arborist Kate Bear said that they could become six-inch roots in time. Saratoga Planning Commission Minutes for August 22, 2007 Page 16 Commissioner Cappello asked City Arborist Kate Bear if the health of the tree is jeopardized and becomes an issue in her opinion. City Arborist Kate Bear said that the roots cut were approximately 15 feet from the trunk so she was not that concerned. She was a little surprised but not overly concerned because the trench was filled in right away. Commissioner Nagpal said she has questions about the possibility of improving the condition of the tree. She said that it doesn’t appear to be the best looking tree and appears to have suffered some stress. She asked if implementing the recommendations in the arborist’s report would help improve the condition of this tree. City Arborist Kate Bear said that she had asked the appellant to implement the recommendations of his arborist and evaluate the tree one year down the line. If nothing had improved, then reconsideration of the situation could occur. She said that she did not believe he had implemented the recommendations but is not sure that he has not. Chair Hlava: • Pointed out that in his arborist’s report, she speculates that this is a big tree that grew quickly due to access to ground water and that ground water supply seems to be going away. She asked City Arborist Kate Bear if she agrees with that assessment. City Arborist Kate Bear said that it is a very large redwood but that she hesitates to speculate about the groundwater situation. She agreed that redwood trees need a lot of water and you can see 40 to 50 year old redwood trees that are not as large as this one is. Chair Hlava: • Said that while the Commission was on its site visit, the tree looked like a nice, healthy tree when up close. However, when they looked back at it as they were driving away, it did not look so good. It looks sparse with branches falling off. • She asked if a 25 of 100 ranking represents a tree in fair condition. City Arborist Kate Bear said that she identified it as being in fair health while Debbie Ellis, the appellant’s arborist, said it was in poor health. She added that she agrees that the tree is not in good health. Commissioner Rodgers recounted that when they were driving away, they turned around and looked at it. Commissioner Nagpal said that obviously it didn’t look great but this has been a construction site. She said that from her perspective, the question is what are the chances of success if the recommendations are followed. She asked City Arborist Kate Bear to verify that her recommendation is to implement the suggested conditions and evaluate the tree after one year. City Arborist Kate Bear said that is correct. She said that she did not think that anyone should have to wait five years to see if this tree turns around. Saratoga Planning Commission Minutes for August 22, 2007 Page 17 Commissioner Nagpal said that the conditions likely need to be implemented right away. City Arborist Kate Bear said that at the very least the tree needs to be watered. Commissioner Rodgers asked City Arborist Kate Bear if she knows if the water table in Saratoga is increasing or decreasing and whether that makes a difference in the life of a tree if the water table fluctuates over 10 years. City Arborist Kate Bear said that she is not familiar with the water table in Saratoga. She said that if trees can tap into a relatively high groundwater source, that’s an asset for them. She added that redwoods like a lot of water and would take advantage of that if that were the case. Commissioner Nagpal said that this is about a 40-year-old tree. City Arborist Kate Bear said that 90 percent of the roots for most trees are located in the top two to three feet of soil. She added that it doesn’t mean that they won’t tap into a water source down 15 feet. It’s a possibility. Commissioner Rodgers said that there is evidence that it has been trimmed in the past. She asked if the needles on the interior of a branch ever re-grow and how does this affect the health of the tree. City Arborist Kate Bear said that it definitely affects the health of the tree. She said that the tree does have the appearance of having been trimmed a little excessively on the interior. She added that she has not noticed that the tree is sending off any new growth. Commissioner Rodgers reported that she heard that in the past someone anchored the tree to a neighbor’s tree during a storm as it was swaying so much. Chair Hlava opened the public hearing for Agenda Item No. 3. Mr. Charlie Wu, Appellant and Property Owner: • Explained that he bought this property in 2000 and this tree was there. • Said that the tree has always been like it is. There has been no change. • Said that when the house was originally built, the door was in the front and was later moved to the side. • Reported that people always comment to him, “you have a big, ugly tree!” • Said that about five years ago his neighbor asked him, “When are you going to take down that tree?” • Said that it was at the beginning of this year that they decided to rebuild their house. • Added that even if they had remodeled instead of rebuilding, they would have relocated the front door to the front. • Informed that they applied for a tree removal permit and were denied. • Said that when his expert arborist, Ms. Debbie Ellis, saw the tree her first comment was that there was something wrong with the tree. It is in poor health. • Stated that over the years he has asked how to make this tree healthier and no one know. Saratoga Planning Commission Minutes for August 22, 2007 Page 18 • Reiterated that the key point is that this tree is in poor health. • Pointed out that even City Arborist Kate Bear gave a rating of 25 out of a possible 100. • Said that this is a big and ugly tree that is not healthy. It is also a hazard due to its size and proximity to the house. It is just 12 to 15 feet from the front door. It is huge and it is close. This tree is five times the height of the house. • Said that he has a letter from his neighbor, John, who lived in the neighborhood since the 1960’s and even before this tree was planted. • Reported that on windy days they can hear small branches falling on their roof. One branch almost landed on their neighbor’s car. • Advised that he spoke with City Arborist Kate Bear regarding the trench and the tree two- inch roots that he cut. He added that you could see roots 30 feet into the foundation. • Added that they have a letter from a structural engineer that states in their opinion any root growing underneath a house would eventually impact the structural integrity of the foundation. It may not happen now but it could 20 to 30 years down the road. • Reminded that no one from the neighborhood likes this tree. It blocks visibility to the house. It doesn’t match the house or the neighborhood. It is the tallest tree in this neighborhood. • Added that he proposes to replace it with three to five new and healthy trees to match the new house and the neighborhood. • Said that one cost is the personal liability as his neighbors are worried about potential damage to their property. • Suggested that the health and condition of this tree is not likely to improve. • Advised that it is easier to remove this tree now, before the construction of the new house. • Reminded that he has 15 signatures of support from the neighborhood and three of his neighbors are here tonight. Chair Hlava asked if there are questions for Mr. Charlie Wu. Commissioner Cappello asked how far away the neighbor who wrote the letter is located. Mr. Charlie Wu said right next to his house. Commissioner Kundtz asked Mr. Charlie Wu if he has an estimate of the cost to take this tree down. Mr. Charlie Wu replied no. Commissioner Kundtz said he imagined it would cost a lot. Mr. Charlie Wu said that he would do what it takes. Commissioner Nagpal asked Mr. Charlie Wu if his arborist is here tonight. Mr. Charlie Wu replied yes. Saratoga Planning Commission Minutes for August 22, 2007 Page 19 Commissioner Nagpal said that the Commission must look at nine criteria, including removal for physical or threatened damage. She asked if there is any damage yet. Mr. Charlie Wu replied not anything significant that he can recall although there is threatened damage with falling branches. Commissioner Nagpal asked Mr. Charlie Wu when he bought the property. Mr. Charlie Wu said that he bought the home “as is.” He added that he had no plans to rebuild the house at that time. He said that the original owner agrees that the tree is too big for the lot it is on. It was only six-feet tall when it was planted. Commissioner Nagpal asked about positioning the new home away from the tree and pointed out that City Arborist Kate Bear is recommending that the tree be looked at again one year from now. Mr. Charlie Wu said that it is very unlikely that the condition of the tree would improve. It would be even more costly to take this tree down when the new home is in place. Mrs. Wu assured that the tree is watered all year round with irrigation. She added that no matter where the door is placed, this tree is in the way. Mr. Charlie Wu agreed that they have watered this tree. Chair Hlava asked Mr. Charlie Wu to verify his understanding that it would be easier to cut this tree now rather than later. Mr. Charlie Wu said that is correct. Commissioner Rodgers asked Mr. Charlie Wu, why not move the door to one side or the other or move the house back. Mr. Charlie Wu said that it would look awkward if the house is 15 feet deeper on their lot than are the homes of his neighbors. He added it is his understanding that this goes against the recommendations of the residential design guidelines. Commissioner Rodgers pointed out that Mr. Charlie Wu has made the decision to locate the house where it is. Chair Hlava asked staff to comment on the issue of whether a house should be located the same distance from the front property line as the surrounding homes. Director John Livingstone disagreed and said that varying front setbacks somewhat is desirable. Chair Hlava asked about pushing the house back further on this lot. Saratoga Planning Commission Minutes for August 22, 2007 Page 20 Director John Livingstone said that it looks like this house is maximized on this lot. Chair Hlava said if it were smaller it could be moved further back. Commissioner Rodgers added that a second story is possible. Director John Livingstone said that since the original house was demolished, there is a clean slate here and the options are endless. Commissioner Kumar said that there is some confusion as to whether the roots are encroaching on this house in a way that could lead to an unsafe foundation in the future. Mr. Charlie Wu said that he found three larger roots that eventually would impact his foundation. Commissioner Cappello asked about the landscape plan submitted that retained this redwood. Mr. Charlie Wu said that it is just a simple schematic. His original submittal showed the removal of the redwood tree but he had to retain it on the plan in order to proceed with the process for the house approval. Commissioner Cappello asked Mr. Charlie Wu if he would move forward with his landscaping immediately were this tree be allowed to be removed. Mr. Charlie Wu assured that he would be willing to install landscaping that is acceptable to the City and his neighbors. He added that this is a part of the requirements prior to occupancy. Mr. Chuck Soontag, Resident on Paseo Cerro: • Reported that he lives right across the street. • Assured that he loves trees but it is time, even past time, to remove this tree. • Said that it should be taken out due to its health problems of which there has been no change over the last three years. • Said that he once heard the noise from inside his house when a big branch fell from this tree. • Opined that this is a “weird looking tree” that does not provide much shade. • Said that the site needs more amiable street trees. They don’t want a 100-foot-high tree by itself that is only ranked 25 out of a possible 100. • Advised that his wife is afraid if it falls it would fall onto their house. • Recounted that a fallen tree killed a friend after landing on his car. • Stated that this tree is past its prime and it is time to put some good trees in there. Ms. Dorothy Bookman, Resident on Paseo Cerro: • Said that she is the immediate next-door neighbor with two large maple trees on her property. • Agreed that this tree does not provide shade and represents a constant worry to her. • Said that she wants to support the Wu’s. Saratoga Planning Commission Minutes for August 22, 2007 Page 21 • Reported that she has resided here 40 years and was there when this tree was planted. • Recounted that 10 years ago, the tree was swaying badly and the neighbor at the time asked if he could anchor this tree to their tree. • Assured that the previous neighbors took care of this tree as have the Wu’s. • Asked the Commission to please allow the removal of this tree so the neighbors can all feel better. Ms. Marti Foster, Resident on Saratoga Avenue: • Stated that the redwood is a deep-rooted tree. • Reported that she has an even larger one in her yard. • Said that she does not see that this tree is being taken care of. • Added that these owners have designed a house that encroaches on this tree. • Suggested that if one does not like trees, one should not move onto a property with trees. • Said that cutting roots is not the way to check root systems. • Recounted that California has the oldest living redwoods. • Stated that this tree should not be cut because they don’t like it. It needs to be taken care of. Commissioner Nagpal asked Ms. Marti Foster for the location of her house in relation to this one. Ms. Marti Foster said that she is located kitty corner from this house. Ms. Debbie Ellis, Arborist for the Wu’s: • Explained that she has been in business for 24 years and is a resident of Saratoga. Commissioner Nagpal pointed out to Ms. Debbie Ellis that nine findings must be evaluated. She asked about the condition of this tree and advised that City Arborist Kate Bear is recommending the implementation of the conditions Ms. Ellis has developed and have this tree evaluated again in a year. Ms. Debbie Ellis said that this tree is in very poor condition and it is reasonable to allow its removal because it is diseased and dying. She added that it is not worth saving in this location. Commissioner Nagpal asked if the conditions recommended are followed, could this tree survive. Ms. Debbie Ellis said there is a very low possibility of survival and she said that in her report. Commissioner Zhao asked Ms. Debbie Ellis to outline her credentials. Ms. Debbie Ellis: • Advised that she has a four-year degree in Horticulture; a Master’s; is a California agricultural advisor and a certified horticulturalist. Saratoga Planning Commission Minutes for August 22, 2007 Page 22 Ms. Donna Dittrich, resident of Verde Moore Court, asked the City Attorney who assumes liability in the event that this tree were to fall. City Attorney Jonathan Wittwer said that liability is the responsibility of the owner of the tree. There is immunity offered to cities for their Planning decisions. Ms. Donna Dittrich questioned why the City would not be liable if they will not give permission to remove this tree. Commissioner Rodgers asked if a score of 25 for a tree means that it is 25 percent safe. City Arborist Kate Bear said it means it is 25 percent healthy. Commissioner Nagpal asked if it means it is in fair condition. City Arborist Kate Bear replied yes. Mr. Charlie Wu: • Recounted that when he was in school a score of 25 percent was to fail. • Said that he had consulted an attorney on this issue of this tree who advised him that even if the City rejects his tree removal request they are still not responsible for his tree legally. • Reminded that he had an arborist look at this tree that says that it is not healthy. • Questioned why he should have to retain liability in the event this tree causes damages since he believes that smaller and healthier trees would be better for his house and his neighborhood. • Added that new trees would grow and blend into the neighborhood. Chair Hlava closed the public hearing for Agenda Item No. 3. Commissioner Rodgers: • Said that on the issue of safety, a ranking of 25 does not mean the tree is only 25 percent safe or has a 75 percent chance of falling. It represents fair condition according to the City Arborist. • Stated that the tree needs to be cared for. • Reminded that the tree canopy has value for the community. • Pointed out that the owners knew this tree was there and could have designed the new house around the tree. • Advised that the City has a strong tree policy. • Assured that she would not ask anyone to retain a tree that is not safe and that she trusts the City Arborist’s expertise. • Added that she does not consider this tree to be ugly and would vote to retain it, as there are no grounds to remove it under the ordinance. Commissioner Zhao said that while she respects City Arborist Kate Bear she does not agree with her recommendation. She said that the threat of damage is possible. She asked if all nine findings must be made or is one enough. Saratoga Planning Commission Minutes for August 22, 2007 Page 23 City Attorney Jonathan Wittwer said that just one will do but all nine should be considered. Commissioner Zhao said that she finds that per Condition 8, there is a threat to public health and safety and a potential hazard with this tree. She said that she could support removal. Commissioner Nagpal: • Said that this is a difficult decision. • Reported that she was involved in putting the Tree Ordinance together. • Said that the City tries to accommodate trees, especially mature trees, as they are difficult to replace. • Stated her agreement with City Arborist Kate Bear and said that there is no evidence compelling enough to change her view. • Reminded that City Arborist Kate Bear has not said no outright but rather requires further evaluation of the tree in one year. • Stated her support for denial and said it is best to give this tree more care and evaluate its health again in one year. Chair Hlava: • Said that her inclination was to wait a year and see. • Added that she prefers to defer to City Arborist Kate Bear and is normally against tree removals. • Pointed out that tonight there are several in the neighborhood who support this removal. People who have been there a long time are saying this tree is dangerous. Fifteen of them signed a petition. • Said that the Commission must give fair and serious consideration to this request. • Advised that she does not always vote with neighbors but in this case the tree is not doing well and meets the definition of being diseased. • Added that the whole front yard is not available for any other landscaping due to the extreme size of this tree. • Said that there can’t be any other trees due to the size of this one. • Stated that there is no big advantage to wait another year when there is so much evidence from neighbors over a long period of time. • Said that the diseased tree results in a public safety issue. • Advised that she can make findings to support the appellant’s request to removal this tree. Commissioner Kundtz: • Stated that he is sure City Arborist Kate Bear knows how much she is respected as is Ms. Debbie Ellis. • Said that safety is the biggest concern. • Added that Mr. Wu makes the point that it is better to plant new and better trees now. • Described the redwood as a big old tree that sticks out and looks out of sorts. • Agreed that there is disclaimer language that protects the City of Saratoga from liability. • Said that he is sensitive to the neighborhood’s safety concern and supports the reversal of the tree removal permit denial. • Asked Mr. Wu to do a really good job with replacements. Saratoga Planning Commission Minutes for August 22, 2007 Page 24 Commissioner Cappello: • Said that he agrees with the conditions in the report but takes issue with Condition 2. However, if the house were designed different, this could be met. • Stated that good points have been made including seeing what happens in one year. • Added that if no new house were proposed, he could see giving the tree that year to see what happens. • Said that because the house is being completely rebuilt and landscaping is going in on this site, he would rather not wait one year. • Suggested that he would rather see action taken today allowing the removal of this tree and allowing the Wu project to move forward including a more pleasing landscape. • Opined that eventually, this tree would cause damage to this home either by branch or by roots. • Stated that he cannot make Finding 2, which he feels is the overwhelming condition. Commissioner Kumar said he agrees with Commissioner Cappello that action should be taken today rather than waiting a year. It is in the best interest of everyone to have this tree removed. He stated his support to reverse the denial and to allow the removal of this tree. Chair Hlava asked if the Commission has to agree on the findings. City Attorney Jonathan Wittwer: • Said that it appears the majority can agree on Finding 2 and Finding 8. • Suggested that the Commission direct staff to revise the resolution as there needs to be some conditions imposed. • Said that either the Community Development Director can determine the number of replacement trees or the Commission can decide tonight. Chair Hlava asked if all supporting the reversal agree on Findings 2 and 8. Commissioner Kumar said he supports using Findings 2, 4 and 8. Commissioner Cappello said only Finding 2 works for him. Commissioner Kundtz agreed that he could only use Finding 2 to support his position. Chair Hlava said that, if possible, using Finding 8 too is better as it gives an overall sense of what the Commission is saying. City Attorney Jonathan Wittwer said that as many as possible would be nice but using only Finding 2 is fine. Commissioner Zhao said she could use Findings 2, 4 and 8. Commissioner Cappello said Finding 2 is a strong criterion for this appeal. Saratoga Planning Commission Minutes for August 22, 2007 Page 25 Motion: Upon motion of Commissioner Cappello, seconded by Commissioner Kundtz, the Planning Commission GRANTED an appeal (#APT07-0001) of the denial of a tree removal permit (HTRP07-200) to allow the removal a coast redwood tree in the front yard, on property located at 12571 Paseo Cerro, based on Finding #2 and directed staff to work with the applicant on the number of proposed replacement trees, by the following roll call vote: AYES: Cappello, Hlava, Kumar, Kundtz and Zhao NOES: Nagpal and Rodgers ABSENT: None ABSTAIN: None *** PUBLIC HEARING - ITEM NO. 4 APPLICATION ZOA-07-0003 (City Wide) Proposed Blight Ordinance: The Planning Commission will consider a draft ordinance to set standards for the minimum level of maintenance on private property in Saratoga. The ordinance would establish standards for 1) general property maintenance (e.g., overgrown vegetation, unsecured structures or conditions of deterioration or disrepair that creates a substantial adverse impact on neighboring properties); 2) single family residential use landscaping; 3) multi-family residential use landscaping; and 4) park strips between sidewalks and City streets. The ordinance would also specify enforcement and appeals procedures. (Jana Rinaldi) Director John Livingstone presented the staff report as follows: • Explained that at it’s April meeting, Council directed staff to work with the Planning Commission on an ordinance that would require property owners to keep their properties free of blighted conditions. • Said that Code Enforcement staff does receive complaints from residents regarding blighted conditions on properties that are overgrown with weeds, deed or dying trees or poorly maintained homes. • Stated that City Code currently prohibits property owners from maintaining clear risks to public health and safety or that violate specific Codes but do not deal with blighted properties that are a risk to public health and safety. • Said that the attached ordinance would expand the definition of nuisance to include properties that the City finds to be blighted and to allow the City to respond to complaints of property conditions that create aesthetic impacts to the neighborhood. • Said that existing ordinances provide tools to address fire hazards and weed abatement through the Fire District and County Vector Control on issues of rodents, mosquitoes and other pests of that nature. However, if the situation is not far enough along to require the Fire District to abate weeds and/or if large piles of brush do not yet house rodents, there is no action available. • Said that the new ordinance would allow the City to enforce those types of issues and avoid conditions such as unsecured buildings, buildings in a state of disrepair and/or overgrown weeds or other vegetation. • Added that the ordinance would impose landscape maintenance requirements as well as requiring that property owners maintain the park strip in front of their home. Saratoga Planning Commission Minutes for August 22, 2007 Page 26 • Said that staff has also added the comments received at the Study Session from the Planning Commission as well as from the audience. City Attorney Jonathan Wittwer presented a few proposed amendments as follows: • Section 7-50.050b – add, “… if there is the potential of harboring rats, vermin, vector or other similar nuisances in the building or structure.” • Section 7-50.050e(3) replace “and” with “or.” • Section 7-50.060a – the question is whether to apply this to vacant parcels. If not, the text should be modified to replace “shall” with “may” not apply, which leaves some discretion for the City Manager. • Section 7-50.060b – it is better not to call out specifically Weed Block as the only weed barrier alternative as other permeable options such as tan bark could work too. • Section 7-50.080 – the last line should replace “shall” with “are authorized to be recovered.” • Section 7-50.090b – last phrase replace “or” to “and/or.” • Section 7-50-120 should be combined with Section 7.50.110. Chair Hlava said that text should be added that reads, “Failure to meet the landscaping requirements constitutes blight.” Commissioner Kundtz: • Asked if it is intended that Section 7-50.060 include vacant parcels. • Suggested that the answer is yes as vacant parcels can get overgrown and become safety hazards. Vacant parcels should be required to be maintained but not landscaped. • Said that proposed language regarding enforcement should be included. • Reported that San Jose sends out a letter, imposes a find. If no correction takes place, the owner if fined more. City Attorney Jonathan Wittwer said that specific language about enforcement is probably valuable when a case is taken to court. He said that per Section 7-50.030, once a property is deemed to be blighted, all other enforcement tools come into play. He said that Council would have to determine if they want to set up an Administrative fine approach. Commissioner Rodgers said that although she does not feel her property has any blight, there are conditions on her hillside property that could be considered blight under this draft ordinance. She asked if she should recuse herself on this item. City Attorney Jonathan Wittwer replied no, the ordinance applies to all Saratoga property owners so she doesn’t have to recuse herself. Chair Hlava opened the public hearing for Agenda Item No. 4. Ms. Donna Dittrich, Resident on Verde Moor Court: • Distributed some photographs. • Stated that she is very glad to see this issue being addressed. Saratoga Planning Commission Minutes for August 22, 2007 Page 27 • Reported that she attended the Study Session and was happy to be there. This has been too long in coming. • Said that she has lived for 26 years in the same house in a small cul de sac. About 20 years ago, a new owner came in at the entrance to this cul de sac. Conditions on that property have continued to deteriorate from the beginning. • Described that property as having siding boards that are peeling back, a house that is in desperate need of paint, a yard that is overgrown with weeds and black plastic hanging feet beyond where stones were piled up. • Added that a realtor in the neighborhood refers this house as looking like a crack house. • Said that this condition diminishes the values of the other homes in this neighborhood. • Stated that it is embarrassing to have visitors come to the neighborhood with this house that is an eyesore. • Said that she believes the City has the right to enforce changes with this ordinance. She added that it is unfortunate that it has come to this but owners have to have enough pride in ownership. • Thanked the Commission. Mr. E.L. Vincent, Resident on Westover Drive: • Said that he does not know who initiated this blight ordinance but commended the Commission and Council for opening the issue for discussion and the approval of an ordinance on blight. • Said that he agrees with the comments so far. • Agreed that the City has the right to require abatement of weeds but not how to do it, as there are other options available in addition to Weed Block. • Recommended that specific requirements for enforcement including penalties be spelled out in the ordinance. • Said that staff needs to be insulated from a violator and his anger. • Said that he would like to see immediate pain for violators. • Suggested that a tax lien could be one enforcement inducement, one that owners are most likely to comply with. • Said that using a Notice of Code Violation would require an owner to clean up before sale of their property, it is not much of an inducement if they have no immediate plans to sell. Mr. Doug Diemer, Resident on Wardell Road: • Said that he was not at the Study Session. • Suggested that some people may simply not be able to afford landscaping. Chair Hlava said that there are provisions in Code for exceptions for those with financial hardship. Commissioner Rodgers listed out a number of existing programs that would also qualify homeowners to be exempted from the requirements of this ordinance. Mr. Doug Diemer: • Asked how people can be expected to plant landscaping if they can’t even afford health care. Saratoga Planning Commission Minutes for August 22, 2007 Page 28 • Stated that he and his wife can barely make it on what he is paid. • Added that they are worried that they will be layered with one more problem that makes it impossible for them to live here. Chair Hlava closed the public hearing for Agenda Item No. 4. Chair Hlava said that more specific requirements and penalties need to be incorporated into the draft ordinance. She said that the issue of affordability must also be taken into account, as exempting people doesn’t catch everyone. Commissioner Rodgers aid that there is also an income level standard. Commissioner Nagpal cautioned that that amount is only $22,000 for a household with two members. Chair Hlava said that penalties and specific requirements should outline the procedure from the initial letter, time for correction, fine and discretion of the City Manager. Commissioner Kundtz questioned whether there is the time available tonight to craft specific language for a progressive penalty process. He suggested tabling the issue of enforcement to a future Study Session for a process that is both fair and enforceable. Chair Hlava asked if others agreed with that approach. Commissioner Cappello said he did. He added that specifying enforcement in the ordinance might be difficult. Chair Hlava said that the process could begin with a letter with a 60-day compliance period. If nothing is done, a $100 to $200 fine could be imposed. The next level fine could be at the discretion of the City Manager. City Attorney Jonathan Wittwer said that the administrative fine approach is used by San Jose. There are limits for a general law city to the amounts listed in Code. San Jose is a charter city. He said a first offense fine could be $100, a second offense fine could be $200 and a third offense fine be $500. However, it is not always possible to get a judge to award. Commissioner Kundtz asked if the City is empowered to assess fines. City Attorney Jonathan Wittwer suggested either holding out the enforcement portion or continuing this item to a future meeting. He said that this Commission is looking for the strongest enforcement it can impose. He suggested that staff be given some direction and come back with a report on specifics of enforcement. Chair Hlava pointed out that this item didn’t even have to come to this Commission. Council sent it to us for advice and input. We could still go ahead and send it to Council with the suggestion of including specific enforcement processes. Saratoga Planning Commission Minutes for August 22, 2007 Page 29 Commissioner Nagpal said that there are other things to be talked about too. Commissioner Rodgers reported that she lives on a hillside property with a 40 percent slope, which exempts it from this ordinance. She added that critters are a part of a hillside property. Commissioner Nagpal said that as for expectations for vacant parcels, they should not require landscaping but should require weed maintenance. Therefore she agrees with the amendment to read “developed” properties. Commissioner Cappello said he agrees but said that more than weeds can mar a vacant parcel if items are dumped there or cars stored there. Commissioner Nagpal said that some properties are not landscaped to the very edge but rather are just disked for weeds. Commissioner Rodgers agreed. Commissioner Nagpal said that those on agriculturally zoned parcels, properties with 40 percent slope and/or financial hardship are exempt. Commissioner Kundtz said that the ordinance is particularly important to cover homes located in dense neighborhoods. Commissioner Nagpal stated that what is considered blight in one neighborhood is not blight in another. Commissioner Rodgers said that the point has appropriately been made that some cannot afford expensive landscaping. They can be held to the standard of keeping their property clean with the weeds down. Commissioner Nagpal said that expectation on landscaping needs to be made very clear. Commissioner Rodgers said it appears the standard is simply no dirt yards. Chair Hlava said that it is unfair to neighbors to not have some sort of property landscaping even if it is weed block with tan bark instead of dirt. Commissioner Nagpal reiterated that the standards depend upon the neighborhood. Commissioner Zhao said that having different standards for different neighborhoods causes concern. Commissioner Kundtz pointed out that most neighborhoods have specific CC&R’s. The first thing that Code Enforcement could ask a reporting party is if their neighborhood has CC&R’s. If the answer is yes, they can be directed to work with their HOA to enforce their CC&R’s. Saratoga Planning Commission Minutes for August 22, 2007 Page 30 Chair Hlava said that it is not easy to enforce CC&R’s and some neighborhoods no longer have functioning HOA’s. Director John Livingstone said that the City Attorney has made several corrections to the draft. Under landscape requirements, the work “shall” has been edited to read, “may.” This change gives the City Manager more discretion. Commissioner Cappello said that it really comes down to the discretion of the City Manager, as they cannot write every potential type of case into the Code. Commissioner Nagpal said that financial hardship issue needs to be looked at further too. She added that there are different areas of the community with different people. There is the wildlife issue that exists in certain habitats. There is the issue of native landscaping. She said there needs to be some way to allow property owners to disk and have a clean appearance but no landscaping. Commissioner Kundtz said that the tighter and more specific the enforcement procedures the better enforcement will be. He agreed that one size does not fit all circumstances. Commissioner Nagpal agreed that ordinances are difficult to craft and they last a long time once adopted. She said she would rather look at this ordinance further, perhaps in a Study Session. Commissioner Rodgers said that Council wanted the Commission’s analysis and input. She stated the importance of building in some common sense to deal with hardship cases. Commissioner Nagpal said that the need for a blight ordinance must also be weighed against some people’s economic issues. Chair Hlava said that the Commission is not ready to make a decision tonight. This item can be continued either to a Study Session or to another Public Hearing. She suggested that the staff come back with a clean copy of the draft that reflects the changes made to this point; a staff report that deals with hardship and how landscape requirements apply throughout the City and enforcement processes. Commissioner Kundtz said that the difference between a charter versus general law city must also be made clear. Commissioner Nagpal asked if there is any urgency on Council’s part. Director John Livingstone said this ordinance has not yet been scheduled for Council. Chair Hlava said that the sooner the better. Council needs to adopt the news rack ordinance, fence ordinance and this blight ordinance in order to make time for the sign ordinance. Commissioner Rodgers said there are still things in this ordinance that worry her including the concern that one issue on a property can equal blight. Saratoga Planning Commission Minutes for August 22, 2007 Page 31 Chair Hlava said that enforcement is based on complaint and always will be. Commissioner Rodgers said that her property has exterior walls with signs of past termite infestation. She has a cracked driveway. She questioned if there would be any exception for natural disasters and/or earthquakes. She added that the misdemeanor criminal penalties seem inconsistent. Commissioner Nagpal asked if the draft ordinance could be provided to each Commissioner in Word format to allow individual editing that could be brought back to the next meeting. Director John Livingstone said that he could provide that document. Chair Hlava asked if this item would not require further noticing if it were to be continued either to a date certain Study Session or date certain Public Hearing. City Attorney Jonathan Wittwer said yes. Director John Livingstone said that it appears that a Study Session is the preferred venue. Commissioner Cappello said it depends on the level of staff comfort with the input provided this evening. If staff can edit the draft based on tonight’s comments perhaps it can be brought back directly to a Public Hearing. Commissioner Nagpal said she is okay with a Public Hearing. Commissioner Kundtz said that a Study Session might suit the Commission’s work style better. Commissioner Kumar said that there are a lot of missing links here just yet and a Study Session might be better. Commissioner Rodgers said that she still has lots of notes that have not yet been discussed so she too prefers a Study Session format. Commissioner Zhao said she could support either. Commissioner Nagpal said she would support a Study Session too. Chair Hlava asked for a specific date. Is September 11th too soon? Director John Livingstone said that there is already some architectural training scheduled for 5 p.m. on September 11th. He suggested that another option might be prior to the September 12th regular meeting. He said that a Study Session on the Fence Ordinance is set for September 26th but perhaps that could be pushed into October. Saratoga Planning Commission Minutes for August 22, 2007 Page 32 Chair Hlava asked for a preference between September 12th at 5 p.m. and September 26th at 5 p.m. Director John Livingstone said either is fine and that no additional noticing would be required if continued to a date specific. City Attorney Jonathan Wittwer said that this item might not have to go back to a Planning Commission Public Hearing after the Study Session. Motion: Upon motion of Commissioner Kundtz, seconded by Commissioner Nagpal, the Planning Commission CONTINUED consideration of a draft blight ordinance to a Study Session to be held at 5 p.m. on September 11, 2007, by the following roll call vote: AYES: Cappello, Hlava, Kumar, Kundtz, Nagpal, Rodgers and Zhao NOES: None ABSENT: None ABSTAIN: None ****** PUBLIC HEARING - ITEM NO. 5 APPLICATION ZOA-07-002 (City Wide) Proposed News Rack Ordinance: The Planning Commission will consider a draft ordinance to regulate the placement of news racks on public property in the City of Saratoga. The ordinance would establish permit requirements and procedures, news rack design standards, placement specifications, maintenance requirements and enforcement and appeals procedures. (Jana Rinaldi) Director John Livingstone presented the staff report as follows: • Explained that Council asked the Planning Commission to review a proposed news rack ordinance to require permits for the placement of news racks on City streets. • Said that often news rack placements can be a nuisance to pedestrians. • Said that in August a Study Session on this issue was held. • Advised that while news racks are protected activities under the United States Constitution, cities are allowed to regulate placements with a reasonable ordinance. • Reported that this draft has been based upon existing ordinances from other communities including Los Gatos, Los Altos and Carmel. Chair Hlava opened the public hearing for Agenda Item No. 5. Mr. Paul Hernandez, Resident on La Vista Drive: • Said that he has been affiliated with Saratoga Oaks Lodge since 1955. • Expressed his surprise that there are not more people here tonight on this item. • Said that it is very appropriate to condition placement of newspaper racks. Some are rightly considered to be blight. • Said that he very much minds having to dodge those that are in the way of pedestrians on the sidewalk. Saratoga Planning Commission Minutes for August 22, 2007 Page 33 • Pointed out that some are located so close to the curb that passengers are unable to exit vehicles parked along that portion of the curb. • Stated that lots of thought has gone into the design guidelines and would represent a big improvement over big metal boxes. • Advised that he is familiar with laws requiring the provision of space for publications. • Asked if rents are collected for placement of these racks in the public right-of-way. If not, why not since space is not free. Mr. Tomas V, circulation manager for Saratoga News, said that while space is not free speech is. Chair Hlava closed the public hearing for Agenda Item No. 5. Chair Hlava expressed concern that the design standards not be so restrictive that only one company can provide said racks. They should have to be “substantially equivalent to the other stands named.” Director John Livingstone said that they are all very close in size and shape so the ordinance description covers it fairly well. City Attorney Jonathan Wittwer said the term “substantially equivalent” equals flexibility. Commissioner Cappello said that basically these racks need to be able to fit into the enclosure. Commissioner Rodgers asked why these enclosures are 11 feet long. Director John Livingstone said that was taken from the other cities’ ordinances. Commissioner Nagpal said that she is comfortable sending this along to Council. Commissioner Zhao asked if there is an existing News Rack Appeals Officer. Director John Livingstone replied no. Commissioner Nagpal asked why not use the Planning Commission or Council to consider appeals. City Attorney Jonathan Wittwer said that it might end up being the existing hearing officer. He said that due process is required. Motion: Upon motion of Commissioner Nagpal, seconded by Commissioner Rodgers, the Planning Commission recommended approval of the proposed news rack ordinance (ZOA-07-0002) to regulate the placement of news racks on public property in the City of Saratoga, by the following roll call vote: Saratoga Planning Commission Minutes for August 22, 2007 Page 34 AYES: Cappello, Hlava, Kumar, Kundtz, Nagpal, Rodgers and Zhao NOES: None ABSENT: None ABSTAIN: None *** DIRECTOR’S ITEMS There were no Director’s Items. COMMISSION ITEMS There were no Commission Items. COMMUNICATIONS There were no Communications Items. ADJOURNMENT TO NEXT MEETING Upon motion of Commissioner Rodgers, seconded by Commissioner Nagpal, Chair Hlava adjourned the meeting at approximately 11:41 p.m. to the next Regular Planning Commission meeting of September 12, 2007, at 7:00 p.m. MINUTES PREPARED AND SUBMITTED BY: Corinne A. Shinn, Minutes Clerk