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HomeMy WebLinkAbout2015-02-18; Planning Commission; MinutesPlanning Commission Minutes February 18, 2015 Page 1 Minutes of: PLANNING COMMISSION Time of Meeting: 6:00 p.m. Date of Meeting: February 18, 2015 Place of Meeting: COUNCIL CHAMBERS CALL TO ORDER Chairperson Scully called the meeting to order at 6:00 p.m. PLEDGE OF ALLEGIANCE Commissioner Siekmann led the Pledge of Allegiance. ROLL CALL Present: Chairperson Scully, Commissioners Anderson, Black, L’Heureux, Montgomery, Segall and Siekmann Absent: None STAFF PRESENT Don Neu, City Planner Jane Mobaldi, Assistant City Attorney Bridget Desmarais, Administrative Secretary Christer Westman, Senior Planner Shannon Werneke, Associate Planner Greg Fisher, Assistant Planner Jason Geldert, Engineering Manager APPROVAL OF MINUTES Chairperson Scully asked if there were any corrections or revisions to the minutes of the meeting of February 4, 2015. MOTION ACTION: Motion by Commissioner Anderson and duly seconded by Commissioner L’Heureux to approve the minutes of the Regular Meeting of February 4, 2015. VOTE: 6-0 AYES: Chairperson Scully, Commissioner Anderson, Commissioner Black, Commissioner L’Heureux, Commissioner Montgomery, and Commissioner Segall NOES: None ABSENT: None ABSTAIN: Commissioner Siekmann PUBLIC COMMENTS ON ITEMS NOT LISTED ON THE AGENDA None. PLANNING COMMISSION PUBLIC HEARING Chairperson Scully asked Mr. Neu to introduce the first item and opened the public hearing on Agenda Item 1. Planning Commission Minutes February 18, 2015 Page 2 1. PUD 14-11 – HANOVER BEACH COLONY – Request for approval of a Planned Development Permit to delete condition 13D of Planning Commission Resolution No. 4526 regarding the regulation of patio covers, decks, and additions within the Hanover Beach Colony, a 112 detached single-family airspace condominium development located north of Ponto Drive, south of Poinsettia Lane, east of Carlsbad Boulevard, and west of the railroad tracks in Local Facilities Management Zone 22. 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 it is therefore categorically exempt from the requirement for the preparation of environmental documents pursuant to Section 15305, Minor Alteration in Land Use Limitations, of the State CEQA Guidelines. Mr. Neu stated Agenda Item 1 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 1. Chairperson Scully asked if any member of the audience wished to address Agenda Item 1. Seeing none, she opened and closed public testimony. MOTION ACTION: Motion by Commissioner Anderson and duly seconded by Commissioner L’Heureux that the Planning Commission approve Agenda Item 1. VOTE: 7-0 AYES: Chairperson Scully, Commissioner Anderson, Commissioner Black, Commissioner L’Heureux, Commissioner Montgomery, Commissioner Segall, and Commissioner Siekmann NOES: None ABSENT: None ABSTAIN: None Chairperson Scully closed the public hearing on Agenda Item 1, asked Mr. Neu to introduce the next item, and opened the public hearing on Agenda Item 2. 2. ZCA 12-01(A) – DEVELOPMENT IMPACT FEE DEFERRAL PROGRAM AMENDMENT – A request for a recommendation of approval to amend Zoning Ordinance chapters 21.85 (Inclusionary Housing) and 21.90 (Growth Management) to make the deferral of development impact fees a permanent program and other minor program refinements. Mr. Neu stated that staff is recommending that Agenda Item 2 be continued to a date certain of March 18, 2015. MOTION ACTION: Motion by Commissioner Anderson and duly seconded by Commissioner Segall that the Planning Commission continue Agenda Item 2 to a date certain of March 18, 2015. VOTE: 7-0 AYES: Chairperson Scully, Commissioner Anderson, Commissioner Black, Commissioner L’Heureux, Commissioner Montgomery, Commissioner Segall and Commissioner Siekmann NOES: None ABSENT: None ABSTAIN: None Planning Commission Minutes February 18, 2015 Page 3 Chairperson Scully closed the public hearing on Agenda Item 2, asked Mr. Neu to introduce the next item, and opened the public hearing on Agenda Item 4. 4. CDP 14-22 – SOHAEI RESIDENCES – Request for approval of a Coastal Development Permit to allow for the construction of three single-family residences (3,315 – 3,842 SF in area) located on three separate residential lots within the Mello II Segment of the Local Coastal Program generally located at 2359 Pio Pico Drive within Local Facilities Management Zone 1. The 1.27 acre project site is not within the appealable area of the California Coastal Commission. 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 it is therefore categorically exempt from the requirement for the preparation of environmental documents pursuant to Section 15303(a) of the state CEQA Guidelines. Mr. Neu introduced Agenda Item 4 and stated Assistant Planner Greg Fisher would make the staff presentation. Mr. Fisher gave a brief presentation and stated he would be available to answer any questions. Chairperson Scully acknowledged receipt of a letter from Lynda Bautista as well as an errata sheet. Chairperson Sully asked if there were any questions of staff. Commissioner L’Heureux asked how many additional driveways will be constructed. Mr. Fisher stated this project will have one driveway. There will be about 100 feet between the proposed Miles Pacific driveway and the driveway for this project. Commissioner Segall asked staff to address the issues raised in the letter from Ms. Bautista. Jason Geldert, Engineering Manager, stated he can respond to the points pertinent to the project. He stated that Ms. Bautista was worried about drainage from this project onto her property. Mr. Geldert stated that the site is designed to not drain to her property. Ms. Bautista also indicated concern that once the homes are constructed, the homeowners would change the approved drainage patterns and direct the drainage towards her property. Mr. Geldert stated it would be very difficult to change the drainage patterns on the lots, and staff will perform periodic inspections for BMPs as this project is considered a priority project. The project will also be conditioned to form an HOA and to have CC&Rs. Commissioner Segall asked about any mitigation if there are drainage issues in the future. Mr. Geldert stated that the lots are already designed to drain to approved areas and the lots will constructed as designed. Commissioner Black asked about the existing home and the common driveway. Mr. Geldert stated the existing home will not be part of the CC&Rs or the HOA. Commissioner Anderson asked if any drainage is currently effecting the existing homeowner. Mr. Geldert stated a portion of this project does currently drain to a section of the driveway. Mr. Geldert commented that when this project is constructed it will in fact divert some of that drainage away from the driveway. Commissioner Segall asked if there were any other issues in the letter that need to be addressed. Mr. Geldert stated the letter also address issues with neighbors that are not a part of the project as well as a current code enforcement case that is not pertinent to this project. Chairperson Scully asked if there were any further questions of staff. Seeing none, she asked if the applicant wished to make a presentation. Sarah Morrell, representing Shea Homes, stated she would be available to answer any questions. Chairperson Scully asked if there were any questions of the applicant. Seeing none she asked if there were any members of the audience who wished to speak on Agenda Item 4. Chairperson Scully opened public testimony on Agenda Item 4. Planning Commission Minutes February 18, 2015 Page 4 Barbara Hamilton, 2335 Pio Pico Drive, Carlsbad, stated she is curious about the strategy of designing the drainage for these properties as well as the adjacent properties because it is an old Carlsbad neighborhood with an old Carlsbad street design with no curbs and gutters. She asked if the option of more natural drainage was looked at for this project. Ms. Hamilton also asked if the existing homes can tie into the power lines for the new homes so the high power lines are not running down the driveways in the future. Chairperson Scully asked if there were any other members of the audience who wished to speak on the item. Seeing none, she asked if the applicant could address the questions raised by the previous speaker. Ms. Morrell stated that in regard to the lots for the Sohaei Residences, there is already a private drainage easement recorded against the property. She explained that the two lots on the adjacent project will treat the drainage through a natural filtration system. There is also an encroachment permit through Caltrans that allows the treated water to drain into the Caltrans facility. Ms. Morrell stated this should actually improve the drainage situation for the lots behind this project. Mike Stark, 1829 Palisades Drive, Carlsbad, representing a friend who owns a residence at the end of the private drive. He stated all three properties will be required to have sewer; however from the existing homes there is an approximate 75 yard run uphill to Pio Pico to connect to the existing sewer line. He stated that as a group the homeowners are hoping to have access to the sewer line so that pumps do not need to be used. Mr. Neu clarified that the permits before the Commission tonight are the architectural and floor plans so many of the questions raised this evening relate to subdivision improvements, and both subdivisions were previously approved. To the extent that Mr. Geldert can answer the questions for the publics’ benefit, that is great but the issues have already been resolved through the previous approvals. Mr. Geldert stated that regarding the power lines, there is not a nexus to underground the power lines along the driveway to the existing homes. Regarding the sewer lines, again there is not a nexus to connect the existing homes to the sewer system. Chairperson Scully asked if there were any other members of the audience who wished to speak on the item. Seeing none, she closed public testimony. DISCUSSION Commissioner Segall stated he can support the project. Commissioner Montgomery also stated he can support the project. Commissioner Black stated he can support the project. Commissioner Siekmann stated she can also support the project. Commissioner L’Heureux stated he can support the project. Commissioner Anderson also stated she can support the item. Chairperson Scully stated she can support the project. Planning Commission Minutes February 18, 2015 Page 5 MOTION ACTION: Motion by Commissioner Anderson and duly seconded by Commissioner Segall that the Planning Commission adopt Planning Commission Resolution No. 7085 approving Coastal Development Permit CDP 14-22 based upon the findings and subject to the conditions contained therein. VOTE: 7-0 AYES: Chairperson Scully, Commissioner Anderson, Commissioner Black, Commissioner L’Heureux, Commissioner Montgomery, Commissioner Segall, and Commissioner Siekmann NOES: None ABSENT: None ABSTAIN: None Chairperson Scully closed the public hearing on Agenda Item 4, asked Mr. Neu to introduce the next item, and opened the public hearing on Agenda Item 5. 5. CDP 14-21 – MILES PACIFIC RESIDENCES – Request for approval of a Coastal Development Permit to allow for the construction of 17 single-family residences (2,854 – 3,842 SF in area) on a 5.4 acre site generally located on the west side of Pio Pico Drive near the intersection of Pio Pico Drive and Las Flores Drive within the Mello II Segment of the Local Coastal Program and Local Facilities Management Zone 1. The project site is not within the appealable area of the California Coastal Commission. The City Planner has determined that the proposed project is within the scope of the previously adopted Mitigated Negative Declaration for Miles Pacific Subdivision – CT 12-01/PUD 12-08/CDP 12-15. Mr. Neu introduced Agenda Item 5 and stated Assistant Planner Greg Fisher would make the staff presentation. Mr. Fisher gave a brief presentation and stated he would be available to answer any questions. Chairperson Sully asked if there were any questions of staff. Commissioner Anderson inquired about chimneys on the proposed homes. Mr. Fisher stated that each floor plan has an exterior fireplace that is considered a gas appliance by the Building Code so there will not any chimneys. Mr. Fisher commented that only Plan 5 has an interior fireplace with a type of ventilation on the exterior of the roof. Chairperson Scully asked if there were any further questions of staff. Seeing none, she asked if the applicant wished to make a presentation. The applicant, Sarah Morrell, representing Shea Homes, stated no. Chairperson Scully asked if there were any members of the audience who wished to speak on Agenda Item 5. Chairperson Scully opened public testimony on Agenda Item 5. Casey Heitchew, 2420 Pio Pico Drive, Carlsbad, stated his concerns about the traffic and asked if Pio Pico will be widened or if there could be a designated entrance to the project from I-5 when the freeway is widened in the future. Mr. Heitchew asked if there will be any backfilling of dirt for this project, how many cars are anticipated per home and if the streets can handle the traffic, and if the city can underground the utilities. Chairperson Scully asked if there were any other members of the audience who wished to speak on the item. Seeing none, she asked if staff could respond to the issues raised. Mr. Fisher stated Pio Pico is designated as an alternative design street, and as such, there is a policy as to how development occurs. The citizens in that area do not want curb, gutter or sidewalks so there will not be any street improvements for either this project or the project just heard by the Commission. There will Planning Commission Minutes February 18, 2015 Page 6 only be onsite improvements. Mr. Fisher further commented that the subject of Alternative Design Streets was recently brought before the City Council and the Council decided to leave the policy as it currently is because they feel that is what the citizens want. Mr. Geldert stated the projected traffic count is 170 ADT or average daily trips. That is considered to be insignificant and as such the project did not qualify for a traffic study. Staff does not anticipate any issues regarding traffic on Pio Pico. Mr. Fisher also stated that a Neighborhood Improvement Agreement will have to be entered into for this project. If the city changes the Alternative Design Street policy in the future, the homeowners would be responsible for the construction of any street improvements. Mr. Geldert also stated that the project is required to have underground power lines, and he restated that there was not a nexus for undergrounding offsite utilities for this project. In order for that to happen, the neighborhood would have to form a district and pay into it. SDG&E does not do that and the city does not have a program. Mr. Geldert commented that the lot grades are relatively close to the existing grades and the site is balanced so there will not be any importing or exporting of dirt on the site. Commissioner Anderson commented that the project signage was difficult to find. Mr. Fisher explained that for the Miles Residences project, the Early Public Notice sign was posted to a chain link fence set back approximately 60 feet from the front property line. After a concerned neighbor called the applicant regarding kids playing on the site, the developer installed an additional construction safety fence around the perimeter of the property and just behind the pavement along Pio Pico. With the installation of the construction fence, the Early Public Notice sign was no longer visible from Pio Pico Drive. Unfortunately, the developer was told to move the sign to a more visible location but it was never relocated. Regarding the Sohaei Residences project, the Early Public Notice sign was posted onsite within the front yard area but was partially blocked by vegetation. DISCUSSION Commissioner Segall stated he can support the project. Commissioner Montgomery also stated he can support the project. Commissioner Black stated he can support the project. Commissioner Siekmann stated she can also support the project. Commissioner L’Heureux stated he can support the project. Commissioner Anderson also stated she can support the item. Chairperson Scully stated she can support the project. MOTION ACTION: Motion by Commissioner Anderson and duly seconded by Commissioner Segall that the Planning Commission adopt Planning Commission Resolution No. 7086 approving Coastal Development Permit CDP 14-21 based upon the findings and subject to the conditions contained therein. VOTE: 7-0 AYES: Chairperson Scully, Commissioner Anderson, Commissioner Black, Commissioner L’Heureux, Commissioner Montgomery, Commissioner Segall, and Commissioner Siekmann NOES: None ABSENT: None ABSTAIN: None Chairperson Scully closed the public hearing on Agenda Item 5, asked Mr. Neu to introduce the next item, and opened the public hearing on Agenda Item 3. Commissioner Siekmann recused herself from the dais due to a conflict of interest regarding the item. Planning Commission Minutes February 18, 2015 Page 7 3. MCUP 14-17 – GUNTHER’S GUN SHOOTING RANGE – APPEAL OF A CITY PLANNER DETERMINATION – Request to grant an appeal of the City Planner’s determination that an indoor shooting range is not a permitted or conditionally-permitted use in the Planned Industrial (P-M) zone nor is it substantially similar to a permitted or conditionally-permitted use in the P-M zone. Mr. Neu introduced Agenda Item 3 and stated Associate Planner Shannon Werneke would make the staff presentation. Ms. Werneke gave a brief presentation and stated she would be available to answer any questions. Chairperson Scully acknowledged receipt of numerous letters and petitions for the item and stated that those documents will become part of the official record. Chairperson Sully asked if there were any questions of staff. Commissioner Montgomery asked to explore the issue of recreational uses and how the city planner came to a determination of why the use was considered different than the other recreational uses that could not be permitted like the other uses that were described. He stated that it appears that the city planner’s determination that this use is not like other recreational uses that were specifically mentioned is because of the some of the health and safety concerns and risks associated with this use compared to others. Ms. Werneke stated that is correct. Commissioner Montgomery commented that what he is having a problem with is that that is somewhat naïve, and not necessarily considering the health risks and safety concerns of the other facilities that were mentioned. For example, it was stated air quality and lead exposure issues were the main issues for health concerns; yet the safety risks and hazards associated with go kart tracks, etc., be equally reviewed and assumed that there is something there. In fact, Commissioner Montgomery stated maybe literature is out there that there is more risk or injury in that type of facility than an indoor shooting range. He stated he is worried about associating risks with this proposed indoor shooting range and not necessarily considering the risks associated with the other facilities. Commissioner Montgomery stated he read a lot of the literature that the city planner has provided the Commission listing long term illness and exposure. It feels somewhat like a scare tactic. Commissioner Montgomery further stated that with athletic facilities and gyms, particularly the gym he regularly attends, there have been within the last year two or three instances with paramedics taking people out of the gym. Athletic facilities certainly have risks associated with the people that use them. Depending on what they do, in his opinion, there can be long term health effects due to over-exerting themselves. He commented that what he is worried about is that it appears that it is a little arbitrary to review this gun range with risks and not calling it a recreational facility and all the while assuming that any of the other facilities that have been approved in this zone do not have any risks. Ms. Mobaldi suggest that Mr. Neu address Commissioner Montgomery’s questions and issues as he is the one authorized by the municipal code to make the determination of whether or not a use is substantially similar to a use that is allowed for in the zone. She also guided the Commission to focus tonight on the city planner’s determination and whether or not his determination was arbitrary, which was a term Commissioner Montgomery used, or erroneous. Ms. Mobaldi stated the Commission is not debating necessarily the pros and cons, the Commission is not polling people to see how many people like shooting ranges or recreation ranges versus people that do not. The Commission is merely looking at whether or not the city planner’s determination was supported by evidence at the time he made the decision, which is sufficient to make it not arbitrary. The burden of proof is on the appellant so any benefit of the doubt has to be in favor of the city planner’s determination. Commissioner Montgomery stated he understands that, and commented he and the city planner have known each other for a long time. He has all the respect for Mr. Neu and asked that the audience give Mr. Neu the respect as he is a very good man. Commissioner Montgomery stated he just wanted to see if an error has occurred in evaluating the facts and if it was arbitrary. He added that maybe as more facts come out things will become clearer. Mr. Neu stated that as Ms. Werneke mentioned, the way staff goes about implementing the zoning ordinance, and in particular the Planned Industrial zone, there are multiple pages of uses that are allowed in the zone either by right or conditionally. When an applicant proposes a land use, staff’s first step is to check to see if it is in the list of permitted or conditional uses. In this case, when staff referred to the Planning Commission Minutes February 18, 2015 Page 8 ordinance, there was no entry for a shooting range or a shooting gallery or anything of that nature. As it was pointed out, the next step staff takes is that the code does provide some discretion to the city planner and to staff to look at general categories and see if there is a similar use and classify the proposed use that way. That is in part to deal with changes in technology and changes in the way we live and the businesses we have. Mr. Neu stated that the main reason the Commission saw the information in the report that dealt with things specific to a shooting ranges is when staff starting looking at some of the things involved with a shooting range and some of the comparisons to other the uses, it was not so much as did staff evaluate the safety of the various uses, it was that this use is so unique of a use that it should not be found or should be it found to be within that generalized category. Mr. Neu stated that it was his own decision that the use had enough unique characteristics that he felt that if it was the intent of the City Council, and people implementing the code before us, that it would have in fact been listed as a line item use. When looking at other cities, staff found that in some cases the use would be listed as a specific use called out in particular zones where a municipality felt it was an appropriate place for the use. Staff really struggled with not so much with the idea that people consider shooting as a form of recreation but that the code did not seem to have a structure that allowed for it. Staff recognizes that this particular type of use has certain impacts that can or cannot be mitigated depending on certain systems that might be installed in the facility. Mr. Neu stated that it was really a question in his mind that was it too much of a stretch of what that zone was intended to be for and what is on the list of uses to say that this was a use that should be in there. He further stated that as the Commission heard in the presentation, staff ultimately decided that it was not a conditionally permitted or a permitted use. Staff felt that it did not belong in that category. In terms of the other uses that have been compared to this use, some of those have been classified as athletic facilities, which is by itself a separate entry in the municipal code. Mr. Neu commented that the go kart facility, not to dredge up old history, was something that staff did not recommend for the zone, and at that particular time, the Planning Commission overturned that recommendation and supported the use. Granted that set some precedence but it was one in terms of the rationale behind it staff felt at the time was not allowed. Mr. Neu added that since decisions were made on that use, staff has broadened the purpose and intent of the zone to allow for the fact that it is often a start-up for some of these other uses before they move on to a different location. It is not the same emphasis as it had been in the past in terms of if the use provides a service to the people working in the business park. Commissioner Montgomery stated that Mr. Neu mentioned that the uniqueness of this use caused him to not see it as an allowed use. Commissioner Montgomery commented that unfortunately he is the only Commissioner that voted for Gunther’s Guns a few years ago even though that was quite raucous. He stated that, in his opinion, it is sited in an appropriate area. He feels when you live in coastal southern California, people get nervous with these types of stores although he believes much of that worry is unfounded. He stated he cannot imagine another location for a shooting range more specific in the city as next to Gunther’s Guns. It is minutes away from the city’s safety center. Commissioner Montgomery stated that with that said, he wanted to ask why this proposal was considered unique compared to the other athletic or other facilities, for example an ice skating rink. Mr. Neu stated part of that was the focus on some of the information included in the report. In some of the research that has been conducted, there are some known hazards related to lead and some of the filtration that needs to happen. Staff felt it was not a skating rink or some of the other uses that, as Commission Montgomery pointed out, can be used and have injuries occur. Mr. Neu added that staff did not look at it from that perspective but more from the perspective that there are environmental hazards that could potentially cause the use to be thought of differently than an athletic club where someone uses the pool. When staff started finding information on some of the hazards, it became clear to him that this use did not fall into that same category as a catch-all facility that most people would think did not have any of these attributes. Commissioner Montgomery asked if chlorine and acid with pool usage, especially a large pool, be considered a possible hazardous issue especially if it is not necessarily governed or managed correctly. He stated he is trying to gauge the level of risk because it appears to him that, in his opinion, there are things could be similar. Ms. Mobaldi stated once again that she wanted to focus the Commission back on the issue that the Commission is reviewing tonight. The Commission is not debating, with the city planner necessarily, concerning the pros and cons of a shooting range. The Commission is looking at whether or not there was evidence for his determination at the time that he made it. That is not to say someone could not have made a different determination. The City Council, in approving the municipal code, has given the city planner the discretion to make the decision. It is discretionary because when you are looking at a use that is not listed in the code it is always going to be a judgment call because it is not specifically called out as something Planning Commission Minutes February 18, 2015 Page 9 that is allowed. Ms. Mobaldi stated she really wanted to focus everyone back on what the Commission is here to determine tonight which is whether or not there was a basis for his decision. Other people may disagree, other people may come to a different conclusion. That does not necessarily mean that, from a legal standpoint, his decision is arbitrary and not supported by evidence. Commissioner Montgomery agreed but stated he has to go down the road of why the city planner considered this use as unique and weigh that based on feeling if that is still arbitrary or in error. Mr. Mobaldi clarified that another example that was given in addition to a pool, an ice rink and a go kart facility, was a gym. The gym is a line item in the code and specifically listed so that particular example is not relevant to the inquiry being made this evening. Commissioner Montgomery stated that it is important for him to understand exactly where the Planning Division lands, where exactly they evaluate, where they felt uniqueness was, and then he needed to decide himself if in fact there is a basis there for the city planner to make this decision or if there is an error. Ms. Mobaldi clarified that it really is not the entire department; it is the city planner as an individual that is making the determination. Commissioner Black asked if Mr. Neu based his decision primarily on the alleged hazardous condition of a shooting range and the lead in the air. Mr. Neu stated no. Mr. Neu commented that more than anything the code lists quite a number of uses so it is pretty rudimentary that if it is not in there, typically the use is not permitted. There is that next step as he previously mentioned about trying to find it within a general category. Mr. Neu added that it was his opinion that the use not being listed that it was not permitted in the zone. Commissioner Black asked Mr. Neu when he made this consideration if he looked at the idea of recreation. Mr. Neu stated yes. Commissioner Black commented that he believes everyone can look at a shooting range as a place for recreation but in Mr. Neu’s mind it was recreation along with the previously stated potential hazards to come up with the conclusion as he did. Mr. Neu stated that was what pushed it to the direction that it was different than things that have been discussed this evening already that might get lumped into that broader category. Commissioner Black asked even understanding that a lot of these things are mitigated when they are built, to follow OSHA and the rules of the state and federal laws that apply to ventilation. Mr. Neu stated yes. Chairperson Scully asked if there were any further questions of staff. Seeing none, she asked if the applicant wished to make a presentation. Mike Howes, Howes Weiler Associates, 2888 Loker Ave West, Carlsbad, representing the applicant, gave a brief presentation and stated he would be available to answer any questions. Chairperson Scully asked if there were any questions of the applicant. Commissioner Montgomery asked the applicant to describe the amenities that will be inside this proposed shooting range. Mr. Howes stated it will be a state-of-the-art facility with 17 lanes and rooms for classes. Chairperson Scully reminded the Commission to stay on point and focus on what will be voted on which is the city planner’s determination. Chairperson Scully proposed to the Commission that the time limit for speakers during public testimony be reduced to 3 minutes. The Commission voted 6-0 to allow 3 minutes per speaker. Lisa Gunther, the project applicant, gave a brief presentation on the item. Chairperson Scully opened public testimony on Agenda Item 3. The following speakers spoke in favor in the project: Matthew Snyder, 1726 Bluewater Lane, San Marcos Bryan Scott, 4025 Park Drive, Carlsbad Walter Brown, 1434 Temple Heights Drive, Carlsbad Scott Morgan, downtown San Diego Planning Commission Minutes February 18, 2015 Page 10 Pat O’Day, O’Day Consultants, 2710 Loker Ave West Suite 100, Carlsbad Jim Horn, 29378 Gillette Court, Menifee Joe Welch, 2110 Loquat Place, Oceanside Michael Sargent, 1720 Kirk Place, Carlsbad Kevin Gillotti, 6808 Urubu Street, Carlsbad Joseph Kennedy, 6736 Xana Way, Carlsbad James Craig, 1732 Blackbird Circle, Carlsbad Steve Ludwiczak, Mateo Place, Carlsbad Bill Ims, 2023 Caleta Court, Carlsbad Lillian Shine, 2023 Caleta Court, Carlsbad John Buell, 4747 Marina Drive #23, Carlsbad Bart Billings, 2704 Cazadero Drive, Carlsbad Sylvia Peters spoke regarding the noticing of the meeting and Roberts Rules of Order. RECESS Chairperson Scully called for a 5-minute recess at 8:07 p.m. MEETING CALLED TO ORDER Chairperson Scully called the meeting to order at 8:18 p.m. with all Commissioners present, and continued public testimony. The following speakers spoke in support of the item: Gina Roberts, 28847 Stonegate Drive, Valley Center Edward Dayrite, 4710 Beachwood Court, Carlsbad Dale Peterson, 7168 Sitio Corazon, Carlsbad Paul Bevilaqua Torrey Nelms, resident of Carlsbad Darcy Brandon, resident of Carlsbad Tim Geiser, resident of Escondido Robert Richardson, 614 Calle Vicente, San Clemente Ed McDoll, 765 Marcos Vista Lane, San Marcos Steve Haywood, 6399 Paseo Establo, Carlsbad Austin Keith, 3011 Cadencia Street, Carlsbad Dale Marvin, business owner at 2772 Loker Ave West, Carlsbad Cody Ackermann, 1556 Palo Marcos Avenue, San Marcos Ralph Walno, 2540 Kirkland Avenue, Escondido Jeff Gosselin, who owns a business two doors down from this proposed location at 2721 Loker Ave West, stated that while he believes in the second amendment and the ability to carry firearms, he cannot think of a worse location to put a shooting range. Because there are 17 lanes proposed, along with classrooms and a lounge, there will need to be parking for the employees, instructors as well as the customers. There are currently very long lines for a similar facility in Oceanside, and this facility would need a significant amount of parking. He believes that Ms. Gunther has about 30 parking spaces assigned to her building while he has 47 spaces. Mr. Gosselin stated that if this business is going to be crowded, with one person waiting per lane that is 34 people plus the classrooms, plus the instructors, plus the employees. He stated he is sure it will be wildly successful as it took him 4 blocks to find a parking space tonight. He commented that he has no problem with people trying to make a living and doing well, but he came to the meeting a year and a half ago when the Planning Commission did not grant Ms. Gunther a conditional use permit and he agreed not to fight it. He simply was a no vote in their association. The caveat being that he was not going to go for a shooting range. This was something he discussed with Ms. Gunther a year and a half ago. He just got a notice in the mail and realized this was happening. The original application process was one were Ms. Gunther needed to get a retail license because her online business to do custom gun stocks, modifications and no gun manufacturers would deal with her unless she had a retail license. She said she needed something small so she could conduct her family business. Unfortunately, immediately after getting her use permit, she built a beautiful 2,000+ square foot showroom. It is a lovely showroom; the problem is that he also has a business there, he has tenants, and he has millions of dollars invested in this building, Planning Commission Minutes February 18, 2015 Page 11 and he does not need to have an overflow of traffic taking up all the parking places, blocking the semi-tractor trailer that need to get in and out to make deliveries, forklifts. This is an industrial manufacturing zone, flex industrial is what it is; it is not a retail center. Retail is across the street. If this shooting range were across the street, he would have no problem with it. Unfortunately it will negatively impact him and his family and their business just two doors down. Chairperson Scully asked if there were any other members of the audience who wished to speak on the item. Seeing none, she closed public testimony and asked if the applicant wished to respond. Mr. Howes stated there was nothing he can add to show that a shooting range is a recreational use. Ms. Mobaldi addressed the comments regarding the agenda not being posted. During the recess, the clerk checked the board outside of Council Chambers, and the agenda is posted. Regarding the speaker’s comments about Roberts Rules of Order, Ms. Mobaldi stated that the Commission is not legally required to follow them but she did not hear any specific complaints regarding them. Ms. Mobaldi further clarified that part of the reason the meetings are held in Council Chambers is because there is a lot of video equipment in the back and the meetings are taped and streamed to the city’s website. She further stated that the majority of the comments made during public testimony had to do with the approval of the shooting range. Ms. Mobaldi stated again, the Commission is not considering an approval of a conditional use permit; the use is not pending before the Commission. It is not an issue of whether or not the Commission wants to approve a shooting range. The issue is whether or not the Commission believes the city planner abused his discretion. The appellant has the burden of proof, the code provides that the city planner can make the decision as to whether or not it is a use allowed in the code or if it is a substantially similar use. The city does not have a definition in the code of a recreational facility. Many people alluded to specific definitions from various sources but there is not a definition in the code. The reason the city planner has been designated as the person to make a determination on these types of issues is because the City Council deems him to be the person who is most familiar with the intent and purpose of the various zones. He is the head of the Planning Division and he views the definitions and the uses in light of the intent and purpose of the various zones. That is why it is a little different than just looking at the definition in a dictionary. In any event, that is what the Commission is looking at tonight and as someone stated, this use is not precluded as a recreational use, which is correct. However, the way the city’s code is structured, it has to be allowed or similar to an allowed use in order for the city planner to accept the application. The free market is not deciding whether this is an appropriate use, and as was stated earlier, it is not a vote of the people, and it is not a balancing test. The code provides that the burden of proof is on the appellant and any doubt has to be resolved in favor of the city planner’s determination. It is not a second amendment issue. As the Commission is aware, the gun shop was approved by the City Council so there is no question with regard to bias against guns or the use of guns. The police shooting range was not approved as a recreational facility. It was approved as a governmental facility and was part of an entire training facility that involved fire facilities and a number of other things. Commissioner Montgomery stated that as a point of clarification Ms. Mobaldi requested that if the Commission votes against the city planner, it is due to an abuse of discretion, but the ordinance states it is an error or an abuse of discretion. Ms. Mobaldi stated that was correct. Commissioner Montgomery commented that it is then one or the other not just an abuse of discretion. Commissioner Black asked for clarification regarding voting. He asked if the item would be returned to the Planning Division or to the Planning Commission if the Commission votes in the positive or agrees to the appeal about the granting of the appeal. Mr. Neu responded stating that if the Commission were to grant the appeal, the Commission would then be finding the use to be a recreational facility and the entry in the Planned Industrial zone has it listed as a minor conditional use permit; therefore it would be handled as an administrative item and staff would then either approve or deny the request. If at that time, staff made a determination that the applicant or someone else disagreed with, the Commission would see the item on appeal. Commissioner Segall inquired if the Commission is trying to determine whether or not this is a recreational use. Ms. Mobaldi stated the city planner misspoke. The Commission is trying to determine whether or not the city planner’s decision that it is not a recreational facility, in keeping with the intent and purpose of the zone, was erroneous or an abuse of discretion based upon the evidence he considered. Commissioner Segall stated that the Commission has no responsibility to determine whether they believe it is recreational. It is really what the Commission believes his decision making process was. Ms. Mobaldi stated that was Planning Commission Minutes February 18, 2015 Page 12 correct. She further clarified that in the law, there are two types of processes when reviewing items. One is called “de novo” which is where a decision-making body has the right to look at an issue “anew” and make the decision instead of the original person that made the original decision. This is not a de novo hearing. This is a hearing where the Commission is merely looking at the city planner’s determination and deciding whether it was correct. The Commission cannot replace their own judgment with the city planner’s judgment. The Commission can only make a determination as to whether or not he abused or erred in his discretion. In this case, because the burden of proof is on the appellant, and therefore any doubt is in favor of the determination that was made by the city planner, error requires an abuse of discretion. Chairperson Scully asked if the Commission votes a yes vote, it means that the appeal is being denied and that the Commission agrees with Mr. Neu’s determination. Ms. Mobaldi stated the recommendation is that the Commission deny the appeal so if a Commissioner votes in favor of the recommendation, he or she is denying the appeal and agreeing with the determination of the city planner, and vice versa. Chairperson Scully asked if there were any other responses from staff. Mr. Neu added that the Commission heard testimony regarding the use, and that of course is what the Commission is here to consider. He stated that the way the city’s zoning code is structured is what staff calls permissive in that if it lists a use, then the use is permitted. In the case where it does not list the use, that is where, the city either has something that allows some level of subjectivity or discretion, and that is what the Commission is facing tonight. Staff did not find it similar to the recreational use entry, and as was pointed out in the report to the Commission, felt it was unique and did not fall into that category. There was testimony tonight claiming there were only 6 shooting range facilities in the county so obviously there is not an abundance of them, which in his mind is further supportive of the position that it is unique. It does have unique characteristics so that many zoning codes do not provide for them. One of the speakers mentioned that the city does not have medical marijuana clinics, and a reason for that is the code does not list it as a use so therefore the city does not allow them. Mr. Neu stated that is the same principle used when staff considered the proposal. Commissioner Segall stated that he needs to understand what the term “error” means because that is what the Commission is focusing on and because the word error has connotations of the wrong decision or an intentionally wrong decision; it can mean any number of things. He asked Ms. Mobaldi to tell the Commission exactly what the word error means. Ms. Mobaldi responded quoting code section 21.54.140.B. which states “…Grounds for an appeal shall be limited to the following: that there was an error or abuse of discretion on the part of the city planner in that the decision was not supported by the facts presented to the city planner prior to the decision being appealed.” It also says “…or that there was not a fair and impartial hearing,” but she stated she does not think that is the allegation so that is not particularly relevant. Ms. Mobaldi added that because the burden of proof is on the appellant, the appellant needs to show that the city planner was mistaken, it was erroneous or he was arbitrary, he abused his discretion, he did not have any basis in fact that supported his decision. That is not to say that other people could not have made a different decision based on the evidence that was presented to the city planner. She asked Commissioner Segall if that clarified the term. Commissioner Segall stated yes. Commissioner L’Heureux commented that in the code, referring to what is allowed, it states “…allow flexibility for other select uses when found to be compatible with the P-M zone.” He asked what is meant by the word compatible as he feels it seems to be the key word because Mr. Neu has made the determination that it is unique because of perhaps health and safety concerns, etc., that that somehow makes it incompatible with surrounding land uses or other uses outside the actual facility. When reading some of the materials the Commission was presented with, it seems a lot of the concerns, which may or may not be compatible here, were really not necessarily to the people inside the facility but to people externally which is not necessarily a similar case at least in his mind to an ice skating rink or a pool or something like that. Commissioner L’Heureux stated he is just wondering, again, how the compatibility element plays into this if at all Mr. Neu stated that the way the code is referring to compatible in this case, is that it is tying it to conditional use permits. When you look at the permitted uses, he believes they are thought to be compatible with one another. When you start introducing the conditional uses, those are uses that have some unique characteristics and therefore there is a conditional use permit to allow the city to place certain restrictions on them. He stated he is not sure that is necessarily addressing whether this particular use should be found as a permitted or conditional use. It is really saying that when there are Planning Commission Minutes February 18, 2015 Page 13 conditional uses, staff needs to go through the compatibility analysis to make sure the projects are conditioned in such a way they do not negatively impact the neighboring land uses, and if they cannot be conditioned in that manner then they will not be allowed. Commissioner L’Heureux stated that if they are listed in the table it is almost like they are deemed compatible. Mr. Neu stated yes. Commissioner L’Heureux stated if they are not listed, then the question becomes can they be made compatible through the conditional use permit process. Mr. Neu stated yes or there are other uses that are listed specifically as conditional uses that staff would need to apply certain limitations or operating requirements on to make them compatible. Commissioner Segall asked Mr. Neu if it could be stated that the use could be compatible in other zones but not necessarily in the P-M zone. Mr. Neu stated that typically the way the code is structured, uses are placed in zones where they will be compatible or at least conditionally compatible. If the use is not listed there is usually some reason for it; either the compatibility issues or what the zone is there to accomplish would not be fulfilled by having those land uses. For example there might not be residential uses in the industrial zone because of the incompatibility between the living environment and manufacturing. DISCUSSION Commissioner Segall stated that based on the limited area of discretion the Planning Commission has tonight, he cannot make a finding that the city planner made an error or abused his authority in his decision making. From what he has heard and from reading the report, it sounds like the decision he made at the time he made it, it was with the information that he had at the time, and he will rule in favor of the denial based on the fact that he does not believe the city planner abused or made an error in his decision. Commissioner Montgomery stated he has struggled with this mostly to due to the fact that the Commission is being asked to rule one way or another on such a narrow point. He commented that if the Commission is afraid to take stands on things of this nature, the city planner in theory could be faced with these without a check of the system. Commissioner Montgomery commented that he feels government needs to have checks in the system and there needs to be air of fairness in going about this. This strikes him as being strong-armed a little bit. In reviewing the application and in listening to the speakers, Commissioner Montgomery believes the city planner was arbitrary in his decision, that there was an error made specifically in his risk evaluation; he believes that was arbitrary. He believes that sometimes, as individuals we have such differing backgrounds of experience that we cannot possibly apply fairness or knowledge in all aspects without the balance of the rest of the people. Commissioner Montgomery stated that he thinks with experience or lack of experience in particularly this type of area, the uniqueness that Mr. Neu states would be eliminated and that he would have considered this as a recreational facility. He stated his is in favor of putting forth a motion to grant the appeal and to deny the resolution of the city planner. Commissioner Black first thanked the public for their participation in the meeting. He commented that it is a tremendous showing, and great for public involvement. Commissioner Black stated he is going to vote no on the resolution which means he would agree with the appellant in their appeal. He explained that part of the reason was already explained in a very articulate manner that the idea of uniqueness is not something that applies to what is being discussed at tonight’s meeting. The Model T was unique in its day. Cars are not unique anymore saying that there are only 6 shooting galleries, shooting ranges indoor or outdoor, in the county does not mean that two or three years from now there will not be 10 or 20 in the county thereby it will not be unique anymore, in that sense, in your definition. Commissioner Black further commented that he has known the city planner for a number of years now and he trusts him in he would say every other occasion, and he trusts staff in every other occasion other than this occasion. He cannot see a shooting range being anything other than recreational, instructional involved with training, much like a gym is involved with training. The city now has a gym where professionals can come in to be trained so they can be hired. Commissioner Black stated he thinks the city planner was in error; he would not say he was in any way abusing his position. He just feels the city planner was in error, and because of that, he will vote for the appeal and against the resolution. Commissioner L’Heureux also thanked everyone who took the time out of their busy schedules to be in attendance. The Commission appreciates the input, and commented this is how democracy works. He stated this is a difficult decision, because again, the basis is so narrow of what the Commission is empowered to rule on and that makes it very difficult for people, including himself, to get his arms around to understand what it is the Commission is doing. Never the less, when he read the staff report and listened to the comments from the city planner, it states in the staff report the decision was based that an indoor Planning Commission Minutes February 18, 2015 Page 14 shooting range is unique since it is not exclusively used for recreational purposes, among other things. Commissioner L’Heureux commented that he believes the safety concern portion of the city planner’s determination, those kind of things can be mitigated and that is the reason the city has the conditional use process to begin with is to take a use that is maybe not necessarily specified in the code and see if it can be made compatible through conditions. One of the things he found persuasive from the testimony tonight was the fact that other cities that have this type of a use have it in their Planned Industrial types of zones, and as one speaker said if it is not located there, where should it be located, assuming you are going to have it somewhere in your city. You are certainly not going to put it in a residential area; you are not going to put it in a number of other places. So in all probability it is going to be in the Planned Industrial or Manufacturing area, and in Carlsbad it would be in the Planned Industrial zone. So then the question is in making the determination that the city planner made, is that supportable, and he stated he is having a real difficult time in grasping or in wrestling with the fact that other cities, and unless they have it specifically listed in their zoning ordinance as an allowed use, he is going to make the assumption, and he can be very wrong, that they probably do not, and they probably face similar situations to what the Commission is facing right now, and that they have allowed them in similar zones. He thinks that tends to tell him that again other professionals perhaps disagree with our city planner’s determination and they find that they can be either made compatible or that they are not so unique or so unusual that they should be denied from the Planned Industrial zoning. Commissioner L’Heureux stated he believes it was an error, not an abuse of discretion and he will vote to uphold the appeal. Commissioner Anderson stated she echoes her fellow Commissioners in the appreciation that the Commission feels for the public coming out and taking the time to be at the meeting and voicing their opinions. It is great to get so much public opinion because the Commission is there to make the city the best they can. With that being said, when she reads the code what she reads is that “…it allows the location of business and light industry engaged primarily in research or testing, compatible light manufacturing, and business and professional offices with certain commercial and retail uses which cater to, support, or are accessory to the primary uses allowed in this zone when found to be compatible with the P-M zone. It does not guarantee that something that is recreational is allowed in there. That is a discretionary thing that she will support the city planner. He has been charged by the City Council to use his best judgment in what he believes is in the best interest of the city and he did not believe that this particular use was found to be compatible in this particular instance. It is unfortunate as someone pointed out that this was always intended to be an indoor shooting range because that was not in the original application for the gun store and not part of what anybody thought was the intent as far as what the Commission heard. Commissioner Anderson stated she supports Mr. Neu and she supports denying the appeal. She does not feel Mr. Neu was arbitrary; she believes he used his best judgment in his interpretation of the city’s code. Chairperson Scully sincerely thanked everyone and commented that the Commission appreciates everyone for coming out and speaking at tonight’s meeting. It has been a very illuminating meeting listening to everybody, and the range and scope of the people that this has transgressed across she thinks is very interesting and is good for the Commission to see. Unfortunately whether or not there will be a shooting range is not what the Commission is debating tonight. It is whether or not the city planner abused his determination. As long as she has been on the Commission and as long as she has tried to be involved with the city, Mr. Neu, as far as she has seen, has always tried to balance and to look at things from all sides and is very literal when it comes to the city’s codes, and is very specific when it comes to the city’s codes. Commissioner Scully feels he does not deny anything unless he truly believes that it is against the code. She commented that she can think of maybe two or three items in about 5 years that have been denied by Planning, specifically by the city planner. With that she believes he has made the correct decision in denying this. She believes the codes support that, and the use is not listed in the code and it is not a permitted use. Chairperson Scully stated she will be voting to accept the denial of the appeal. Chairperson Scully asked if there was any further discussion by the Commission. Commissioner Segall asked Ms. Mobaldi what a tie vote means. Ms. Mobaldi stated it is a denial in this scenario because if Commissioner Siekmann were just on vacation or something and she were to come back, the item would be continued until the next meeting and then have the entire Commission vote and that could break the tie. But since she has recused herself that will not happen so a tie vote in this situation is a denial. The applicant can appeal the decision up to the City Council. The appeal process is the city’s check on the individual’s determination. Planning Commission Minutes February 18, 2015 Page 15 Commissioner L’Heureux asked again just to clarify that if Commissioners desire to vote to overrule Mr. Neu then they will vote no. If they desire to uphold his decision they will vote yes. Ms. Mobaldi stated that was correct. MOTION ACTION: Motion by Commissioner Anderson and duly seconded by Commissioner Segall that the Planning Commission adopt Planning Commission Resolution No. 7087 denying the appeal and upholding the City Planner’s determination that an indoor shooting range is not a permitted or conditionally-permitted use in the Planned Industrial (P- M) zone nor is it substantially similar to a permitted or conditionally-permitted use in the P-M zone. VOTE: 3-3 AYES: Chairperson Scully, Commissioner Anderson, and Commissioner Segall NOES: Commissioner Black, Commissioner L’Heureux, and Commissioner Montgomery ABSENT: None ABSTAIN: Commissioner Siekmann Chairperson Scully closed the public hearing on Agenda Item 3 and thanked staff for the presentation. COMMISSION COMMENTS Commissioner Montgomery asked about the process to implement a separate line item for gun ranges in the P-M zone. It is his understanding that the Planning Commission can propose a line item be added to the plan. Ms. Mobaldi stated a text change to the zone code can be initiated by the City Council, the Planning Commission or the city planner. If the Commission wanted to initiate that, the Commission would have to do that at a separate meeting so that it can be included as an agenda item, it can be discussed and then the Commission can initiate the request. Commissioner Montgomery asked how the Commission can initiate it. Mr. Neu stated the Commission’s action would be to take a vote this evening as the whether there is a majority interest in carrying it forward as a future agenda item. If there is, staff would bring back to the Commission information regarding it and the Commission could make a determination as whether the Commission wanted staff to pursue a code amendment. Ms. Mobaldi suggested that, because she anticipates that the applicant will appeal this decision the Commission may get the same result through an appeal of this item to the City Council. Commissioner Montgomery stated he agreed and thinks that Commissioner Siekmann would be able to vote on a zone code amendment without regard to her association with the Gunthers. Commissioner Segall asked if that could be done at a future meeting so if the Council made a decision then at a future meeting, if the Commission asks that it be put on the agenda, then it can be discussed at that time. Commissioner Montgomery stated the reason he is suggesting it is maybe the hesitancy of some of his fellow commissioners tonight and how they voted because they did not want to determine that an error was made or an abuse was made, taking that element out and just allowing the use by discussing the use without speaking on the singular issue of the determination done by the city planner would make a different result happen. Commissioner L’Heureux commented that it is possible that if it is appealed to the City Council, the City Council could give direction to the city planner to initiate at their insistence, which would then again eliminate the issue at the Commission’s level. So again, as the Council does watch these meetings and they will at least be hearing what the Commission is saying that again maybe they will be intuitive enough to take this on their own if they think this is something that is worthwhile. If they do not, then the Commission can take note of that and act accordingly or the Commission can initiate it on their own and send it back up to the Council. Commissioner Black commented that as he understands it, the Commission comments at the end of the meeting are included in the minutes. Ms. Mobaldi stated absolutely. Commissioner Black stated that the Council will have the opportunity to hear the discussion as it is being stated now. Planning Commission Minutes February 18, 2015 Page 16 Chairperson Scully made a recommendation that these past comments are entered into the record. Commissioner Segall added that the position the Commissioners took should be almost verbatim because of the importance of the item and the reason the decision was made so that it is clear. · Ms. Mobaldi stated that because of the amount of public interest with this item, the minutes will be fairly detailed, and the Council Members can also watch the webcast and look at the meeting if they want to. Chairperson Scully thanked staff as they have done a great job with a difficult scenario. Commissioner L'Heureux added that, and he feels he can speak on behalf of all the Commissioners, that the Commission certainly respects Mr. Neu's professionalism and stated Mr. Neu is in a very difficult position of having to make decisions. This is why there is the systems of checks and balances, but there is nothing personal in this decision. He thanked Mr. Neu for everything he does for the Commission and for the city. This is one of hundreds and hundreds of items that are processed and it certainly is not a reflection on the city planner. CITY PLANNER COMMENTS None. CITY ATTORNEY COMMENTS None. ADJOURNMENT By proper motion, the Regular Meeting of the Planning Commission of February 18, 2015 was adjourned at 9:28p.m. ~~ DON NEU City Planner Bridget Desmarais Minutes Clerk