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HomeMy WebLinkAbout01-13-2009 PC Minutesp Planning Commission Minutes Tuesday, January 13, 2009 CALL TO ORDE&ROLL CALL A regular meeting of the City of Dublin Planning Commission was held on Tuesday, January 13, 2009, in the City Council Chambers located at 100 Civic Plaza. Chair Schaub called the meeting to order at 7:10 p.m. Present: Chair Schaub; Commissioners Wehrenberg, Swalwell and King; Jeri Ram, Community Development Director; Jeff Baker, Acting Planning Manager; Kit Faubion, City Attorney; Laura Karaboghosian, Associate Planner; and Debra LeClair, Recording Secretary. Absent: None ADDITIONS OR REVISIONS TO THE AGENDA - NONE MINUTES OF PREVIOUS MEETINGS - On a motion by Cm. King, seconded by Cm. Wehrenberg the minutes of the December 9, 2008 meeting were approved and the minutes of the Study Session on December 9, 2008 were approved with modifications. ORAL COMMUNICATIONS - Jeri Ram, Community Development Director acknowledged former Planning Commissioner Don Biddle with a plaque for his years of service to the Community. 5.1 Administration of Oath of Office by Caroline Soto, City Clerk to newly appointed Planning Commissioner Eric Swalwe 1. 5.2 Election of Officers for Chairperson and Vice-Chairperson. Chair Schaub made a motion to appoint Cm. Doreen Wehrenberg as Chair, 2nd by Cm. King and by a vote of 4-0 Cm. Doreen Wehrenberg was elected Planning Commission Chair. Chair Wehrenberg made a motion to appoint Cm. Morgan King for Vice Chair, seconded by Cm. Schaub and by unanimous vote was elected Vice Chair of the Planning Commission. 5.3 Appointment of Planning Commissioner as Liaison to Housing Committee. Chair Wehrenberg suggested Cm. Schaub to serve as the Liaison to the Housing Committee. Cm. Schaub agreed. Jeri Ram, Community Development Director informed Cm. Schaub that the first meeting of the Housing Committee is on Thursday, January 14, 2009 on Goals and Objectives. A motion was made by Vice Chair King to appoint Cm. Schaub to the Housing Committee, seconded by Cm. Swalwell and by a vote of 4-0 was appointed. Tranning Commission January 13, 2009 ftgurarWeeting CONSENT CALENDAR - NONE WRITTEN COMMUNICATIONS - 7.1 General Plan Conformity Report for the City's Acquisition of 5777 Scarlett Court (84 Lumber Property; APN 941-0550-029) to serve as the City's Maintenance Yard Facility (CIP Project No. 93570). Jeff Baker, Senior Planner presented the project as stated in the Staff Report. Cm. King asked what the use of the property will be. Mr. Balser answered it will be used as a maintenance yard. Cm. King asked where the yard is at present. Mr. Baker answered there is a small area at the end of Scarlett Ct. used as a maintenance yard Chair Wehrenberg asked what other sites were considered. Mr. Baker answered the need for a maintenance yard had been identified for some time but no funds were available, this parcel was for sale, and it fit the Cities needs. Cm. Swalwell asked how the property would be secured. Mr. Baker answered that he had not seen the improvements plans as yet. Chair Wehrenberg asked how soon the Commission will be able to review phase 1 of this project. Mr. Baker answered they had not seen the plans yet and was not sure when they would. On a motion by Cm. Schaub and seconded by Cm. King, :)n a vote of 4-0-, the Planning Commission approved the following: RESOLUTION NO. 09 - 01 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF DUBLIN FINDING THE CITY'S PROPOSED ACQLISITION OF 5777 SCARLETT COURT (APN 941-0550-029) TO BE IN CONFORMITY WITH THE DUBLIN GENERAL PLAN PUBLIC HEARINGS - 8.1 PA 08-023 Iroonet Conditional Use Permit (Adjudicatory) to Operate a Boarding House in which up to 16 people may live and to allow for an On-Site Parking Reduction at 3608 Oakhurst Court. Laura Karaboghosian, Associate Planner presented the project its stated in the Staff Report. Cm. King asked for the definition of a boarding house in the City's Zoning Ordinance. Ms. Karaboghosian read the definition from the Zoning Ordinance which states "The term Boarding Tfanning Commission January 13, 2009 ftgnfar Meeting 2 House shall mean a single-family dwelling where bedrooms are rented to five or more people and at least one common meal is offered each day. A Boarding House is considered to be a Multi-Family Dwelling." Cm. King asked Kit Faubion, City Attorney if the boarding house would fall under any state statute which creates special status for child daycare centers. Nis. Faubion answered that it does not. Cm. King asked if the parking formula is based on the assumption that the boarding house would be for adults. Ms. Karaboghosian answered there is no distinction provided in the Zoning Ordinance between minors and adults. Mr. Baker noted that the code does not distinguish between minors and adults, but it does allow, through a Conditional User Permit, to make exceptions to parking requirements by reviewing the specific use. If that use functions differently, a9 in the case where the boarders are not allowed to drive, the parking required to be provided would potentially not be necessary therefore it allows the judgment through CUP. Cm. King asked if one of the Conditions of Approval would prohibit the minors from driving. Ms. Karaboghosian answered yes under Condition #13 and it is also a condition of Iroonet America, Inc. Cm. King asked if the Applicant is asking for a parking reduction from 6 spaces to 3 spaces. Ms. Karaboghosian answered yes. She continued that 3 spaces would be provided on site, either in the garage or the driveway. Cm. King asked if caretakers reside on-site and if each have a vehicle. Ms. Karaboghosian answered yes the caretakers reside on-site but they do not have individual cars, they would use the 2 minivans provided by Iroonet America, Inc. He asked if the cook visits every day and has a vehicle. Ms. Karaboghosiar answered yes. Mr. Baker stated that Condition #10 restricts the number of vehicles (including personal and company vehicles) to a total of 3 at any one time. Cm. King asked if there would be deliveries made to the residence. Ms. Karabogosian answered no because the cook does the shopping once per week. Cm. Schaub felt that Condition #1 was critical and wanted to make sure the Planning Commission understood it. He felt it basically said that anything that happens outside of the application is in violation of the Conditional Use Permit. He continued that this is a complex issue that the Commission has not reviewed before and was unsure if all the issues are represented in the Conditions of Approval. He asked if Condition #1 was considered an umbrella condition that states that anything that is not coN ered in the other conditions is covered under Condition #1. Mr. Baker answered yes. Ms. Faubion commented that Condition #1 does serve as an umbrella and identifies what the permit is being issued for and the basic elements of that perinn.t. She continued not everything would be a violation of the permit, but in the land use context anything that happens that violates the Conditions of Approval or that is different from what the Applicant proposed in their application, then those potentially could be a violation of the permit. She stated for Planning Commission January 13, 2009 fgular 9teeting 3 example, if the number of boarders were increased that would be in conflict with the Conditional Use Permit. Chair Wehrenberg mentioned that the Applicant would not be able to substitute for a different mix of caretakers and children. Ms. Faubion stated that this permit is issued for a specific number of caretakers and children, not just a certain number of people no matter their role. The facility has a specialized operation and the permit approves that operation for up to a specific number of boarders and caretakers. Therefore, if there were only one caretaker, you can't add another boarder. Chair Wehrenberg asked where the number "16" came from. Ms. Karaboghosian answered that originally the Applicant asked for 2 caretakers and 12 children for a total of 14 people living on site. She continued that the CC&Rs allows 2 occupants per bedroom. She stated that the Applicants requested to be identified as a "congregate living facility" according to CA Building Code requirements, which would allow for up to 16 people to live on site. Staff included a Conditions of Approval that would limit the number of people to 2 caretakers, 2 children related to the caretaker and 14 boarders which represents the "16" that Chair Wehrenberg asked about. Chair Wehrenberg felt the plans do not indicate that many people could physically live in the house and asked if the Commission could adjust the number. Cm. Schaub asked if Staff could explain the breakdown of people (number of caretakers, children and boarders) being requested to live at the house. He felt that the plans do not indicate that number of people indicated in the application could live in the house. He stated that after the Commission discusses the issue, and the numbers could potentially change, the plans that were submitted (date stamped 10-3-08) would change and would no longer be valid. Cm. Swalwell stated he learned from Staff that there are no ether boarding houses in Dublin. He asked if there had been any noise complaints at this location. Ms. Karaboghosian answered that there had not been any specific noise complaints but the project was complaint driven. She stated the complainants were concerned about the number of children coming to and from the site. Cm. Swalwell asked if Staff had reviewed any concerns regarding water needs versus the number of people living in the house. Ms. Karaboghosian answered Staff had not addressed that issue. Cm. Swalwell asked if water could be a future concern and Ms. Karaboghosian answered she did not anticipate water to be a concern in the future. Mr. Baker stated that the project is considered a residential use and would be consistent with anticipated water demands for that use. Cm. Swalwell asked if even with "16 people living at the site there would be no increase on water or sewage demand. Gregory Shreeve, City Building Official stated the house is designed as a single family dwelling, the occupancy load is 200sq ft/person, by code the house could have 19 people; therefore, the water and sewage design is for 19 people. He stated that Staff is using a special provision in the building code that allows the Building Official to reduce the occupancy load to a certain Planning Commission January 13, 2009 fgu(arWeeting 4 number. That's where the maximum of 16 occurred. He stated if more than 16 occupants were proposed then it would trigger additional building code requirements that the building cannot meet without major modifications. Cm. Swalwell asked if those provisions included fire also. Mr. Shreeve answered yes. Chair Wehrenberg asked if ADA requirements are also taken into consideration. Mr. Shreeve stated the City does not enforce ADA requirements, they enforce Title 24 regulations and those would be the major modifications5 needed to make the house fully ADA accessible. Cm. Schaub asked if the Commission can add a condition that would eliminate special needs children from occupying the house. He continued that traditionally the Commission would not condition anyone out of home, however, given the circumstances, the requirements would trigger modifications to the house. Mr. Shreeve stated that from a building code perspective Staff would treat it as any other single family residence that needed accessibility modifications. He stated the major difference is, under the building code, the entire boarding house must be accessible including the second floor. He continued all bathrooms must be upgraded, which is a major expense. He stated that the expense was one of the reasons they decreased the number to 16 people as a "congregate living facility" however, the house can be modified to allow some disabled people on the first floor. Chair Wehrenberg asked if the children would be considered foreign exchange students with requirements for license and who would enforce those requirements. Ms. Faubion stated that there may be requirements for foreign exchange students but none is a land use or zoning permit that the City would enforce. Cm. King felt that Chair Wehrenberg wanted to know if there is an organization or agency that regulates this kind of boarding house. Cm. Wehrenberg stated she was familiar with the foreign exchange program where one or two students stay with a host family, but not when they stay for an extended period of time. Ms. Faubion stated there may be other requirements for the students but none are land use requirements and there are no licensure requirements for boardinghouses. Cm. Schaub referenced a letter from the HOA regarding commercial vs. residential uses and raised the question about the Planning Commission possibly allowing a commercial business in a residential district, and creating a situation where the HCA would not have the right to enforce their CC&R's. He asked how the Planning Commission's comments/action would interfere with the HOA's ability to enforce their CC&Rs. Ms. Faubion answered that the HOA's comments addressed commercial uses in residential areas; however, under the City's Zoning Ordinance this project is considered a residential use. She continued the CC&R's are agreements between landowners. The City is not a party to those agreements and does not enforce them. She stated that if the H:OA feels that there is a violation Planning Commission January 13, 2009 WsgularWeeting 5 of the CC&Rs then they can decide to take action against the Applicant, but the City would not be a party to that action. Cm. King stated that even though the City can approve a project it may not grant a homeowner the right to do something if it violates the CC&R's. Ms. Faubion agreed and stated that because the CC&R's are private agreements they can be much more restrictive than City Ordinances. Chair Wehrenberg stated that the CC&R's are provided when buying a home. Ms. Faubion agreed and stated that CC&R's are recorded and given to homeowners to show what they are agreeing to among themselves. They are recorded and available to the homeowners. Chair Wehrenberg asked what the plan is in case of an emergency that would take the caretaker away from the group. Ms. Karaboghosian answered that the Applicant was present and could address this issue. Cm. King asked about the condition regarding the number of tutors allowed at the residence. Ms. Karaboghosian stated Staff limited the project to one tutor at a time much like a single family dwelling where a child would receive piano instructions. She continued that the Applicant indicated that the children receive offsite tutoring Monday through Friday. Chair Wehrenberg opened the public hearing. John Doyle, Applicant's attorney spoke in favor of the project. He thanked the Commission for reviewing his January 12th letter before the meeting, and stated he had also reviewed a variety of correspondence in opposition to the project and discussed those concerns with Staff. He felt that most of the concerns regarded traffic, noise, nuisance and the number of children. He stated the number of children is 14 because the home has 7 bedrooms and according to the CC&Rs they are allowed 2 persons per bedroom. He stated under the Conditions of Approval and the Iroonet Company policy, the children are not allowed to drive. They are under 18 years of age, are students and in the custody of the Iroonet caretakers with the permission of their parents. He stated that their intent is to be a good neighbor, to use the home as a residence and to be treated as any other residence in terms of the number of people living there. He stated that the Applicant feels they have familial status based on the definition of that status in the Federal Fair Housing Act and the California Fair Housing Act; therefore, they are entitled to the single family use without the need for a Conditional Use Permit. But in order to address neighbors concerns, so that they have a mechanism to address; perceived violations, they have submitted the application and agreed to the Conditions of Approval, knowing that if the conditions are violated the Conditional Use Permit can be revoked. In conclusion, he pointed out that the Applicant does not believe they need to participate in this process because of their familial status but agreed to participate so that conditions can be imposed and the neighbors would have a means of monitoring the project. He restated t:at this is a residential use only. He stated that Dr. Kim will speak regarding the program. Chair Wehrenberg asked Ms. Faubion to address if the Applicant is legally responsible to be here. Ms. Faubion answered that the Fair Housing Act provides protection for various groups including protection based on familial status. She stated th,e intent is so that families with Panning Commission January 13, 2009 ftgufarWeeting 6 children are not discriminated against. In this case, the Applicant believes they are covered by the FFHA but they have also agreed to participate in CUP process and be subject to the Conditions of Approval. She continued that unless there is a change to the Applicant's position the City can continue with the permit process as a land use permit for a boarding house and the Applicant has indicated their willingness to be part of the process. Cm. Swalwell asked what the City's legal recourse is to challenge their interpretation of their familial status under the FFHA if the Applicant chooses not to participate with the CUP process. Ms. Faubion answered that if the Applicant is intending to change their position and to assert a familial status that they are not subject to the CUP requirements, then they should notify the City and the City can determine their options at that point, but that is not what the Applicant has indicated. Cm. Swalwell asked if the City would have to consider seeking an injunction. Ms. Faubion stated that if that were the situation then the City would have to consider their options at that point. She continued the City has not done that because the Applicant has been cooperative and invested in the CUP process. Chair Wehrenberg stated that this discussion is based on information the Planning Commission received today (1.13.09) and they can consider the information or postpone the item to another meeting. Dongho Kim, CEO of Iroonet America spoke in favor of the project. He stated that Iroonet America is a California corporation owned by another company located in Korea. Iroonet is a publicly traded company in Korea with over 1,000 tutoring facilities there. He stated the Korea company focuses on tutoring and education and the Iroonet America focuses on taking care of children who come from Korea to attend school in the United States. He spoke regarding the number of facilities in the U.S. and the ages of the children. F le stated the children all have F1 student visas and attend private schools. He continued that the caretakers reside at the facilities, and the children have the usual daily schedule of American children. He spoke regarding the requirements for entrance into the program and the contract with the parents. The caretakers are considered legal guardians while the children are in the states. He stated the caretakers communicate with the parent's daily, providing reports to the parents via the web. He stated the company has very high standards and a code of conduct. He continued that they do not allow children to drive in America. He restated the children participate in community service and sports activities on the weekends. He felt their group was like a family because the caretakers act as parents to the children in their care. Chair Wehrenberg asked if Mr. Kim had any additional information that was not in the letter from Mr. Doyle that he would like to share with the Commission. Mr. Kim restated that the children go to school in Dublin and other locations in the area, they go to a tutoring facility in Pleasanton after school, and then come home at approximately 8:00p.m. or 9:00p.m. Chair Wehrenberg asked what type of restrictions are in place for the children to keep them from sneaking out, etc. when the caretaker lives in the exterior of the house. Planning Commission January 13, 2009 fggularWeeting 7 Dr. Kim stated the caretakers live inside of the house with the children. Chair Wehrenberg stated that on the plans submitted the caretakers are shown to be in a separate unit outside the main house. Dr. Kim stated it's in the same facility which is the same household. Cm. Schaub asked the Applicant to explain where everyone sleeps. Mr. Doyle answered the house has 7 bedrooms, there is a casita on the property and the 2 caretakers live in the casita and the children sleep in the main house. Cm. Schaub felt the casita was too small for two adults to live there. Mr. Doyle stated that there are 2 people per bedroom. Cm. Schaub asked about the number of people accounted for and the number of people in the application. He stated the application indicates there are 2 caretakers, 2 children and 12 boarders and did not feel that many people would fit in the house. Mr. Doyle answered there are 7 bedrooms in the home, there:=ore, the application was written for 2 people per bedroom for a total of 14 people. He stated they are not interested in having 16 people live on-site. Under the definition of a boarding house, the children of the caretakers do not count towards the number of people living in the home. The confusion came from one of the caretakers who has two of her children living in the home, but if the application is approved they will not live there any longer. Mr. Doyle restated that there will not be 16 people living in the home. Cm. Schaub asked about the children of the caretaker. Mr. Doyle answered that the current caretaker's husband lives in Dublin and the children go back and forth between the houses. He stated that the application should only state 14 people living in the house, not 16. Cm. Schaub stated that the Commission must make findings and part of that is safety, and he would appreciate knowing exactly how many people would be living in the house. Mr. Doyle stated the application is for 12 kids, and 2 caretakers and the caretaker's children are not in this application because it is not approved as yet. He continued that the reason the number of 16 people came up was because of a building issue, but he stated it was not applicable to their situation because the CC&Rs allow a family of 14 people to live there. Chair Wehrenberg asked since the caretakers are living in the casita, which is detached from the main house, has the Applicant installed a security system where alarms would go off if the children tried to go out after hours. Mr. Doyle answered a security system with alarms and cameras are installed in the house. Mr. Doyle mentioned that if the code of conduct is violated the child would be out of the program. Cm. King asked if the Applicant would agree to make the code of conduct part of the Conditions of Approval. Mr. Doyle answered yes. Pr4nning Commission January 13, 2009 4?fgularWeeting 8 Chair Wehrenberg asked if there is a plan in place for a medical emergency if one caretaker must leave the premises who would care for the other children. Mr. Doyle answered that the policy is to have a caretaker on site at all times. He continued that if there is a medical emergency the older children can watch the younger children. Cm. King asked what schools the children attend. Mr. Doyle answered Redwood Christian, Quarry Lane, Valley Christian, and Athenian. Cm. King asked what kind of transportation is used to take the children to and from school. He stated that one of the letters raised a point that the Conditions of Approval do not allow the children to drive but what would restrict them from having their friends pick them up in vehicles. He continued this was a concern from a neighbor and he felt that it was a realistic concern. He asked if the Applicant would be willing to add the condition that the boarders cannot use private vel-dcles other than those driven by members of the staff. Dr. Kim answered that the Iroonet policy does not allow the children to ride with friends. He stated he is willing to add that to the Conditions of Approval. Chair Wehrenberg asked Mr. Doyle to confirm that there will be one caretaker on site 24/7. Mr. Doyle answered yes except in the rare instance of an emergency where the other caretaker is not available, and then the older children would be responsible for the younger children. Cm. Schaub felt this is an intense use of a house. He was also concerned regarding an emergency plan in case of a fire or earthquake. He felt that safety is very important and understood it was not exactly a land use issue. Dr. Kim stated they routinely have fire drills, and all the rooms have escape ladders that hang outside the window. Chair Wehrenberg asked if the ladders are stored in the roonLs and are easily accessible. She asked how often they have fire drills. Dr. Kim stated they have fire drills every semester but was not certain. Chair Wehrenberg asked what they consider a semester. Mr. Kim answered the semester is twice a year. Cm. Swalwell felt that education is important and appreciated what the company was offering the children. He asked if there were any events planned at the house with friends, such as sleep-over's, events, or parties. Dr. Kim stated there have been no sleepovers. Cm. Swalwell asked if they had considered other locations not zoned residential, such as an Extended Stay America Hotel in a commercial area. Dr. Kim answered that the other three locations are catholic convents that they are renting. He continued that they also rent a former nursing home. He stated this is the first time the company has used a single family residence for this purpose. Cm. Swalwell asked if the Applicant had any other applications for other locations in Dublin and if so where. Dr. Kim answered yes, at 4718 New Haven. Cm. Swalwell asked how many Tranning Commission Yanuary 13, 2009 WsgufarWeeting 9 people would be living in that home. Mr. Doyle stated it was a 5 bedroom home where they would have two people to each bedroom for a total of 10 people. Cm. Swalwell asked if there were any other applications for thE' future. Mr. Doyle answered no. Cm. Swalwell asked if there was a curfew for the children. Mr. Doyle answered yes. Mr. Doyle referred to a question regarding licensing. He stated that under California Care Licensing this type of facility is not subject to community care licensing. Also, there was a call made to community care licensing to report the facility and it was confirmed at that time that the project is not subject to community care licensing due to the fact that the parents have given permission for the children to live in the United States with the caretakers. Chair Wehrenberg asked if they were under foreign exchange requirements. Mr. Doyle stated he is not aware of any foreign exchange requirements and that during their due diligence they contacted community care licensing and were told none was required. Chair Wehrenberg stated she would pass along to Staff the CA Government Code of Regulations for their information. Chair Wehrenberg asked if Dr. Kim is the owner of the house. Dr. Kim answered that the house is owned by Iroonet America, Inc. Cm. King stated that one concern to most neighborhoods is parking, and mentioned a letter from Ms. Hayes that suggested that they be required to keep the garage clear of personal property to permit maximum vehicle parking. Dr. Kim stated that the garage is clean and can be used for parking and agreed to add that condition if needed. Mr. Baker referred to the Condition of Approval #11 regarding parking the vehicles in the garage and the driveway. Cm. King suggested adding a condition that states that at least one caretaker shall be on the premises at all times. Dr. Kim stated that company policy is that at least one caretaker should be on premises at all times. Cm. King felt the Applicant was asking a lot of the neighbors to have that many teenage boys living in one place and felt they are alarmed by this. He felt the neighbors are concerned about noise and unruly behavior. He stated that another suggested condition was to bring the project back to the Commission in 6 months to review the situation. Mr. Doyle agreed with a review in 6 months. Chair Wehrenberg felt the community meeting with neighbors is a good idea so that the neighbors can meet the children. She felt that the project adds diversity to the community. Planning Commission `fanuafy 13, 2009 4?sgularWeeting 10 Mr. Doyle stated the program is intended to expose the children to American culture and become involved. He continued that when the children corle to the U.S. for school in this program they are not a foreigner in an American home, but stay with children of similar backgrounds. Chair Wehrenberg asked how successful the program is in -:he U.S. as far as complaints or problems. Dr. Kim stated the company has been in operation for 5 years, and during that time they have sent 7 students to colleges and 10 students to boarding schools. He mentioned the colleges that the students were accepted into. He continued that Dublin is the first and only place where there have been complaints. Cm. Swalwell stated that Dublin is also the first place that the company has had a facility in a residential neighborhood. Dr. Kim agreed. Mr. Jerry Owens, 5405 Blackstone Road, spoke in opposition to the project. He agreed with Cm. King that the application is an intense use for a single family residence. He felt this was a company designed to make a profit and should not be allowed to operate within a residential district. He asked how they started the business without a permit. He stated there are no other boarding houses in Dublin and felt that if the project is approved there will be more boarding houses. Chair Wehrenberg answered that this is the first boarding house the Commission has reviewed and they could set a precedent. She continued that one of the neighbors noticed a lot of traffic and reported it to the City, and now the Commission is reviewing this issue to be resolved so that the Applicant will conform to City policy. Mr. Owens asked if this is the only Iroonet facility within the City of Dublin, and if there are others do they have permits for them. Cm. Swalwell asked Staff if the City has accepted that this is a boarding house under the law and is not a business. He asked if there is a distinction between a boarding house for-profit and not-for-profit. Ms. Faubion answered that the City has determined it is a boarding house under their zoning ordinance. Cm. Swalwell asked if the fact that this is a publicly traded company would affect the City's analysis and what would be the difference between this project and Extended Stay America. Ms. Faubion answered the distinguishing characteristics are that at an Extended Stay America or any clearly commercial operation, different people come and go with no overall organizing agency. She felt that the boarding house is managed as a unit, and the boarders are not free to come and go on a temporary basis, but are there for an extended period of time. Cm. Schaub stated that in Mr. Doyle's letter it mentions the City's definition as "one or more persons occupying the dwelling and living together as a single non-profit housekeeping unit." He felt that this is a corporation not a non-profit housekeeping unit. Planning Commission January 13, 2009 Tsgular9Weeting 11 Ms. Faubion stated that the text that Cm. Schaub read was in reference to the Federal Housing Act discussion in Mr. Doyle's letter. She continued that in reacting the City's Zoning Ordinance family is defined as "one or more persons occupying a dwelling and living as a single non-profit, housekeeping unit as distinguished from a group occupying a hotel, club, fraternity, etc. and a family includes any servants and 4 or fezver boarders." In reviewing the application Staff has indicated that this is not a family according to the City's Zoning Ordinance. 'Che Application is for a boarding house which requires a Conditional Use Permit. She continued that if they clearly fell within the definition of a family they would not require any discretionary permits. Cm. King asked if it would be correct to assume that this is a for-profit corporation. Mr. Doyle stated the corporation is not a non-profit organization. Kim and Jerry DiMaggio, 3615 Oakhurst Court, did not speak Lut are opposed to the project. Laura Donaldson, 5501 Applegate Court, did not speak but is opposed to the project. Albert and Nitza Daniel, 3726 Ferncroft Court, did not speak but are opposed to the project. Eric Brumn, 3727 Ferncroft Court spoke in opposition to the project. He stated he did not receive a notice. He stated he was confused regarding the number of children in the house and wondered why the caretakers stay outside the main house and how many caretakers stay in the casita at one time. He agreed with Mr. Owens that this is a for-profit corporation. He asked if the permit had been granted or did the Applicant open the house without a permit. He was concerned with the number of students and the size of the house. He asked how long the students stay on average. He stated that he bought his house in a residential community and was not expecting a corporation to be next door. He stated that he and a number of his neighbors are not comfortable with the situation. Stephanie Hayes, Attorney at Law, 1600 So. Main Street, Walnut Creek, representing the Dublin Ranch Owners' Association spoke in opposition to the project. She stated the HOA has extreme concerns regarding the application. She stated some of the issues have been addressed regarding parking, traffic, noise and nuisance which are their four top concerns. She commended the Applicant and Staff for finding ways to dear. with detrimental effects on the community but they did not go far enough. She felt the conditions will not support findings in favor of the CUP. She wanted to make it clear that the Association is not objecting to the foreign exchange students or diversity in community. She stated the concerns expressed to the Commission are based on actual complaints of additional parking and traffic problems, noise and nuisance. She stated that it is the HOA's strong request that the application be denied but if the Commission approves it they would ask for the inclusion of the conditions stated in her letter. Cm. King asked Ms. Hayes to identify the findings that she believes the Commission cannot make. Planning Commission January 13, 2009 ftgnfarWeeting 12 Ms. Hayes stated that in her letter she made reference to findings A, B & C which would not be supported by the conditions. She stated the main concern is Finding #B "it will not adversely affect the health or safety of persons residing or working in the vicinity..." Cm. Schaub asked her why she felt that the conditions would :lot support the findings. He felt that the finding had nothing to do with traffic that she mentioned earlier. Ms. Hayes answered as far as the nuisance and noise issues are concerned she believed that they do affect the health and safety of persons residing in the area. Cm. Schaub asked if she felt the noise is related to health and safety. Ms. Hayes stated she did. Cm. King asked Staff if the word "nuisance" arises does the Co::nmission have to make a finding that the project would not create a nuisance in the neighborhood. Ms. Hayes continued that with health issues, increased traffic causing more likelihood of accidents. Cm. King asked Ms. Hayes if there is a history of specific complaints and how they were resolved. Ms. Hayes answered that one complaint is attached to the Staff Report which is a letter from Ms. Berschens who was concerned about traffic and safety. She felt there might be other people in the audience that could be more specific. John Bakker, 2427 Otis Drive, Alameda, former principal of Redwood Christian High School, now working as Director of Foreign Ministry there, spoke in favor of the project and the character of the children. Kasey Chung, 3604 Oakhurst Ct., spoke regarding the project. She felt she would be affected the most because she lives next door to the project. She st2.ted she was confused as to the number of people that will be living in the house, the number of caretakers, and the number of cars allowed. She asked what the process would be if the Applicants do not comply with the Conditions of Approval and how difficult it will be to revoke the permit. Chair Wehrenberg answered that depending on what action the Commission takes, she would have an opportunity to appeal that action to the City Council. She continued that if the CUP is approved and the Applicant breaks the Conditions of Approval then there is a process for that also. Ms. Chung asked what the process is. Mr. Baker answered that through a Code Enforcement action, if there is a violation of their Conditions of Approval, a Public Hearing would be held before the Planning Commission to determine the violation, and then possibly revoke the Conditional Use Permit. Chair Wehrenberg asked Ms. Chung what the situation has been in the last couple of months living next to the project. Ms. Chung answered that she is not the best person to answer because she has two very active daughters and is not home un-al late in the evening. She stated she was not aware of the project until she noticed some cars parked in front of her house. She PPfanning Commission 7anuary 13, 2009 fgufar Meeting 13 asked the Applicant not to park there and that was the only interaction she had with the Applicant. Paul O'Flynn, 3610 Oakhurst Ct., spoke in opposition to the project. He stated he is concerned with the number of children and the inordinate amount of traffic. He felt that 14 children would not fit in 2 minivans so there would be multiple trips which was the case last year. He approves of the bi-annual review's, but was concerned about the process for complaints if they violate the conditions. Cm. King asked Mr. O'Flynn to be more specific with his comment about the inordinate amount of traffic. Mr. O'Flynn answered that last year there were more children living there, multiple tutors, and many cars at one time. Cm. King stated that the Commission will need to know specifics because the Applicant is representing to the Commission that there will be minimal traffic. He asked Mr. O'Flynn if he knew whose cars they were. Mr. O'Flynn stated that last year there were 4 tutors' cars in addition to all the other cars and the 2 minivans. Chair Wehrenberg stated that since Code Enforcement has slepped in they have made some revisions and eliminated a lot of the traffic. Mr. O'Flynn agreed that there has not been a problem lately with traffic. Chair Wehrenberg closed the public hearing. Chair Wehrenberg asked the Commission to discuss the application and consider if it need's to be continued because there are additional conditions that need to be addressed. Cm. Schaub stated he felt the program is fantastic. He was concerned with 16 people living in a house that was approved as a single family residence. He felt there was one room that could not be considered a bedroom because it has no closet. He felt this project looked like an apartment building in a low density, single unit, which was not what the Planning Commission approved, nor what the residents wanted. He continued he cculd not make the findings that it would be safe in an emergency. He was not concerned about circulation, i.e., traffic or parking, but was concerned about compatibility, and felt the facility is more like a commercial apartment instead of low density residential. He stated he could not make the findings that this is an appropriate use therefore he could not support the project. Cm. King stated that whatever decision the Planning Commission makes does not have anything to do with the homeowners rights under their CC&Rs. He asked if the City is taking the position that the CUP process is required for this project. Ms. Faubion answered yes the CUP process is required for this project. Planning Commission January 13, 2009 fgufar Meeting 14 Cm. King asked to clarify that this area was zoned to include a boarding house before the development was built. Ms. Karaboghosian answered the Planned Development that was approved for the subdivision identifies a boarding house as a Conditional Use. Cm. King asked Staff to read the City's definition of a boarding house. Mr. Baker read the definition of a boarding house from the City of Dublin Zoning Ordinance. Cm. King stated just because the project meets the definition doesn t mean it should be approved. He continued that the Commission still must make the findings that it will not create a nuisance by means of safety or noise. Mr. Baker answered Cm. King was correct. Cm. King agreed with Cm. Schaub that the project does not seem appropriate for a residential neighborhood. There was a discussion regarding the number of bedrooms and the fact that one of the bedrooms does not have a closet and what the building codE' states regarding the number of people that may occupy the house. Cm. Schaub felt that the Applicant added a bedroom to accommodate the for-profit business. He also concluded that the house had been restructured and now exceeds what was allowed in the Site Development Review. Ms. Ram answered that people do make modifications to their homes which changes the number of bedrooms. Mr. Shreeve discussed the definition of a bedroom according to the California Building Code and how many people are allowed to live in the home. Cm. Swalwell asked if the findings regarding the safety issue is for the persons residing in the house or for the persons residing; in the vicinity of the house. Cm. Schaub answered that the Commission always takes into consideration the safety of the people inside the building. Cm. Schaub felt that the amount of usable space for each occupant is not safe. He calculated the usable space at 125 square feet per person. Ms. Faubion responded the safety that the Commission must consider is people residing in the vicinity of the project. She felt the finding affects both the people residing in the home and in the vicinity. She continued that the safety of the structure is a building code issue and less an issue of this finding. The discussion continued regarding the findings of safety and the site, design and intensity of the use. Chair Wehrenberg stated that in the Conditions of Approval the Applicant must install smoke detectors and the City inspects them prior to approving the building permit. Planning Commission Yanuafy 13, 2009 WsgularWeeting 15 Mr. Shreeve stated that the existing bedrooms have already been inspected as part of the final inspection of the house. He continued that for any new bedrooms that were added the inspection would be under the new permit. He stated the project would require a building permit be obtained and inspections completed on the interior of the project because they are reducing the occupancy load of the house. Mr. Shreeve noted that the final inspection was done for the building permit to add the interior walls on 1-13-09 and was passed. Cm. Swalwell thanked Staff and the Applicant for their presentation. He felt it was important to put feelings aside and limit the purpose to meet findings. lie approved of the program and felt it has worked well in other locations, but noted they were not in single family residences. He felt the project did not meet findings A, B, C, or F. He is very concerned about the caretakers living in the casita with no supervision inside the home, as well as the number of persons in the house. He felt the other issues have been addressed. He stated that other homeowners would have to disclose that there is a boarding house in the neighborhood and that could adversely affect the sale of homes in the area. He did not feel he could make the findings for E or F and felt this is a for-profit business being operated in a residential neighborhood which is an inappropriate use. Chair Wehrenberg stated that Cm. Swalwell was reading spe-cifically from the letter from the Dublin Ranch Owner's Association attorney, Ms. Hayes versus the City of Dublin findings. Mr. Baker stated the findings do match the City of Dublin findings which are Attachment 2 which lists the findings. Chair Wehrenberg felt the presentation was confusing but felt the Commission could condition the project so that it would work for the Applicant. She proposed adding additional conditions to the CUP. She felt she could agree with most of the findings except for adverse land use. She suggested taking a vote to understand where the Commission stands. She explained that if there was a tie then the project would be denied. Cm. King felt that a boarding house is allowed and a foreseeable use due to the zoning ordinance, but was unsure if a boarding house of this size is suitable. He agreed that Finding E was difficult to make regarding being compatible with type, density and intensity of the use. He felt parking will not be a problem, but felt noise could be a problem. He felt the project is too intense for the area. He stated he would not support the project. Chair Wehrenberg felt the Commission agreed that it was an intense use. She stated that the proposal is for 12 children and 2 caretakers and the code says the home is capable of housing up to 16 people. She asked the Commission if they felt the project: would be appropriate, but with fewer boarders. Cm. King agreed. Planning Commission January 13, 2009 fgurar Meeting 16 Cm. Schaub stated he would support five boarders only. He felt this was not what the neighborhood was designed for and it was not appropriate for the neighborhood. Chair Wehrenberg was concerned with the caretakers being outside the house and agreed with Cm. Swalwell that they belong inside the house and felt it is pa:°t of the safety issue. Cm. Swalwell asked for an explanation of the definition of a boarding house according to the FHA and the City of Dublin's Zoning Ordinance regarding the for-profit versus non-profit. Ms. Faubion stated that under the City's Zoning Ordinance this proposal is not a family therefore it is not an issue for purposes of a boarding house permit. Cm. King stated Cm. Swalwell asked if the definition of the boarding house make the distinction between for profit and. non-profit. Ms. Faubion stated that it did not. There was a discussion regarding; a boarding house being allowed in the area according to the City of Dublin's Zoning Ordinance. Cm. Schaub felt the Commission needs to discuss this subject further and suggested that they not approve the project at this time, but learn more and spend time discussing the issue before they set a precedent for boarding houses of this type. Ms. Ram stated the Commission has a few alternatives; they could make a motion for a number of occupants slightly less than what was proposed if the Commission feels they can make the findings. If that is the not the only issue then the Commission can make a motion to deny it based on the reasons listed. She stated that the Commission could come back at the next meeting with a denial which she would like Staff to craft for a future meeting on Consent. She continued that if the Commission denies the project based on the discussion, the Commission could recommend denial without prejudice, so that the Applice nt can work with Staff and come back with an acceptable project. She explained that if the Commission does not deny without prejudice the Applicant cannot reapply for one year. She also Suggested a study session to talk about boarding houses in general. Chair Wehrenberg felt the Commission was all in agreement that the project would be acceptable if they can reduce the number of people living in the house. She felt there were good conditions offered that she would like to have staff review and revisit. She listed some of the conditions that could be added such as, community meetings, 6-month review of the site, and Code Enforcement review. There was a discussion regarding the "denial without prejudice" and whether it is appealable to the City Council. Ms. Ram asked the Commission to give Staff direction regarding their agreement of the changes to the Conditions of Approval for the project. Cm. Schaub suggested the project be denied without prejudice and then the Commission should hold a study session to discuss the subject further. Tranning Commission ,7anuary 13, 2009 WsgurarWeeting 17 Cm. Swalwell noted that once the precedent is set then it could be a way for residents to make extra money in the current economy. Cm. King asked if there are findings that the Commission can rlake. Cm. Schaub stated he had no problem with circulation, but could not support compatibility, purpose of use, or structures. He felt the project could not support the number of occupants with residential appliances and the project is conditioned to prohibit commercial appliances. He felt there was also the issue of water and sewage. Cm. King felt that he could not make any of the findings therefore could not approve the project. Chair Wehrenberg asked what would happen to the current operation of the project. Mr. Baker answered that the Applicant would have to comply with the current zoning regulations of 5 boarders only. Cm. King asked if they are in compliance now. Mr. Baker stated they are in compliance. Cm. Schaub made a motion to deny without prejudice due to the fact that the Commission cannot make any findings. Then schedule within the next months a study session regarding boarding houses within Dublin which would be open to the public for their participation. On a motion by Cm. Schaub and seconded by Cm. Swalwell1, on a vote of 4-0, the Planning Commission continued the item to the Planning Commission meeting scheduled for January 27, 2009 and directed Staff to prepare a Resolution to deny the project without prejudice. Mr. Baker pointed out that the item will have the findings revised and will be brought back to the Commission as a Consent Calendar item at the next Planning Commission meeting on January 27, 2009, and then there is a 10 day appeal period on the decision of denial after the meeting where the action will be taken. 8.2 PA 08-032 Edge Gymnastics Training Center Conditional Use Permit (Adjudicatory) to operate an Indoor Recreational Facility in the Light Industrial (M-1) Zoning District. Laura Karaboghosian, Associate Planner presented the project as stated in the Staff Report. Chair Wehrenberg asked to confirm that the Applicant is Rachel Okmin. Ms. Karaboghosian answered that she was identified as the Applicant on the application, but the primary contact has been Rob Kadish who was also identified on the application. Planning Commission January 13, 2009 ?kegularWeeting 18 Chair Wehrenberg opened the public hearing. David Gold, Land Use Attorney, father of gymnast, spoke in favor of the project. He urged the Commission to support the Applicant's Conditional Use Permi-= for the project. Chair Wehrenberg asked Mr. Gold if he is legal representative of Edge Gymnastics. Mr. Gold answered no but he is a spokesperson for Mr. Kadish, the primary contact for the project. He stated that Edge Gymnastics has agreed to the Conditions of Approval as recommended by Staff. He explained the quality of the program and how it will affect Dublin. Cm. King asked about the traffic circulation for the site. Mr. Gold suggested Mr. Morelan could answer the question more effectively. Jim Morelan, Architect, San Jose, spoke regarding the site plan. Cm. King asked Mr. Morelan to indicate where the access to the project would be located for parents picking up and dropping off children. Mr. Morelan indicated on the slide how the access works. He stated that with the current tenant mix there are very few cars and he does not anticipate a lot of congestion. Cm. Swalwell asked how this project would impact the Crosswinds Church which is close by. Mr. Morelan stated the church is located down the street and they do not anticipate any impacts at all. Cm. Swalwell asked if there would be any events on Sunday mornings. Mr. Gold answered there would be meets 4 times a year only, otherwise no operations on Sundays. Mr. Morelan pointed out the vicinity map which shows where the project is located and it's proximity to the church. Cm. Schaub asked Mr. Gold regarding the conditions of notifying the City regarding special events. He suggested that they also notify the other tenants during the same period of time. He also suggested that the condition that mentions loudspeakers outside and suggested that they also make sure that the music level is appropriate so as not to disturb their neighbors. Chair Wehrenberg asked Mr. Gold if they have agreed to abide by the Conditions of Approval. Mr. Gold stated that they have agreed to abide by the conditions and agreed with notifying the other tenants in the warehouse at the same time as the 14 day notice to the City. Mr. Baker asked if Cm. Schaub meant to notify all the tenants in the building or only the tenants that share a common wall. Cm. Schaub stated they should noti=y all the tenants. Mr. Morelan stated the party walls are one hour constructed with reasonable sound insulation and the outside walls are concrete. Planning Commission January 13, 2009 Wygurar Meeting 19 Mr. Gold agreed with the condition. Kristen Schrader, 6780 Sierra Court, Suite K, was in favor of the project, wished to speak but did not. Randy Clegg, 1153 Via de Salerno, Pleasanton, spoke in opposition to the project. He stated he is the step-father of one of the victims of the last gymnastics program that the Shawlers were involved with. He stated he is not opposed to the gym, but is opposed to certain people being involved with the gym. He mentioned the charges against: the Shawlers and suggested a condition that be required to install a 2X3 foot poster with his F icture on it. Ms. Faubion stated that this is a land use hearing on a land use issue, there were names mentioned by the previous speaker regarding a gentleman not believed to be related to the operation of the proposed gymnasium. She recommended to the Planning Commission that they focus on the land use impact of having a gymnastics facility at this location. She continued that the Staff Report identifies relevant issues to the land us,' permit and that should be the proper focus of the Planning Commission. Chair Wehrenberg stated that the Commission cannot add any conditions regarding the issue mentioned by Mr. Clegg. She continued that this is strictly a land use hearing and the person referred to is not the Applicant. Cm. King asked if there is another step in the process where this issue can be addressed. Ms. Faubion answered that this issue is not appropriate to be addressed in this context. Cm. King asked if there is some other context where this person could raise the issue. Ms. Faubion felt that from the speaker's comments this issue had been addressed in the appropriate context. Cm. Swalwell referred to the speaker who mentioned that the Shawlers were charged and asked if Staff was aware if only Robert Shawler was charged and convicted or was Ms. Shawler involved in any allegations or arrests. Ms. Faubion stated Sgt. Ellis Craft, Alameda County Sheriff's office, Dublin Police Services, is here to respond to those questions. Sgt. Craft answered that Mrs. Shawler was not charged. He stated that on behalf of the Commander of Dublin Police Services, Gary Thuman, they are very concerned regarding this issue because Mrs. Shawler works in this facility and they worked together in the previous facility. Cm. Swalwell asked if Sgt. Craft is aware of Mr. Shawler's 290 registration status. Sgt. Craft answered he was not certain of Mr. Shawler's 290 status but was sure he was not allowed to be around children under the age of 16 unsupervised. He was not sure if it included being restricted from schools. Tranning Commission January 13, 2009 qi?egurar_Veeting 20 Cm. Swalwell asked Staff if the gym is designated as a school under the 290 requirements which indicate what a school is and who is prohibited from being near those schools. Ms. Faubion was not sure what the answer to the question is but for the purposes of the zoning ordinance this is not considered a school, it is considered an indoor recreation facility. Cm. Swalwell asked if Mr. Shawler was involved with this gym in any way, would he be a concern to the police. Sgt. Ellis answered he felt there is always a potential for the person to be at the facility. Cm. Swalwell asked if there had been any complaints of him being at the location. Sgt. Ellis stated there had been an unsubstantiated c :aim that Mr. Shawler was at the facility but that could not be confirmed. Kathy Estoll, 3281 Burgundy Drive, Pleasanton, did not with to speak but opposed to the item. Jerod Pimentel, 1547 E. Grantline Road, Livermore, wished to speak in favor of the item but did not. Jeff Main, 1207 Whispering Oaks Dr., Blackhawk, is opposed to the item but did not wish to speak. Carmen Pfluger, 65 Wild Oak Place, Danville, spoke in favor of the item. Chair Wehrenberg asked Mr. Gold if he would like the opportunity to speak on the item again. Mr. Gold felt that the comments made regarding the individual were inappropriate and supported the advice of the City Attorney regarding this being a Conditional Use Permit, land use item. He felt it was inappropriate for the police department to speculate on issues that are not related to items before the Planning Commission. He urged the Commission to approve the Conditional Use Permit. He stated that the parents, investors and community members would act if there was a problem or a perceived problem. He stated that the person has never been to Diablo Gymnastics or Edge Gymnastics. Cm. Swalwell responded to Mr. Gold that one of the findings is the safety of the persons in the vicinity and if it was represented that they were involved in wrong-doing it is the responsibility of the Commission to find out from the police department what the truth is. He stated that it was confirmed that only one person was charged and that was not the person affiliated with the gym. He felt the Commission has a responsibility to know the situation. Chair Wehrenberg closed the public hearing. Chair Wehrenberg felt the information brought to them by Mr. Clegg is not relevant to the item and should not be discussed. Cm. King felt that the Commission had a duty to do due diligence by probing questions to make sure that it had no bearing on the land use issue. He stated he has no problem with the project. Cm. Schaub stated he has no problem with the project. Cm. Swalwell was in support of the project. Tfanning Commission Yanuary 13, 2009 fgurarWeeting 21 Chair Wehrenberg stated she was in support of the project. She stated they should take into consideration Cm. Schaub's suggestion to change condition #15 and #19. Modify Condition #15: The Applicant shall notify the Planning Division and all tenants within the building, in writing, of upcoming special events. Modify Condition #19: The Applicant shall monitor loud speaker noise and it's impact on adjacent tenants. On a motion by Cm. Schaub and seconded by Cm. King, on a vote of 4-0, the Planning Commission approved the following with modifications to the conditions: RESOLUTION NO. 09-02 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF DUBLIN APPROVING A REQUEST FOR A CONDITIONAL USE PERMIT TO OPERATE AN INDOOR RECREATIONAL FACILITY IN THE LIGHT INDUSTRIAL (M-1) ZONING DISTRICT AT 6780 SIERRA COURT UNITS K & L (APN 941-0205-038) PA 08-032 NEW OR UNFINISHED BUSINESS - Mr. Baker reminded the Commission of mandatory Ethics Training scheduled for Monday, February 2, 2009 from 6-8pm in the City Council Chambers. He also informed the Commission that the League California Cities Planners Institute is scheduled for March 25 through March 27 in Anaheim, CA. He stated the City will make travel arrangements and asked them to confirm that they will attend. OTHER BUSINESS - NONE 10.1 Brief INFORMATION ONLY reports from the Planning Commission and/or Staff, including Committee Reports and Reports by the Planning Commission related to meetings attended at City Expense (AB 1234). Cm. King asked if someone from the City could update the Commission on the impact of the financial situation on Planning and the direction the Commission should be going. Ms. Ram answered that the Goals and Objectives meeting with the City Council would be the best place to answer those questions. Tfanning Commission January 13, 2009 &gufarlfeeting 22 ADJOURNMENT - The meeting was adjourned at 10:51 p.m. Respectfully submitted, Doreen Wehrenberg Chair Planning Comm1 ATTEST: Jeff a er Acting Planning Manager G: \ MINUTES ? 2009 ? PLANNING COMMISSION \ 1.13.09.doc Planning Commission January 13, 2009 2tgular Meeting 23