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HomeMy WebLinkAbout2014-09-17; Planning Commission; MinutesPlanning Commission Minutes September 17, 2014 Page 1 Minutes of: PLANNING COMMISSION Time of Meeting: 6:00 p.m. Date of Meeting: September 17, 2014 Place of Meeting: COUNCIL CHAMBERS CALL TO ORDER Chairperson Black called the meeting to order at 6:00 p.m. PLEDGE OF ALLEGIANCE Commissioner Anderson led the Pledge of Allegiance. ROLL CALL Present: Chairperson Black, Commissioners Anderson, L’Heureux, Montgomery, Segall and Siekmann Absent: Commissioner Scully STAFF PRESENT Don Neu, City Planner Chris DeCerbo, Principal Planner Ron Kemp, Assistant City Attorney Chris Garcia, Junior Planner Jason Geldert, Engineering Manager Farah Nisan, Senior Office Specialist APPROVAL OF MINUTES Chairperson Black asked if there were any corrections or revisions to the minutes of the meeting from August 20, 2014. Commissioner Anderson stated her corrections to Page 7, 4th paragraph to say Mr. Westman commented that the way the language is crafted, anything that would encroach into the 5 foot setback would be limited to a single story portion of the home and it could be enclosed. MOTION ACTION: Motion by Commissioner L’Heureux and duly seconded by Commissioner Segall to approve the minutes of the Regular Meeting of August 20, 2014 as amended. VOTE: 6-0 AYES: Chairperson Black, Commissioner Anderson, Commissioner L’Heureux, Commissioner Montgomery, Commissioner Segall and Commissioner Siekmann NOES: None ABSENT: Commissioner Scully ABSTAIN: None PUBLIC COMMENTS ON ITEMS NOT LISTED ON THE AGENDA None. PLANNING COMMISSION PUBLIC HEARING Chairperson Black asked Mr. DeCerbo to introduce the first item and opened the public hearing on Agenda Item 2. Planning Commission Minutes September 17, 2014 Page 2 2. CDP 14-11 – SMITH REMODEL – Request for approval of a Coastal Development Permit to allow for the addition of 1,535 square feet of living area to an existing single-family residence, a new 415 square foot garage, a second story deck and an at grade covered patio on a .57 acre lot located at 2421 Buena Vista Circle within the Mello II Segment of the Coastal Zone within Local Facilities Management Zone 1. The City Planner has determined that the project belongs to a class of projects that the State Secretary for Resources has found do not have a significant impact on the environment, and is therefore categorically exempt from the requirement for the preparation of environmental documents pursuant to Section 15303 (New Construction or Conversion of Small Structures) of the state CEQA guidelines. The subject property is located within the appeals jurisdiction of the California Coastal Commission. Mr. DeCerbo stated that Agenda Item 2 would normally be heard in a public hearing context; however the project appears to be minor and routine in nature with no outstanding issues and staff recommends approval. He recommended that the public hearing be opened and closed, and that the Commission proceed with a vote as a consent item. Staff would be available to respond to questions if the Commission or someone from the public wished to comment on Agenda Item 2. Chairperson Black asked if any members of the audience wished to address Agenda Item 2. Seeing none, he opened and closed public testimony. Commissioner Siekmann stated she wished to make a change to Condition No. 12 to say “Coastal Development Permit” instead of Conditional Use Permit. MOTION ACTION: Motion by Commissioner L’Heureux and duly seconded by Commissioner Segall, that the Planning Commission adopt Planning Commission Resolution No. 7071 approving a Coastal Development Permit CDP 14-11 based upon the findings and subject to the conditions contained therein. VOTE: 6-0 AYES: Chairperson Black, Commissioner Anderson, Commissioner L’Heureux, Commissioner Montgomery, Commissioner Segall and Commissioner Siekmann NOES: None ABSENT: Commissioner Scully ABSTAIN: None Chairperson Black closed the public hearing on Agenda Item 2, asked Mr. DeCerbo to introduce the next item, and opened the public hearing on Agenda Item 1. 1. CUP 13-01 – SD06369 CADENCIA – Request for approval of a Conditional Use Permit to allow for the continued operation of and revisions to an existing Wireless Communication Facility consisting of three panel antennas housed within a faux chimney on the roof of an existing single family residence and the relocation of existing equipment cabinets to a new enclosure at the rear of the property located at 7412 Cadencia Street in Local Facilities Management Zone 6. The City Planner has determined that this project is exempt from the requirements of the California Environmental Quality Act (CEQA) per Section 15301, “Existing Facilities” and Section 15303, “New Construction of Small Structures,” of the State CEQA Guidelines and will not have any adverse significant impact on the environment. Mr. DeCerbo introduced Agenda Item 1 and stated Junior Planner Chris Garcia would make the staff presentation. Assistant City Attorney, Ron Kemp, commented that the consent of the property owner in this matter was given conditionally; therefore, the application was deemed to be complete with certain conditions on their acceptance of the Conditional Use Permit. Mr. Kemp also stated that the property owner will no longer have the right to withdraw the consent and advised the property owner to go on the record and state that they consent to the item being heard by the Planning Commission with the understanding that once the hearing starts, the matter will go forward and they will be bound by the determination by the Planning Planning Commission Minutes September 17, 2014 Page 3 Commission. If they do not agree with the decision or the conditions, Mr. Kemp concluded stating that their only recourse would be an appeal to the City Council as opposed to being able to withdraw their consent after the decision has been made. Bob Kolodny, Suite 201, 11975 El Camino Real, San Diego, 92130, responded to Mr. Kemp stating that the applicant submitted a request that there would be a condition to the homeowner’s consent that the applicant would pay for the cost of relocating the equipment on the site owner’s property. Mr. Kolodny also stated that the condition has been a part of the consent for 2 years that states the applicant would be responsible for the payment of the Conditional Use Permit, including the installation of the equipment on the homeowner’s property. Mr. Kolodny stated that he would like to withdraw the conditional consent, and requested that the Planning Commission accept the consent as part of the record and add a condition to make the applicant responsible for the costs. Mr. Kemp commented that the responsibility of payment for the relocation of the facility is not within the purview of the Planning Commission. Mr. Kemp also stated that it would be a private agreement between the homeowner and the applicant. Mr. Kolodny asked why the Planning Commission had conditions approved by staff recommending that the developer is required to remove all the equipment. Mr. Kemp stated that the applicant is required to remove and relocate equipment; however it is not for the Planning Commission to decide who pays for it. Mr. Kolodny stated that the applicant was told to file for a new CUP as they would place the equipment in the back of the property with no access to that equipment except from a private street. Mr. Neu commented stating that the Planning Commission provided an opportunity for the parties to try to resolve some of the differences, and staff accepted the application with the conditional consent in January of 2013. Mr. Neu clarified that the majority of that time the applicant had been granted a continuance by the Planning Commission at the request of Mr. Kolodny and his client so that they could work to resolve matters with T-Mobile. As Mr. Kemp stated, it was an error on staff taking in the application with the conditional restrictions because the City of Carlsbad can make certain requirements or judgments, but if the city is not satisfied with them, staff can pull the application out in the middle of the works. Mr. Neu also stated that speaking on behalf of staff, we are trying to work with both parties as we are a little frustrated with being thrown under the bus that it is somehow our fault as we have been more than accommodating, the commission has been more than accommodating to the property owner. Mr. Neu stated that should the parties not be able to reach agreement on the proposal, it is possible that T-Mobile has legal rights to retain the current improvements constructed under the previous CUP. T-Mobile could submit a new CUP application to gain city approval to keep the improvements as they currently exist. Mr. Kolodny stated that staff has been great to work with and that he did not intend to throw staff under the bus, however, for the first time in 2 years, the city notified the property owner to modify the consent that has been part of the project file. Mr. Kolodny requested that he have a moment to talk to his client. Mr. Kemp advised from the city attorney’s office that if the homeowner does not give an unconditional consent, the Planning Commission will be in the role of arbitrating the dispute between the applicant and the homeowner as to who will be responsible for payment. Mr. Kemp also stated that Mr. Kolodny has the option to withdraw the consent, continue discussions with T-Mobile, and come back with the application once he feels comfortable giving an unconditional consent. Mr. Kolodny stated that they have attempted to reach an agreement with T-Mobile for 6 months and the American Tower Company, but they have not replied back. Mr. Kolodny also stated that the applicant has tried to make an agreement as they were willing to go forward without an agreement. RECESS Chairperson Black called for a 5 minute recess at 6:37 p.m. MEETING CALLED TO ORDER Chairperson Black called the meeting to order at 6:42 p.m. with all Commissioners present. Mr. Kolodny pointed out to the Commissioners that the property owner will not sign another agreement or a Notice of Restriction. Mr. Kolodny stated that his client reluctantly, in light of her choices, and her concerns, will leave it up to the decision of the Planning Commission and withdraw that conditional consent with the hope that the city will take into consideration all the facts in terms of what proper conditions to impose if they grant the CUP. Planning Commission Minutes September 17, 2014 Page 4 Mr. Kemp stated that we have received an unconditional consent, so we have permission to go forward. Commissioner Anderson stated that she would like to recuse herself due to the fact that she lives across the street from the property. Mr. Garcia gave a brief presentation and stated he would be available to answer any questions. Chairperson Black asked if there were any questions of staff. Seeing none, he asked if the applicant wished to make a presentation. Debra DePratti Gardner, 13948 Calle Bueno Ganar, Humboldt, 91935, representative for T-Mobile gave a brief presentation and stated she would be available to address any questions. Commissioner L’Heureux asked Ms. Gardner if she had any issues or concerns with any of the conditions. Ms. Gardner stated no. Commissioner Montgomery asked Mr. Kemp if there were still any dispute as to who will pay for the installation of the equipment, once the Commission grants the CUP, what happens to the approval if construction does not take place. Mr. Kemp stated that the conditions of approval require that the building permits be pulled within 24 months and acted upon. Mr. Neu stated that Condition No. 11 states that the applicant has 24 months to pull a building permit or the permit becomes null and void. Mr. Neu also added that the Commission may choose to modify the timeframe. Chairperson Black asked if there were any further questions of the applicant. Seeing none, he asked if there were any members of the audience who wished to speak on the item and opened public testimony Tonya Codd, 7412 Cadencia, property owner, stated her concerns with access hours and unidentifiable technicians showing up to her property without an appointment. Ms. Codd stated that she did not fully understand the agreement when she bought her home and, according to documentation, the technicians are to show up once every month. Presently there are 4 to 6 visits each month lasting anywhere between 2 to 5 hours. She also stated her concerns with the technicians asking inappropriate questions regarding the price of her home and invading her privacy when she and her family are inside of their home. Ms. Codd stated that T-Mobile agreed to pay for the equipment to be moved to another location in order to make the site viable. Mr. Kolodny asked if the applicant would use reasonable operating hours, not including Saturday, and other than emergencies, they do not come on the property before 9 a.m. or after 5 p.m., 5 days a week. Mr. Kolodny asked to add some additional conditions such as the developer should pay for the equipment, and their timing to complete the project immediately. Commissioner Siekmann asked if T-Mobile stated that the client pay for equipment. Mr. Kolodny stated yes, in several communications to him. Commissioner L’Heureux asked if T-Mobile would object to a condition being added that limits access hours from 9 a.m. to 5 p.m., Monday through Friday, not on weekends and holidays, except for emergencies. Ms. Gardner stated she was not able to answer that question. Chairperson Black asked if there were any further questions of the applicant. Seeing none, he asked if there were any other members of the audience who wished to speak on the item. Seeing none, Chairperson Black closed public testimony and asked staff to respond to the issues raised by the speakers. Mr. Garcia commented that Condition No. 15 states that access hours are from 7 a.m. to sunset, 8 a.m. on Saturdays, and other hours for emergencies as that language comes from the City Council Policy No. 64 performance guidelines. Commissioner L’Heureux asked if the only days of no operations were Sundays and holidays, except for emergencies. Mr. Garcia stated yes. Commissioner L’Heureux also asked if the condition can be changed to be more restrictive or if the Commission was bound by Policy No 64. Mr. Neu stated yes, the Commission has discretion to change the condition as the policy is a guideline. Commissioner Segall inquired about the equipment being installed without a permit. Mr. Neu stated that the proposal to relocate the equipment will resolve that issue as the existing equipment is being moved to a new site, and the area will be returned to its previous condition. Commissioner Segall asked for clarification on Condition No. 16. Mr. Neu commented that the site will be restored after the existing equipment is relocated, with the exception of having the site operational. Mr. Garcia stated that the site shall be repainted to match the existing structure during the relocation. Commissioner Segall also inquired Planning Commission Minutes September 17, 2014 Page 5 about the duration of a permit for non-conforming equipment. Mr. Neu stated that since the equipment was moving to a new location, a reasonable amount of time to accomplish that would be less than 2 years. Commissioner Segall asked if there was a condition to setting up an appointment with the homeowner prior to arrival. Mr. Kemp stated that it is addressed in the agreements between the property owner and the applicant. Commissioner Siekmann asked if the applicant will be in violation during the permitting process of relocating the equipment. Mr. Neu stated that in order for a permit to be effective within a 2 year timeframe, the applicant must abide by all conditions and submit for and obtain building permits. Mr. Neu also stated that if it does not happen, the approved Conditional Use Permit will then expire, and the city will have to address the issue again, whether through the consideration of a new application be filed, or through enforcement action. Commissioner L’Heureux suggested that a modification to Condition No. 11 to state a specific timeframe shorter than 24 months and to add additional language to Condition No. 16 for a definite time. Mr. Garcia stated that 6 months may be a reasonable amount of time for both conditions; however, the applicant must obtain a final landscape plan to ensure that everything is adequately screened for the new equipment enclosure. Ms. Gardner stated that 12 months would be adequate for the issuance of building permits, and suggests 3 months of completion. Commissioner Segall inquired about the equipment and when it can be removed. Ms. Gardner stated that the fiber optic junction box that was installed on the wall cannot be removed without interrupting the operation of the site. Commissioner Segall asked why the equipment was added to the site without a permit. Ms. Gardner stated it was assumed within their rights to install additional utility lines for the operation of the site. Commissioner L’Heureux inquired about landscaping that will be reinstalled once the old equipment is removed. Ms. Codd submitted a photograph of the side of her property indicating 2 new fiber optic cabinets installed that were not in the last Conditional Use Permit. Ms. Gardner stated that the conduit to the antennas on the roof must remain, as everything else will be removed. Commissioner Segall asked Ms. Codd if the applicant installed the indicated cabinets while she was at home. Ms. Codd stated yes, the installation took place in 2010. Commissioner Segall asked if there were any maintenance done to the antennas on the roof. Ms. Codd stated the maintenance is mainly done on the equipment cabinets, while antennas were accessed from Cadencia and maintained once or twice a year. Commissioner L’Heureux asked if it would be appropriate to fashion a condition notifying the property owner of access hours to antennas from a residence. Mr. Kemp stated that term agreements between the applicant and the property owner had been previously negotiated. Chairperson Black asked if there were any other members of the audience who wished to speak on the item. Seeing none, he closed public testimony and asked if there were any further questions of staff. DISSCUSSION Commissioner Segall stated that he would like to see a condition concerning access hours, hours of operation, and a timeframe of 12 months for building permit. Commissioner Montgomery stated that he would like Condition No. 11 modified to say “building permits are to be issued within 12 months from the date of project approval or it is null and void;” Condition No. 15 to be modified to say “access hours are to be from 9 a.m. to 5 p.m., Monday through Friday, excluding emergencies;” and Condition No. 16 be modified to specifically state “the existing equipment be removed, relocated, and property to be fully restored.” Commissioner Montgomery also stated that if there are disagreements between the applicant and the site owner as to who is responsible for payment, the application shall be null and void. Commissioner Siekmann concurred with Commissioner Montgomery. Commissioner L’Heureux commented stating that Condition No. 11 should say 9 months, Condition No. 15 to say access hours are from 9 a.m. to 5 p.m., Monday through Friday, except on weekends and holidays, with the exception of emergencies, and Condition No. 16 to have a specific date.