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HomeMy WebLinkAbout08-12-2008 PC Minutesi g ? Cot-ni-nission i t Minutes uesd ay, August 2, 2008 CALL TO ORDER/ROLL CALL A regular meeting of the City of Dublin Planning Commissicn was held on Tuesday, August 12, 2008, in the City Council Chambers located at 100 Civic Plaza. Chair Schaub called the meeting to order at 7:00 p.m. Present: Chair Schaub; Vice Chair Tomlinson; Commissioners King, Wehrenberg, and Biddle; Mary Jo Wilson, Planning Manager; Martha Aja, Assistant Planner; John Bakker, City Attorney and Debra LeClair, Recording Secretary. Absent: None ADDITIONS OR REVISIONS TO THE AGENDA - Chair Schaub suggested having the Public Hearing before the Oral Communications. The Commis Sion agreed. MINUTES OF PREVIOUS MEETINGS - On a motion by Cm. Biddle, seconded by Cm. Tomlinson the minutes of the July 22, 2008 meeting were approved. CONSENT CALENDAR - NONE WRITTEN COMMUNICATIONS - NONE PUBLIC HEARINGS - 8.1 PA 07-030 - Extension of a previously approved Site Development Review for a temporary practice field and temporary weight/ training building at the Valley Christian Center. Martha Aja, Assistant Planner presented the project as outlined in the Staff Report. Cm Wehrenberg asked if the Applicant is requesting only 6 months or are they allowed a longer period of time. Ms. Aja answered the requests can only be made in 6 month intervals. Cm. Wehrenberg was concerned about the weather delaying the completion of the project within 6 months. Mary Jo Wilson, Planning Manager stated if they have applied for building permits the City would consider that a vested right as long as they are continuing with construction of the project. Cm. King asked if the Applicant will only need to move a few feet of dirt to be vested for the project. John Bakker, City Attorney the permit is in effect for as long as the project is under construction, and is defined by the act of moving towards construction and this will keep the SDR current. 76 But if they abandon the project they could loose their rights under the SDR permit. Mr. Bakker explained the "Vested Rights" doctrine to the Commission. Cm. King asked if the Applicant is able to come back in 6 months for another extension. Mr. Bakker answered the Applicant can only receive one six month extension. Cm. Biddle commented that the Conditions of Approval #22 slates there will be no games at the site, #21 states there will be no field lights, and #20 states the practice field will become a future parking lot. Chair Schaub opened the public hearing. Dennis Ballou, resident, CA Highlands was concerned about the increased crime in the area of Valley Christian School and felt the addition of the practice field and the construction of it will attract more crime and vandalism. He mentioned that he lip es at the end of the street where the facility will be built. Chair Schaub answered that the field is located across from the girl's softball field and is not near the corner of Dublin and Inspiration. He stated he is also concerned about the crime and agreed to speak with the Chief of Police regarding the problem. Cm. Tomlinson suggested making his comments at a City Council meeting. Cm. King explained the function of the Planning Commission and stated he was unaware of the problem. He also agreed with Cm. Tomlinson regarding making his comments at a City Council meeting. Chair Schaub stated that one of the findings the Planning Commission must make is safety of the project. Mr. Ballou also asked about solar panels installed on his home and was directed by Chair Schaub to his HOA and by Ms. Wilson to the Building and Planning Departments for permits. Chair Schaub closed the public hearing. Chair Schaub was concerned that the project field is approximately 10-15 feet above the street and was concerned about balls going into the street and possibly injuring a passing motorist. Cm. Wehrenberg stated that during the original public hearing there was a discussion regarding fencing to keep the balls within the practice field. Chair Schaub mentioned that if someone throws a football and it hits a car on the street, the driver would not see it and if someone were injured the school would be responsible. Cm. Tomlinson felt the 6 month extension was a reasonable request. q_ 77 On a motion by Cm. Biddle and seconded by Cm. Wehrenberg the Planning Commission unanimously approved: RESOLUTION NO. 08-18 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF DUBLIN APPROVING A SIX (6) MONTH EXTENSION OF A PREVIOUSLY APPROVED SITE DEVELOPMENT REVIEW FOR THE VALLEY CHRISTIAN CENTER WHICH ALLOWED A TEMPORARY WEIGHT/TRAINING BUILDING AND FOOTBALL PRACTICE FIELD LOCATED AT 7500 INSPIRATION :DRIVE PA 07-030 ORAL COMMUNICATIONS - 5.1 Brown Act - information for the Planning Commission. John Bakker, City Attorney and Stephen Muzio, Associate at Meyers, Nave spoke regarding the Brown Act, Due Process, and the Political Reform Act as well as Conflict of Interest issues that could apply to Planning Commissioners. Mr. Bakker stated the concept of a meeting. There was a discussion regarding what constitutes a violation of the Brown Act when 2 members of a commission or committee speak to each other. Cm. King stated that Cm. Tomlinson and Chair Schaub met to discuss an issue and he then called Cm. Tomlinson to discuss the same issue and Cm. Tomlinson pointed out that it could become a Brown Act violation. Cm. Tomlinson mentioned they did not discuss the issue at that time. Cm. King asked Mr. Bakker to explain how that would be considered a Brown Act violation. Mr. Bakker answered there must be a collective concurrence ceveloped for it to be a violation. He stated that if Cm. King had asked Cm. Tomlinson for his opinion and then discussed it themselves that would not be a violation. Cm. King asked if there was a distinction between talking and sharing information and reaching a consensus of opinion. He also asked about emails and if they are allowed. Mr. Bakker answered that if one commissioner discussed the issue with another commissioner and they developed their collective thinking about it and then one transmitted that information to a 3rd commissioner, at some point a collective concurrence is developed. He stated that by keeping the conversations between 2 Planning Commissioners they can avoid a Brown Act violation. 108 Pe", ?w 78 Cm. Tomlinson asked if he and Chair Schaub have an opinion. about an elevation of a building and their opinion is different than what is submitted by the Applicant. Then Cm. King asks Cm. Tomlinson what he thinks of the elevation. Then Cm. Tomlinson states his opinion and adds how he thinks it should be changed. He asked Mr. Bakker if that could be considered a collective consensus. Cm. King felt that if it could be proven that they did not came to consensus but just had a conversation it would be allowed. He suggested it could be saner to communicate via email. Cm. Wehrenberg felt it was part of due process to ask questions. She felt it could be misleading to form an opinion based on what is in front of them without asking Staff hearing from the public and Applicant. Cm. Wehrenberg asked if any conversations outside the meeting would have to be disclosed in the meeting. Mr. Bakker answered they would cover ex parte conversations later in the presentation but stated it would only apply to certain types of proceedings but the commissioners should avoid ex parte contacts, but if there is contact they should disclose it so that everyone relies upon the same evidence at the hearing. Mr. Bakker thought Cm. King was referring to a General Plan Amendment which is not subject to ex parte contact policy. Chair Schaub mentioned an incident where he had information regarding a project and sent the information to Ms. Wilson and Mr. Bakker and let them decide to send it out. He stated he sent the information because he didn't think Staff had it and the rest of the commission would need it to make their decision. Mr. Bakker stated the reason they have recommended sending such information to Staff for distribution to the commission is that it avoids possible Brown Act violations by sharing information among the Commissioners. Mr. Bakker covered ex parte contact issues and the legal standards regarding the Brown Act. There was a discussion regarding sharing information via email. Cm. King stated that he had emailed a series of questions to the other Commissioners, not expressing his opinion but only suggesting they ask those questions. Chair Schaub stated the questions were not about a certain project but was regarding developing the City's design policy. Mr. Bakker stated it only applies if the information is within your subject matter jurisdiction. He also felt that sending email to the other Commissioners would not be considered a meeting unless they all answered. Mr. Bakker continued with "Serial Meetings" and the differen_ types: 1) Daisy Chain; 2) Hub and Spoke; 3) Right to Confer; 4) Advisory/ informational memo; and 5) email as a serial meeting. 79 Cm. Biddle asked if it is appropriate for a developer to ask the opinion of one of the Commissioners, but it would not be appropriate for him/her tz) share that opinion with another Commissioner. Mr. Bakker answered that if someone indicated they were going to do that then the Commissioner should inform them that it could be a Brawn Act violation. Mr. Bakker continued that if the information the developer receives from the individual Commissioners changes the way he presents his project that could lead to collective concurrence. Cm. King referred to Page 2 of the handout where it states 'Advisory/Informational memoranda from staff to all members are not violations though they may be public records" and asked Mr. Bakker to clarify if informational memoranda from members to other members would be a violation. Mr. Bakker stated that if the memo comes from Staff it is not a violation and it is not a violation if it comes from the Commission but felt it is not a good practice because it could result in a Brown Act violation. Cm. Tomlinson asked if it would be appropriate to share information regarding a project with the other Commissioners. Mr. Bakker answered they should send the information to Staff who will then send it out and Staff will also have a copy for public record. Mr. Bakker spoke regarding "Closed Meetings/Sessions." There were no questions or comments on this subject. Stephen Muzio, Associate at Meyers, Nave spoke regarding "Due Process: Ex Parte Contacts." Cm. King commented on Page 3; paragraph B1 of the handout which states: "For instance, the Commission acts in a quasi-judicial capacity when it considers variances, conditional use permits and site development reviezo approval;;..." Cm. King asked if this item means the Commission cannot seek outside information. He felt it was not in the best interests of the City for the Planning Commission to review only the information that Staff and the Applicant presents. He continu 2d the public would only be able to comment during a public hearing. He felt the process would inherently lead to improperly informed, hasty decisions that are not in the best interests of the residents. Cm. King continued that he agreed that all decisions should be deliberated and made in a public meeting. Cm. King gave the example of an auto repair company who aFplied for a Condition Use Permit to park cars in an adjacent parking lot on the weekends. He stated all the evidence that was presented to the Planning Commission indicated the parking lot was always crowded and approving the CUP was not appropriate. He continued the Applicant mentioned in conversation the he brought a photograph showing the parkin€; lot was empty on the weekends. These were photographs that were not presented in the Staff Report therefore the Planning Commission would not have approved the CUP when it was clearly an appropriate use for the site. Cm. King felt it was unreasonable not to be able to share information with decision makers. { 80 Chair Schaub agreed with Cm. King. Cm. King asked where the authority comes from that states conditional Use Permits and Site Development Review approval as quasi judicial. Mr. Muzio answered there is no document that lists what is qu asi judicial or quasi legislative. Mr. Bakker commented the principle behind the due process law is that there is a liberty interest or a property interest at stake. He continued the courts hz ve stated that when a land use decision deals with a particular property, applying existing la,,,,s to that property, that is a quasi judicial proceeding. Mr. Bakker stated he did not believe there is a case that refers to Site Development Reviews which are specific to Dublin, but he did believe there are cases that refer to variances and Conditional Use Permits as quasi judicial types of proceedings because the Planning Commission would focus on applying existing Dublin laws to a particular property and the concepts are those based on the facts that are received at a hearing and applying those facts to the law. He stated the City's ex parte policy (Resolution #234-05) says if you obtain information that will be relied upon in the course of the hearing you must disclose the information to the other Commissioners in order for everyone to rely upon the same information at the public hearing. Chair Schaub commented Mr. Bakker was not saying the Commission cannot conduct their own research but if they do they must disclose the research to the Commission. Mr. Bakker stated that the City's ex parte policy indicates the Commission should avoid conflicts. Chair Schaub felt that by not allowing the Commission to do their own research the Commission would be approving projects after hearing only one side of the information. Mr. Bakker stated the policy does not prohibit the Commission from asking Staff for more additional information and if it is not presented at the public hearing the Commission can contir ue the item until the information is available. Chair Schaub felt it was in the best interest of the residents for the Commission to be able to conduct their own research as long as they disclose the information to the other Commissioners. There was a discussion regarding the City's policy regarding the Commission conducting research. Mr. Bakker felt it was only a violation of the City's policy not a violation of the Due Process clause unless you fail to disclose it. Cm. Tomlinson suggested they ask the City Council to amend the ex parte policy. Mr. Bakker reminded the Commission that the policy only applies to quasi judicial proceedings and most of the projects the Planning Commissions approve, are mixed (SDR, PD and GPA) then it doesn't apply. Chair Schaub stated that if the Planning Commission finds information that is valuable to the City and the residents then it is their obligation to bring it to the Commission. +-._ 81 Cm. King agreed with Chair Schaub and felt it was appropriate to have a disclosure rule regarding information obtained outside of the meeting. Cm. Biddle asked if it would be appropriate if a Commissioner obtains outside information and shares that information at the meeting. Mr. Bakker answered that assuming the proceeding is a quasi judicial proceeding then he would be intentionally receiving contacts related to the proceeding. There was a discussion regarding similar situations where the : ommission brought information to the Commission at the Public Hearing that was not available in the Staff Report. Mr. Bakker understood the Commission is concerned about the prohibition of intentional contact and not being able to do their own site visits. He suggested if the Commission wanted to narrow the ex parte contact policy an intermediate step would be to allow contact or site visits but require disclosure at a hearing. Chair Schaub stated that he may send an email to Staff with concerns regarding a project and staff will share those concerns with the developer which he encourages. He continued the developer may call him but at that point he tries not to meet with them because of time constraints, but, if it's an important developer he feels obligated to. He stated that he lets Staff know when he's meeting with a developer and the meetings are generally held at City Hall. He felt that if he did not meet with the developer and discuss his concerns it could delay a decision on information that could have been handled quickly. Cm. Biddle felt it was good to inform Staff of the meeting and have the meetings at City Hall. Cm. Wehrenberg stated she was contacted by developers and made it her personal policy to say no thank you and let them know she would wait until the meeting to speak with them. She felt the Commission has gone through study sessions and public hearings with Staff and made their preferences known. She felt that having one or two Commissioners meet a developer and tell them what they want seems to represent the entire Planning Commission which is actually not what the Planning Commission wants. Cm. King felt with any third party contact the Commissioner should not express any view, opinion or make any promises. Cm. Tomlinson commented that the distinction in what Cm. Wehrenberg says is that it is what "we" want not what "I" want when it should be what the Commission wants. Cm. Wehrenberg stated the Commissioners spend time reviewing the packets and felt that to have the project change from what was reviewed is a waste of time. Chair Schaub stated they cannot control what the developers submit. Cm. Wehrenberg agreed but felt they use the meeting process as the Commissions opportunity to ask questions and discuss the project. 82 Cm. King commented that if you have total faith Staff has presented the complete project then you can review it and apply your own opinion. He continued that sometimes Staff could miss something that the Commission feels is important. Mr. Bakker continued with the "Political Reform Act: Conflicts of Interest" section of the presentation. There was a discussion regarding the 500 foot radius for (commissioners where there is a conflict regarding property ownership and the Commissioners. Ms. Wilson indicated the Commission receives all public notices sent out by the Planning Department. Cm. Wehrenberg asked if you are on a non-profit board. Mr. Bakker answered if the board is the Applicant then you are not precluded from participating provided you don't receive pay or compensation from the board but serving as a volunteer there would be no conflict. Mr. Bakker stated there are other issues of council members sitting on a board of non-profit organizations that were contracting with the city which cause different problems. Service on a non-profit board is not a violation. Cm. Wehrenberg asked if the fact that she works for Kaiser could be considered a conflict of interest. Mr. Bakker answered the fact that she receives income from a non-profit there would be a conflict, but if Kaiser is the Applicant there would also be a conflict. Cm. Wehrenberg agreed but asked if the Applicant was not Kaiser but it different medical or hospital organization and the issue was the property next to where Kaiser owned the property she would not want to put herself in a situation of denying a project for the betterment of Kaiser and stated she would excuse herself from reviewing the application. Mr. Bakker answered the fact that Cm. Wehrenberg works for Kaiser creates a financial interest that has the potential of being a conflict of interest. Mr. Bakker indicated that the Commissioners should contact the City Attorney or FCCP with questions and they can determine if there is a conflict of interest. Mr. Muzio spoke regarding "Limitations on Gifts" there were no comments or questions. Mr. Bakker asked if there were any other questions, there were none. NEW BUSINESS: Cm. King was concerned about the west side of the Elephant Bar. He stated that the Commission requested they move the front door to en3ure that the west wall would be painted a certain way to make it look interesting in the parking lot area. He stated there was a Condition of Approval that was specifically added. He continued the building is now complete and he felt the area does not comply with the Condition of Approval. Chair Schaub stated the Commission was concerned about how the building looked from the parking lot and had agreed to special painting of the west wall so that it would not look like the trash area. 83 Cm. King asked if the Applicant changed the plans or was the request brought to Staff. Ms. Wilson answered the Applicant brought the changes to Staff. She stated she pulled the minutes from the meeting and stated there was a discussion regarding the design and the Zebra stripes, and the minutes indicated the Commission thought that the Zebra stripes were overly done on the building. She stated there were two conditions added to the application and read them to the Commission. She continued that in most instances the Applicant comes to Staff with insignificant modifications to buildings and one of the modifications for this building was that the trash enclosure area on the west side was not appropriately sized or designed correctly and there were doors that did not have the correct locking on them so the doors had to be modified and took out most of the area of the Zebra stripes anc. because that part of the building had to be redesigned the Zebra stripes on the back of the building were lost. Also, the Elephant Bar stated the stripes were no longer part of their marketing plan. She stated the City works with Applicants frequently to make changes to approved plans and then must determine if the change is significant enough to bring it back to the Planning C=ommission. She mentioned the Applicant made other changes to the plans including installing roof mechanical equipment and the screening. She continued the Applicant installed the equip cnent without the City's approval and Staff had to work with the Applicant over the course of several months to approve the screening. She agreed that the building has changed from w:tat was originally approved and indicated Staff tries to do the best they can to retain what the Planning Commission approved. Cm. King stated he understood that staff does the best they can given the competing pressures of making decisions. He suggested that if there is an item that the Commission felt strongly enough to add a condition it was because they felt it was important. He continued he understood that Staff has a lot of discretionary decisions but if something is specifically addressed and added as a condition it is very disappointing to find it has not been implemented. He asked if they could still paint the west side with the Zebra stripes. He felt the building was part of what the Commission was hoping to achiE ve for the downtown redesign. Ms. Wilson answered the building has been finaled and the Applicant has gone through all the documented changes but she did not feel the City could go back and require them to repaint the wall. She stated that in looking at the original elevations she found that the stripes would be painted on only a small portion of the building. She continued because the doors had to be modified in number and size it took up most of the area that wits to be painted. Chair Schaub stated the Commission had wanted more of the stripe on the west wall to make the wall more attractive. He was concerned about the stenciling on the back door and felt it was not in keeping with what they had wanted for that side of the building. Ms. Wilson answered the back door was a detail that is required by the Building and Fire Department as a safety issue and also as a marker for trash collection. Chair Schaub asked why they were allowed to mark the buildings with spray paint. 12, 84 Ms. Wilson answered it was done after the building was finaled and many times Staff sees the signage after the project is completed. She suggested code enforcement could review the paint on the door. Chair Schaub suggested they should paint the sign like a legitimate sign and not with spray paint. He was concerned the Applicant was treating that side of the building like it was not part of the rest of the corporate theme. Cm. King stated the Applicant has violated two directions the Commission is trying to go in which is four-sided architecture and what the shopping center should be. He felt the shopping center was not consistent. He understood Staff must make decisions but felt that if the Commission thought it was important then it should be refe_-red back to the Commission for approval. Ms. Wilson thanked Cm. King; for his comment and stated Staff tries to bring back to Commission the right projects. Chair Schaub was concerned about such a significant change from what was approved and felt the City should not be concerned about their corporate logo. Cm. King agreed and felt that if there is a message to Applicants that they can do what they want and ignore what the Commission has approved that would need to change. Ms. Wilson felt there was no perception like that with the develoeprs and that Staff is very clear with the Applicants about what the Commission wants to see. Cm. King felt there is sometimes a disconnect between the builder and the person doing the job. There was a discussion regarding; Conditions of Approval and how they are met or not met by the Applicant and what the Commission can do to ensure compliance. There were several examples of safety concerns where conditions were not being met. Chair Schaub suggested that if art Applicant is going to alter the outside of their building, and it is a significant alteration then it should be brought back to the Planning Commission for approval. Ms. Wilson felt the Commission was giving good feedback to Staff to ensure that this situation does not happen in the future. Chair Schaub asked if the Commission would like to further discuss the policy of talking to developers. Mr. Bakker suggested the Commission direct the City Attorney to bring something back to the Commission since this issue is not on the agenda. Chair Schaub indicated the Commission did not want to direct the City Attorney ask the City Council to change the policy regarding talking to developers but rather to have a discussion regarding the Commissions own policy and what is best for the Planning Commission. 85 There was a discussion regarding a project that Chair Schaub was not able to attend the meeting. He stated the developer called him because of an er.zail sent to Staff and shared with him, regarding a problem Chair Schaub had with the design of the building. He stated the Applicant called him directly and Chair Schaub declined to speak with him about the project at that time. He stated the developer indicated to him that he needed to get the project through the Commission or they would loose their tenant. Cm. Tomlinson met with the developer who subsequently changed the project: plans just before the hearing. Chair Schaub agreed with Cm. Wehrenberg's point that there is no need to have something come to Commission at the hearing that was not in the packet. He stated when Cm. Tomlinson met with the developer he had not wanted them to bring a new drawing but only wanted to convey his opinion. He stated the Commission and Staff knew the Applicant was bringing updated drawings to the meeting but not seen them before their. Cm. King asked if Chair Schaub felt pressure because the Applicant was suggesting the project needed to be approved immediately. Chair Schaub answered yes. Mr. Bakker stated that if the commission wished to have an extended conversation among the Commission on this subject it should be placed on a future agenda, since it was not on the agenda. Cm. Tomlinson asked to have the item placed on the agendo for the next scheduled meeting under ORAL COMMUNICATIONS. Cm. King asked that the discussion include the issue of Applicants pressuring the Commission into making a decision. Mr. Bakker stated it would be helpful to Staff to have an understanding of what the Commission would like to discuss. ADJOURNMENT - The meeting was adjourned at 9:08 p.m. ATTEST: , Mary f oYWil on, AI& Planning Manager G:\ MINUTES ? 2008 ? PLANNING COMMISSION \ 5.12.08.doc Respectfully submitted, t '.', ,mac Bill Schaub Chair Planning Commission - z i..,j I', 20 N 86