 Okay, I'll call to order the January 17th, 2019 meeting of the City of Santa Cruz Planning Commission, and welcome. Could we have a roll call please? Mr. Singleton, Bellman? Here. Kennedy? Here. Pepping? Present. The CD Miller? Here. Nielsen? Chair Conway? Here. Commissioner Nielsen is absent with notification. Do we have any statements of disqualification this evening? Seeing none, we'll move on to oral communication. This is the part of the agenda where members of the public are invited to address the commission on any matters not on tonight's agenda. Do we have any public communication this evening? Seeing none, we'll move on to the approval of minutes. I move to approve. Second. All those in favor, indicate by, oh, discussion. I was in present. Okay. Nor was I. Okay, noted. Of those present, indicate your approval by saying aye. Aye. Aye. And that's our approved. With that, we'll move on to the first matter, which is the matter of 719 Darwin Street, CP18-017171. Can we hear the staff report? Thank you. Chair Conway, commissioners and members of the audience, this project is at 719 Darwin Street. It's for a demolition authorization permit to demolish a single family dwelling. It involves also a design permit to construct three dwelling units on multiple residential zone property. And it also involves a tentative map as their units are actually condominiums. Before we start going into the project details, I wanted to just go over a little bit of the background for this project. This project would be generally reviewed by the zoning administrator. And it actually, in fact, was reviewed by the zoning administrator in 2007 and approved. The permit expired in 2018, and then the applicants made a resubmittal. But while the project is essentially the same, there's been many factors that have occurred since the 2007 approval. And that is the basis as to why staff's recommendation is actually for denial of the project. So one of the major factors is the general plan policies and density. And since it does involve a policy decision, that is actually why it's before you, the Planning Commission. So with that, I'm going to go ahead and just kind of go over the project details. Go over the staff analysis and then, lastly, go over the Planning Commission actions that can be taken. This is an aerial of the project side, which is towards the center of the slide. It is on the east side, Midtown area. It's about an 8,660 square foot parcel. Towards the north and towards the west is actually the Staff of Life grocery store. In this area is the parking lot for that grocery store. Towards the south and then across the street in this general area are multiple residential properties. And this whole area is on multiple residential, medium density. And it is that portion of Doron Street, and I'm sorry, here's Soquel along here, between Soquel and Galt Street. And towards the center of the slide is the current development, which is a single family dwelling that is proposed for demolition. Towards the left is a two-unit residential project. And then towards the right or towards the north is access to Staff of Life grocery store. Across the street is a single family dwelling. This has actually been recently approved to be four units to duplexes. I'm going to go into more detail about this particular site a little later. Also directly across the street is a recently built 15 unit apartment complex. So going into some of the project details, here's Doron Street. There's a common access driveway, which borders the Staff of Life parking access area. There's two units kind of in a duplex-like arrangement. They do have a shared common wall. And then the last unit, this is a three-unit project, is towards the rear of the property. Also in the property, there's some three mature heritage pine trees. And those are going to be proposed to be retained. Into the floor layout, at the bottom of the slide is the first floor. The two attached units are towards the front of the lot located over here. Each of the units has an attached garage. They also have the main living areas on the first floor. And on the second level, each of the units are two bedrooms. And then there's also, as you can see here, a common study area. But study areas for each of the units, the standalone units located over here. So the size of the units ranges from 1500 to about 1650 square feet. So these are the elevations. This is the view from Darwin Street. The lower portion of the left of the slide is actually the view from the common driveway. And then this would be the view from the end of the driveway. Both, all of the units do have a mixture of materials. It is a combination of stucco and bourdon bat on the second level. There's a variety of architectural detail and features. There's porches, fireplaces, bay windows, and insets. Overall, the design will complement the area and provides consistency with the development in the area. So as noted, this project was approved in 2007. And for the most part, all the site regulations, setbacks, building height, open space have all been met. However, again, there's been several changes that have occurred since 2007, which has led to the staff's recommendation of denial. And so right now, I just want to go over some of those factors. One of the first factors was when the project was first reviewed in 2007, the city and the ordinance required a variance for any lot that was less than 65 feet in width and proposed two or more units. This particular lot was 60 feet in width. The city not seeing that much development and having a lot of these infill type of lots that were this size in terms of lot width, amended the ordinance to eliminate this. And that was basically because they found it was a deterrent to development. Another factor and what's shown here is the general plan policies. And they're very similar in terms of maximizing land use densities on multiple residential sites. But if you'll see in 2019, there's a great emphasis on achieving the higher density of the general plan. Another factor that led to staff's recommendation is that by and large, this particular site is an ideal site for an increase in density. On this upper area, this kind of brown striped area, it's our mixed use high density zone district. Here's the subject site, it is adjacent to this area. It is the subject site is close to commercial properties. It's in an area that is also a great transition to the multiple residential areas. And also just in terms of this location, it's close to transit, library, shopping, and other services. But just going over just a little bit more of an aerial to see, this whole area is higher density. This area over here is a 37 unit senior housing project. Closer towards this area is actually a high density zoned area. And we have library lane located over here. And as I alluded to, there's the properties that are directly across the site, which are located right here. This is actually showing before the development of the 15 unit apartment complex. And then the site that I reference as being the recently approved as the four unit duplex. So again, directly across the street are these two properties. The duplex towards the left, and then they actually constructed 15 unit apartment building. So of the note, and since 2007, these projects and properties have been developed. And in terms of density, they are at the higher end of the general plan density. And just to kind of go over, I'm hoping to have a little bit clarified on this table. So right now, 719 Darwin is proposing three units. In terms of the density range, which is 20 to 30 units. The Darwin project comes out at 15 Wall-Eunice Breaker, which as you can see is under the 20, which is 20.1, which is at the low end of our density range. And in the staff report, we kind of went over, if they were just clearly on an unconstrained lot. If we were to go strictly by the zoning designation of 1,450 square feet for a multi or two plus bedroom type of unit, they could actually get six units. And then if they were to do studio one bedroom, which is not being proposed, eight units. In terms of, as mentioned, the surrounding property, the 724 Darwin, which is the four units, which are three bedroom duplexes. They hit the density range at 27 dwelling units per acre. And then the 15 unit apartment complex, they're hitting it at 33 dwelling units per acre. So again, both of these are at the high end of the density range, which is consistent with what the general plan policies and direction is going towards. So in summary, based on those factors, based on, even though we did approve it in 2007, it's been 11 years and there's been several changes. I think the main thing, there's been ordinance changes, the recent construction. And again, we're in the middle of a major housing crisis that not only affects the city, but also statewide. So in terms of our recommendation, that is the basis is why we're recommending denial. The project at three units is under density. And as kind of included in the staff report is the main general plan policies that support actually our recommendation. The Planning Commission could approve this as a three unit project. Again, it was approved in 2007, but the current general plan policies and direction that the city's going towards, we're not able to find a policy to support. It actually being three units, which is again under the general plan density. If you were to go that direction, we would need assistance in finding which policies would be applicable. And then the other direction that the Planning Commission could take would be to continue this for redesign. With this, the property owner hasn't completely ruled it out. But we would probably, and they would probably would like to have some direction as to the number of units. That would be something that the commission could support. So with that, the animal staff report available for any questions. Great, thank you for that report. Do commissioners have questions of staff at this time? One question. Can you clarify, so the general plan guideline for density in this area is the 20 to 30 units per acre. Does our zoning ordinance not meet that? Are we deficient in recommending those densities? Well, with this project at three units, yes, it doesn't meet that. And I think the other thing that we're looking at, especially in terms of direction, is adjacent to the mixed use high density. And so this is an ideal transition property. So you see the two projects that are on the opposite side of the street that we recently approved is definitely at the higher end, the 15 unit apartment complex was actually at 33. So I guess my rephrasing my question. So if I'm looking at the RM zoning code, right, and it says 1450 square feet per unit. You divide the lot area. Do we specify that you need to meet the 20 units per acre? Or you just, it comes out to 5.9 in this case, right? As far as number of units. Which would meet the 20 units per acre. They're proposing three. Is there nothing in the RM zoning ordinance that says, we need to meet that? I'm looking for, where does somebody find that? So there are several places where that can be found. One, let me start with, because the zoning ordinance has a minimum lot area per unit. If you're going under that general plan density, you're going to be meeting that minimum lot area per unit. You just got substantially more. So they're meeting that zoning ordinance criteria. What they're not meeting is there's a finding as part of the design permit that specifies that the decision making body needs to establish that the project as proposed is consistent with the general plan. And to be consistent with the general plan, we look at that density range and other applicable policies. There may be an ability to be flexible outside of that density range if you are conforming with the zoning ordinance requirements and relying on other policies. In this instance, the policies actually state that density is encouraged, one. And two, they're below that range. So at 15 dwelling units per acre, they're substantially below the minimum density range called for in the general plan of 20 to 30 DU per acre. And the general plan policies say you should hit the top end of that range. And so we haven't found any policies that would support the project as proposed. Okay, yeah, that clarifies it for me. Thank you. And then one other question on the options for deny or to submit it for further redesign. What are the differences there? Does the applicant still have the option to go straight to city council? Does one afford that and another doesn't? What are those out of those play out? Right, and I think that's kind of one of the reasons we brought it to the commission for them to also understand kind of which direction, you know, the commission might go. And to see, so if you did a denial as the project as it is, they could just take it right to council without having to do additional changes. But based on the deliberation here, they might want to do the redesign. So that's kind of also why we brought it up to the commission since it was. So my question is, so if we chose the redesign option that are they still allowed to just go to city council or they need to meet the redesign first? They do not have an option to appeal a continuance for redesign to the council. If they wanted to, if they want the option to go to the council, then they would ask that you take action on this item and either recommend or either approve the item and they would be okay with it or deny the item and then they would have the option to bring it to council. If you elect to continue to redesign, then that's not something that they could appeal. You would need a decision in order for them to appeal it. And so that's a question that you should pose. I would recommend that you pose that question to the applicant based on the direction that you feel you're heading. And then the applicants can make that determination as to whether or not they would prefer to look for a redesign with additional units or present the project to the council upon appeal. Thank you. Thank you for that clarification. Any other questions before we hear from the applicant? At this time, I'd like to invite the applicant to address the commission. You'll have 15 minutes. You don't have to use it all. I won't use all the 15 minutes, I promise. This is Tom Thatcher. Good evening. I designed this project back in 2007 as a very young man. And it's strange to be here because if we had designed a six or eight unit project 20 or 30 years ago, we would probably be wanting six or eight units and would be approved at three. But it's kind of things that kind of turned around 180 degrees here as an aside. As the staff report states, we're here because the permit that was issued in 2007 expired last summer. The owner, John Newman, who is here, asked me to resubmit the plans and in hope of getting the permit reissued. Due to some miscommunication, and I will just leave it at miscommunication with planning staff, we were under the impression that we needed to, when we resubmitted, that we needed to bring the project up to meet current codes. And there wasn't really much to do architecturally. But as you folks know that things have changed a lot with drainage systems. And back in 2007, it was a very limited drainage system. And so we got ifland engineers involved and they did a brand new drainage system at considerable expense. That required a new landscaping plan and there was some of my time and there was over $6,000 of city fees. And needless to say, there was a lot of money put into the resubmiddle of this project. We also posted it last fall and then after all of this was done, we got a letter from the, that's when we got the letter from the city saying that they're not going to support a three-unit project. They wanted six units. So this was obviously a shocker for the client. And so he has made it clear to me that he doesn't have the resources and the time to go back through the whole process again. So we're asking you to either approve or deny this project. He has no intention of wanting to go back through and design a brand new six-unit project. It would be kind of a start over situation for him. We don't at all disagree with staff's analysis that we are in the middle of a housing crisis. And that six to eight smaller units would be appropriate for this site. I haven't done any, I have done zero design, put in zero design time to figure out what a six to eight unit project would look like on this property. It would undoubtedly be a rental project of some type. And even potentially more profitable, who knows. But should he decide to redesign, he also runs the risk that he could encounter some neighborhood resistance. We didn't get any resistance back in 2007, zero. And when we posted it in this last fall, there was no, as a three-unit project, there was no resistance, there was no neighborhood input. But who knows, with some neighborhood opposition and our new city council. It's not out of the question to think that he could redesign this project to six units and get some neighborhood opposition and resubmit. And then have to deal with neighborhood opposition and a city council that says we like the smaller density project. And he'd have to redesign again. I mean that's conjecture but we don't know what's going to happen. So we would like to get approval or denial for this project and hope that you can see fit to approve it. And then let Mr. Newman decide what he wants to do with it. Whether it's to sell the project or much smaller percentage chance redesign and try to sell it with a six-unit project. If I were a betting man, I would bet that you guys are going to be seeing this project come back to you as a six-unit project or something answer who knows but we'll have to wait and see. So that's it and any questions? But thank you. Do commissioners have questions of the applicant? Commissioner Seedy Miller. I have one. As I understand it, the project was approved and the permits expired this last summer after a long period of time. Why did the owner allow the permits to expire? Well, that's a little confusing for me because I was under the impression initially that he'd let it expire, that he could have continued that. But then I read in the staff report that there was a time limit on that and that it automatically expired, maybe Nancy can answer that. During the time it was approved, actually it's all planning permits are. There's a certain expiration date and in this case it was three years. So it was first set to expire in 2010. That was also the period of time when there was an economic downturn. And so the state stepped in and passed several assembly bills to extend any permit that had a tentative map additional years. So there was four such assembly bills, state bills. And so with all those extensions, the permit would actually expire in June 2018. And so Mr. Newman did come in periodically to check on it several times. But unfortunately the June 2018 date came and went. There was no building permit application submitted and so it expired. But yeah, typically a planning permit usually just goes three years because to take an account of any changes in regulations, changes in building code, changes in general plan policies. So in this case it's a quite lengthy time, but that's basically why it went that long and then expired. Thank you. As you asked, Kapala, so based on what you're telling me or what you're saying is that Mr. Newman was aware that his permits had been extended due to state law change, due to state law. And he was informed of that and had checked in with you periodically, excuse me, from 2007 until he discovered that his permits had expired. Correct. Thank you. No further questions. Anybody else have questions for the applicant? I'd like the identical question, but so could you have extended it more if you'd wanted to? No, pretty much it was we were relying on the tentative map extensions. The planning permit pretty much is accompanying that tentative map, which extended it. Any further questions for the applicant? With that, thank you very much. With that, I will open the public hearing. I'm sorry. I apologize. I thought you were speaking for the applicant. Welcome. I am John Newman, owner of the property. I'm also a Korean WarVet and 86 years of age, and my wife of 59 years is here. And I mention that because part of the option is to seek possibly a continuance. And the circumstances have to be encouraging in order to do that under these circumstances. My wife is confined at this time to a wheelchair, so we're looking to sell the property and do not intend to be part and participating in the developing to any extent. I should say that the staff report eloquently paints a picture for denial in its 15 pages, which I gave fairly deep reading to. And yet it was silent, definitely silent about fact that there was no such explanation or pointed out to us when we began this process. That the restrictions in the general plan would be anything but supportive of the plan. We have two very old buildings, maybe built in the 40s. And it didn't ever serve a purpose to put monies into them because I felt the properties would be much better for development in the long run. And we had, of course, as mentioned, a 15 unit property development project went up right across the street. So while the staff report is emphasizing denial, we were never informed that there may be a possibility of denial. So we approached this whole project thinking that we could follow the directions and be successful. So in my background, I spent seven years in Millwood, Washington, a suburb of Spokane as the chairman of the Planning Commission. And our compensation in those days was to work for nothing. And so one evening I introduced a motion to increase compensation for those of us who were doing this work. And it was passed unanimously. We continued to work for nothing thereafter. So public service is its own benefit and rewards. And I felt it was very useful. And in my term as chairman, I tried to exercise fairness, if good consideration to the people for whatever issues that would arise to us. And I learned to respect those who came and we tried to make judgments that fit those standards and to be patient and exercise equity in the judgments that we made. So as we moved along, Jeannie and I obtained a home equity loan early in 2018 in order to substantial enough to foresee the expenses that we were going to have. So we came to the division in the road. We come to an optional and we accepted it, as Yogi Berra once said. And we decided to move forward in an effort to get this project approved. And the three-unit project and we have a wonderful plan that's sitting there. That was a good part of it. And if when we hired excellent people, very familiar to the planning folks here tonight and completed that, but it was substantial cost and I would say it was close to $40,000 that we'd spend. We arrived finally in September, the fall of this year, as Mr. Thatcher has indicated and posted the property. And until that moment, there was never any indication that we were not complying with every need that the city had. We had two very old buildings. We have a very nice property. It's like a rectangular tennis court, you might say. And we had no clue that this might not be approved in the ultimate findings. So the plan ultimately was approved. And it was posted without any negative comments. And yet I have one of the copies that I have here was from Nancy, Concepcion, 8th of October, 19th in which we posted it without comment. And then at the bottom of this report, mid-October toward the end of October, it said that it's possible that they would like to have six and possibly eight units on it. And that to us was stunning. There was never any indication that that would be possible when we undertook this project. And even though it could be of some help and assistance in marketing this property, the fact that we have been approved for the three-unit condominium project, with the tentative map, we felt would be an enhancement if we went to the marketing stage of this, which we think hopefully maybe in February. And so we had to absorb that. And we've had some meetings with Mr. Marlatt and Nancy Concepcion and even some notice and commentary from Mr. Butler about this project. And to suddenly find ourselves with the rug swept out from under us is a very hard reality. So I went down Monday and got the report from Nancy. And the conditions are, of course, a continuance or approval or denial. And we feel it is a travesty, perhaps a miscarriage of justice if we're not allowed to emphasize our hopes that we could receive an approval as approved by the council and move forward and market the property with that, even knowing that the possibility six or more units would also be very attractive. But we think we deserve to have that. So I asked Nancy if there would be any mitigation for all the monies we have spent to arrive at this point. And she said, no, if you applied for, this was Monday. If you had another project, you would start from scratch with the expenses. So it doesn't make too much sense to think about asking for a continuance to be involved with another uncertain application to the planning people, which could be shot down again. And so we see two possibilities here. Approval, we know there is the denial. But throughout that denial, there was never any suggestion that there would be a possibility. We probably would have gone for the five or six units and have our tentative map for that. So I think we urge that careful consideration, as I was taught to do in Washington state as the planning commission person, that in fairness, I think that we should be allowed to market this with the approval of the three-unit project, as well as the potential enhanced for development with the six or eight-unit possibilities. And I think that's what I would have to say. And I appreciate this time to address the commission. Thank you. We appreciate your comments and your insights into the history. Did anybody have questions of the property owner? Yes. I guess it's more of a question for staff, actually. I'll hold that. Okay. Thank you. All right. Yes. I have a question. Mr. Mercedes Miller. I have a question. Mr. Newman, your summation, I guess, was left me a little bit confused. So as I understand it, and maybe this is a question also for staff, but as I understand it, the planning commission doesn't have a basis for approving your project. There's no basis in current general plan findings for us to approve the project as it's currently submitted. So we would struggle with approval. I'm speaking maybe for myself. I would struggle with approval. Then the second option would be to deny your project. Then you could appeal this, the decision to the city council. The other option is that we would ask for a continuance for a redesign. And based on what you said, just to make so it's clear for me, it sounds as though you're not interested in continuing this matter for redesign. You'd love to have an approval if we can figure out how to approve your project. And if we can't approve your project, you would then like us to deny the project, so you can appeal it directly to the city council. Am I understanding you correctly? Yes. I would like to say, though, that the general plan exists at this point, like a large cloud looming over us as occurred last night in this area. And it was not even present when we began this discussion. And it looked like the three units surpassed the two much older units that I had on the property and that were scheduled for demolition. And we think that the three units is a good plan. It's a solid one and it's attractive. And what's hard to get past is the fact that we spent all of this money to get to this point to find that our efforts have been fruitless. I should add that I have a ruthless structure on the property that has been there for the last year and a half on unable to rent. And Mr. Gervisoni from the planning has come out and we have a permit for that little tiny 300 square foot ADU, which was considered illegal because it was three feet next to the adjoining property at Staff of Life. And it needed to be five or more feet away. And that was put in maybe in the 40s. But they waived those kinds of things. And we spent maybe 10,000 to get a permit, which is existent in the files here with the city, be once 16, 05, 6, 7. And would be, as I understand it, renewable in February 2019. So all along, why did they allow us to make these applications? Why did we were told that the general plan was not a factor in the early times of our approaching to make this plan happen? And all of a sudden now it's clear. And I accept the conclusion of the staff report that suggests the property needs larger, bigger number of units to be on it. But in fairness, again, that word is a tough one. It's not fair that we were just misled in a sense. And why was that? Because I don't think planning staff knew that these relationships with the general plan were going to be as formidable as they have become now, but not back in February, March. And at the time when we received our home equity loan. So I just think in fairness, I would urge the commission to approve this plan. And I think that the general plan considerations are far different at this moment than they were. And I like those, the change in their direction. But at that time, why did we keep going through this with all that expense to arrive at this moment and then say the general plan was always there and the need to expand and have more units is very prominent at this point. But it had nothing to do with the way we approached at the beginning of this effort. Thank you. Any other questions? Seeing none, we will thank the applicant for their insight and open the public hearing. At this time, members of the public are invited to address the commission on this matter. There's, you have up to three minutes to speak. And seeing, I ask you to please sign your name and on over beside tests and introduce yourself. My name is Clark Knapp and I've been involved with this family for many, many years. But what I find is that travesty here is having been led down this path. And we are trying to find a way to support this project. Well, it has been supported all the way through. And you should honor what commitments this council and this staff has made through the years. I don't see where this is inconsistent with the plan. It is adding more housing to the area. It doesn't meet any neighborhood objections. And it still could come back to you as a project that may come with six or eight units or it may come with three units. But I think it's all for the good of the community. I would hope that you would find it in your hearts to stick with your word and honor and approve this project. Thank you. Any questions of me? Thank you for your comments. Good evening. My name is Uwe Rivas. I am the real estate agent for John Newman. I just want to clarify a couple timelines here. And that is that John first approached me during the summer that he wanted to, he realized the permits had lapsed and that he wanted to go forward and try to get them renewed. And that was during the summer. And in August, Tom Thatcher approached the city with wanting to go ahead and reapply. So it was from the summer to middle of October after they said, let's go ahead and reapply that he spent all that money. And then so two months later it got denied. So that's the big question is that timeline that we've been referring to this evening. And the other thing that was a question about why did he let it lapse? Well, you know, the economic downturn, it wasn't a viable project. And since then, his wife has been ill and he needs the money to take care of her. So that's something also that definitely should be taken into consideration. Thank you. If there are any questions? It's not normal to ask questions, but you might know better than staff. If we were to find some way to approve it, how could you market it as a three-unit project? Because whoever bought it couldn't go forward with a three-unit project. If you were to approve it, if you were to- If we were to find some way- To some way to get it approved, then we could market both ways. It would be I'll have a much better appeal. To prospective buyers, your buying potential buyers expands. So you'd have two options. Even if one might never work, the laws might change. Thank you. Thank you for your comments. Any other members of the public seeing none? We will close the public hearing and return this for deliberation of the commission. And would anybody like to start? Mr. Spellman. So I want to appreciate Mr. Newman and all he's put into this. I think we're at a point in time where policy is changing, unfortunately, for this project. I listened to what you said. I think that for me personally, the timeline is a difficult one. Certainly in 2007, when this was approved, there's a different climate for approval for three units versus units that would be at a higher density. And we haven't tested today what the market would say to three units versus more units. But from a policy standpoint, the city has directed us to encourage and promote a much higher density use on this site. From what I'm listening, you resubmitted that project at the end of the summer or early this fall, and through the process of review from the city, their comments came out that, in fact, that the higher density is a basic requirement, essentially, for this site moving forward. It's unfortunate that that comes as new news to you and having to essentially redesign and pay all the fees and pay all the design and engineering to then come up with the new plan. But that's, I think, the situation we're in. And I think I have a hard time finding a way to support just the three-unit project. Thank you. Anybody else have comments at this time? Yeah, I'll jump in. I believe Mr. Spelman and I share a similar... I appreciate the quandary that's presented here tonight. I certainly am filled with empathy and compassion for the predicament that Mr. Newman finds himself in, but I don't see how the Planning Commission can make a finding for approval based on the current general plan. It's just not going to be possible tonight. So my suggestion, and just, I guess, if you're looking for a motion, Chair Conway, I would make a motion that we deny the project and allow the applicant to appeal the decision of the Planning Commission for denial to the City Council. It seems like the most expeditious thing for resolving the conflict. He's not interested in a continuance for redesign. So I don't know what other option we have here tonight. That's my pot. Somebody want to second that motion before we'll deliberate further? I think we have... Second that motion. Okay. So we do have a motion to deny on the floor. I think we have a lot more discussion to pursue. I know I myself am interested in probing at what it would mean to continue. I think it's clear. I agree with the commissioners that have spoken so far that, first of all, it is regrettable to find out that the project as proposed and approved in 2007 is no longer viable in the community. It is also true that it is elapsed, that application did lapse and you had to be, you know, reapply with the same project with some updates to meet some current standards. That said, the situation has changed dramatically both in the recognized community need and also in the City's mandate to identify opportunities to meet a housing need. I agree that it isn't possible for us to... I don't see how we could make a finding to approve this project. It might be worth noting though that what could come forward on this property can be informed by the studies that are there to date. You've done some studies, I assume a survey. You've got some value in your drainage plans and understanding of the site that I hope could be at least partially recouped. I also note that the recognized need, especially just immediately in the area that we are most hoping for density, with the density bonus on that site you could potentially have, you know, small rental units which we need very badly that could be really enhance the value of the property and I hope that it would. And so one of the things that I wondered is rather than to deny, I've wondered if there was a continuance what we really are doing, acknowledging that the property is going to be marketed for sale soon, as soon as next month, marketing it with a continued application if there's any value in that in terms of original application fees. Is there any... I mean obviously what we would be... or it appears that what we would be recommending is a redesign with additional units. Continuent, is there any value in terms of an application has been submitted the initial application fee? Does any of that transfer to a new... Just wondering. So if the application were to be denied and it were appealed to the city council and denied, that's very clear that, you know, that application is done. Certainly that with a continuance there... We've gone through a lot of expenses with this in terms of the review and the preparation of the staff report. However, with the continuance we would be willing to look at charging the delta for the additional review. So there is a value in that, you know, there would be additional costs to us in terms of reviewing essentially what amounts to a revised application and the routing of that. However, there would be that value in terms of looking at the difference between what is a three-unit project or what is a five-unit project or a six or whatever it may be. And I do want to agree with the architect Mr. Thatcher that, you know, he hasn't looked at what could be accommodated on the site and how and neither have staff we haven't been presented with any of those options. And so we don't know how many units could ultimately be accommodated here, but we do believe that substantially more than the proposed number of three could. And we also didn't find that way to make the general plan conformance finding. But back to your original question, yes, there could be some value particularly recognizing, you know, the sequence of events and looking to still make sure that we're addressing some of the additional costs that we have to charge at least for the delta between the three-unit project and however many units they submit for. Sure. Understood. The department's costs are real costs and generally charged through an at-cost account. And I guess that's what I was getting at is wondering if there is just some potential of a recognition of value and also that if it's going to be marketed for sale next month that there's some guidance about what the city would expect going forward for a future buyer. We know that there's going to be a minimum. The maximum would need to be explored through a new design. So I guess that's my question there. Are there any other comments? Yeah. Commissioner Pettio. With regard to the minimum and the maximum Nancy, the table that you showed was are we looking at six to eight or is that not known to the 20 to 30 for this lot gets you to six to eight or is that not that clean? Could be more. Based on the zoning it comes out to like six units with two plus bedrooms and then eight units of its studio or one bedroom units. And part of you know in the context of the general plan this is a pretty unconstrained property. It's a fairly standard shaped lot level. No really notable vegetation or it's on the periphery. So it could go a higher density based on the general plan policy as also in this location about being a transitional property. So with that said so like for example if it was six units with the two bedrooms that's a 31 dwelling units per acre which is the high end of this medium density residential. But again with the emphasis on trying to encourage additional development on unconstrained properties you know it could go higher it would probably be encouraged because the mixed use high densities at 55 dwelling units this one at 30 you know something in between would be ideal but you know that that's where it kind of gets into you know putting in all the setbacks the open space parking but that helps answer it. And the general plan if they were to fall within that range of 20 to 30 dwelling units per acre they would be at four to five units. The six units would put them at slightly over the 30 du per acre. However there are other general plan policies that can support that. I'll read you a brief clip of the general plan in the land use chapter speaking to residential densities. Each residential designation establishes a maximum and minimum development density. A site's density must be at or above the minimum unless constraints associated with the natural environment require a lower density. A site's density must not exceed the maximum requirement except as otherwise permitted or encouraged by policies and actions in this plan. And so there could be the potential to increase above that five units that would have to be met with general plan policies to support that and the zoning would support that. So in looking at that we have a myriad of policies that support development and locations that reduce vehicle miles traveled where people can walk to meet their everyday needs. And this particular location is situated in a very walkable location probably one of the most walkable locations outside of our downtown with access to three grocery stores within three full service grocery stores within very close proximity to restaurants to entertainment to job opportunities. And so this is a location where other general plans policies could support higher densities and they would also be supported by the zoning. So there there is the potential to go substantially more units than three. And do you we're trying to throw we're trying to help the applicant recognizing that the disappointment and cost and negative outcome for them relative to what they wanted. So we're trying to help them in your sense is it worth some gesture from the planning commission that'll help them shop this thing you think that's worth it. Some gesture in terms of a continuance or yeah or some narrative that goes with the denial that helps them say well see this is what I want to buy this parcel look at this is what the city wants to see. Well I think the if the planning commission chooses to go the denial route the record will reflect that the city is looking for additional units and and and so that would be apparent to any future buyer that that at this point the the three unit project was deemed to be too low and so in order to meet the general plan density range at minimum you would need four to meet the other applicable policies you'd be looking at five plus well sophisticated buyer can figure that out so is it worth us going through the machinations here we just you you could include that with your denial statement letting the record reflect that a proposed project with additional units would be looked upon more favorably and of course we would go through as as Nancy indicated and make sure with whatever application came through that they're meeting all the applicable criteria and so you know it's not a given that they could get six or eight units out here we'd be looking at all those other criteria open space parking and so forth but we do believe more be achieved. I'm in support of motion when we get there. I just have a few more points of clarification too so when you read that last general plan component about getting above the density one of the things that's in there is that it needs to meet the minimum density as well that's correct was that part of the general plan in 2007 when this was approved? I don't know if that specific statement was I would expect that it was Nancy was here at the time she might be able to chime in I would expect that it was I think the distinction there was that at the time when this came through under the prior general plan there was that requirement for a variance and as you all know and determining the outcome of variances those have fairly strict findings and so those sometimes were at odds with one another is the ability to make those findings for the variance and so that I believe contributed to the 2007 approval in that there was some level of inconsistency and in some respect and urging to go with lower densities at the time because of the requisite variance findings associated with having more units on a parcel like this given the lot width and I'll ask Nancy if she had anything to add and that basically is the basis you know back then in 2007 there wasn't many development projects coming in this was a project that supported or proposed three units the density was 3.8 with the variance requirement you know they're making those findings we found that that would be a sufficient project because in also in terms of the current development at that time the adjacent properties essentially were two plus units so having a three unit process project jason to the more you know transit corridor more commercial area that seemed consistent but now given the change in the development in the area now you know that's also the new thing that were one other factor in consideration so my point is more about then communication and I think we're going to be put in this position moving forward more frequently this project's pretty unique the approval has been around for a while but if he went and did re-engineering for the same project because of new civil and you know water drainage components this could have been a very short conversation that said you know what this three units is really not going to fly so going through that all that extra work for what you have already in place is really not necessary now I don't know the details of how any of that went down and if somebody walking up to the counter today in an rm zone district you know the first question that's or the first answer they're going to get is here's the density that you need to meet for that lot they can't come in with a three unit project that doesn't meet the density and they're able to submit and go through the process and find out after all of that that guess what that that's not going to work so it sounds like there's been some unfortunately you know a project was done and then resubmitted and that piece of information about the density change really wasn't communicated until after it went through its review of that second submittal it sounds like he had to do additional work even to get in the door so I shouldn't I should note that when we take in an application and in this case we pretty much had enough conceptual plans to process it as it is from the 2007 approval we didn't really ask for additional work to be done you know this is a pretty flat level lot there was really no concerns of drainage at that time so I think the miscommunication was they went forward and got that work done we did not request it or ask for it for the resubmittal okay there are however substantial upgrades to stormwater regulations for example that occurred since 2007 and so in order to meet those criteria a additional additional work is involved with that and when the my understanding of the situation just you know to daylight the the issue that's you know kind of the elephant in the room from the applicant's perspective is there was a communication at the counter what do I need to do to have a project that was originally approved to have it approved again and well you need to resubmit and so that direction was provided and a thorough analysis was not done it was just you need to resubmit the applicant did take the steps to to update the application to some of the current standards and at the initial review within the 30-day time frame of the initial review letter when a thorough analysis of the project is done it was identified that the general plan was inconsistent with that and so yes we the point is very well taken ideally at that initial encounter it is identified and and noted that hey when you come back if you choose to submit this project there are going to be some issues and the general plan conformance is first is foremost among them sure okay yeah I appreciate that I mean I think given the fact that extensions are out there and things are changing it's right hopefully going to get easier and simpler and the communication back and forth will be more forthright yeah well and in this case I mean it's very easy to see how the simple answer to the simple question is this is an expired permit what do I do to re-up it it's all designed it's an attractive building it was you know it was designed in answering that it was you resubmit so it's not hard to see how it happened and it is unfortunate and especially in light of the pressure that the city is under from the state law which we only expect is going to continue to build so it's it's something that you know to be aware of but I I also think that whoever was at the counter answered a simple question of the of the process so it sounds like we generally have consensus that or I'm not hearing who anyone wants to move for the approval there is a motion on the floor for denial my point was that was I wanted to poke at to probe whether there would be any advantage to the sale if there was an open application that had been continued by the planning commission and I'm hearing that it may have potentially some but maybe not a substantial enough value to to continue rather than simply deny are there any any other clarification on that point is there any other not on the the value not from yeah okay go ahead I mean having spent some time looking at those drawings and understanding a couple of questions so ad use are allowed if the proposed ad you amendments get approved correct the rm zone which allows residential uses could have ad use are they currently allowed or are they only be allowed with the new changes and ad you well consistency with the state law will require this is one of those that falls into the state law category so we can't we don't have the opportunity to deny that when it moves forward so ad use will be allowed I was hearing that it will that there's already an ad you on there and I would ask Nancy is this lot size over 10,000 square feet no it's eight to that okay 8000 so it would be one you know there's the provision that would entertain the possibility should council choose to approve it of 10,000 square feet or more on ad allow or sorry 10,000 square feet or more of lot size allowing to ad use so this would only allow one and I was hearing that there may already be one there okay yeah so that's that's a different twist I was thinking three units three ad use it would be you could put pretty small units and not change significantly the layout of the three unit design but that would be a minor tweak but it sounds like there's complications there so okay so you're going in a partially different direction I thought you might be talking about keeping the existing and adding an ad you or multiple ad use in that instance you know there there could be something that could be accomplished through for example through a plan development typically you know we've got accessory dwelling units with associated with the single family residence but we could through a plan development look at changes that would allow changes to use that could allow an ad you on a multifamily property and and have to have the square footage for a plan unit development right thousand no sorry yeah so we don't have that there either so yeah yeah so not as an ad you it would it would have to be as a regular unit which you know they they could do but they wouldn't get some of those same benefits that you get any proposed an ad you with parking reductions and so forth okay thank you so yeah I I'm finding it hard to see that a redesign is a simple thing I think it's a fundamentally different project yeah I'm agreeing with that there are still some engineering work that may have some value but okay um any other comments there is a motion on the floor in a second yeah just one last comment I you think we're in marching towards a denial and that won't satisfy the the talent um I would I heard the words misled and miscommunication and sticking with your word and honor and I think that's a very important thing for the city to consider so I'd encourage the the applicants the opponents to submit your comments I find this the city staff to be responsible and professional and and and receptive to where they can improve so I encourage you to share that it was just kind of vague references to how things could have been better and I know staff always want to do better so I would encourage you to submit that to them so they can improve and if you don't think that'll be well received please share that with the planning commission because that's useful for us to deal with matters like this in the future that's the only last thing I'd say other than we are giving careful consideration I believe any other comments with that I will ask for a roll call vote commissioner singleton hi spellman hi entity hi tapping hi the cd miller hi chair conway hi question yes so our our denial will go forward with a denial based on the fact that it doesn't meet the minimum that's right so that's fully understood by the applicant in the denial that when he markets this he can market this because it was denied because he didn't have enough units yes we can let the record reflect yes we can let the record reflect clearly in the minutes in addition to the staff report but in the minutes themselves so that there's ease of reference thank you okay thank you very much okay with the change personnel anyone okay as the staff changes and the we'll move on to item number three on our agenda 1720 west cliff drive cp 18-0149 and I believe we have a good evening commissioners mike ferry on the project planner arrange this stuff so the project site you can see here it's an irregular lot it is considered a substandard lot we're not seeing it yet it's considered a substandard lot because it is not 50 feet in width so with the substandard lot we've got additional lot restrictions lot coverage floor area that sort of thing it's also on west cliff drive and that has another overlay of restrictions so it's a it's a pretty restricted lot for development the proposals to construct a new about a 2,900 square foot house two stories it's going to have a detached 400 square foot garage and where's my layout it's includes a three bedrooms three baths a living room a bar area in a family room so the zoning administrator heard this item on number seventh agenda and at that hearing there was five people that spoke in favor of the project the appellant was there he lives to the east of the property right here or he owns the duplex to the east and he spoke against the project one of the concerns that are in the minutes of the zea meeting was the two stories adjacent to the one story apparently a privacy issue came up one of the conditions or the condition that the zoning administrator added was to increase the hill the sill heights in the bedroom that would be adjacent to the existing house so Mike Brodsky is the appellant that owns the property to the east he submitted his appeal letter I attached it to your report and it seems that the emphasis on the appeal is adding the second story adjacent to a one-story house and also there was some issues with the heritage tree stuff so I'll just go through these slides and get us to where we're going so the zoning in the whole area is our one five it's also all in the appealable coastal zone so these kinds of permits require coastal permits as well as design permits this is the appellants duplex that is adjacent and you can see the house directly north of his is two stories this is the project site itself this is the adjacent duplex and then these are the heritage trees so that's all also part of the appeal is that the um our our urban forester on a chose to be conservative and wanted to include one heritage tree removal permit and that's basically to remember or to remove this one branch and it hangs over the property line and that'll interfere with construction of the detached garage the rest of those trees according to the arborist reporter dead and the one tree to preserved is I think it's about five or six feet north of the property line so we have mitigation measures to preserve that as part of the conditions of approval so the house directly across the street is the stone house on west cliff drive just north of that is another two-story house and again the the lot to the north of the duplex lot is shown here and the house above that was also two stories so I don't have a good slide of it here but this duplex lot has little area back here that fronts on Stockton Avenue it's kind of an L shaped lot the adjacent lot and that's that's why the house to the north it's kind of far from the duplex because of that yard area I don't think it's that far but it's because that yard area is an L odd shaped lot at any rate on looking at the site plan we've got the detached garage in the back that meets its setbacks the first floor of the main house is five feet away the second floor is seven and a half feet away meets the street side yards again it meets the r15 zone district standards the sub the non non-conforming lot district standards in terms of floor area and the west cliff drive restrictions so it's just there's a the site plan with a landscape layout this is the floor plans ground floor is dining one bedroom on the ground floor kitchen area family room second floor has two additional bedrooms large balcony out in front of the master bedroom in front of this bar area it's the front elevation or the south elevation that would be facing west cliff a lot of glass kind of a typical contemporary look for west cliff drive smooth stucco finish metal seam roof these are the balcony areas and this is the elevation that's facing michael brotsky's property and the condition that the zoning administrator placed was to increase the seal height on this back bedroom window to help preserve some of the privacy and you can see that the the roof section there is you can see that the second story is stepped back seven and a half feet and that's the exposed or the metal roof area there the back elevation increase that seal height that is the ingress egress window and there's a closet in that bedroom on the north wall so just so that the applicants are aware that to comply with that condition and still meet the ingress egress requirements that are required for the building code they would either need to move the closet and put that on the back side that's that's likely the solution that would need to be implemented in order to achieve that increased sill height so it may remove a window from that wall in order to meet both the permit condition and the building code requirements for maximum sill height to allow for people to exit through a window should there be a fire so there are additional design implications associated with that condition that was added at the zoning administrator stage just wanted to make that clear for both the commission and for the applicants and appellant thank you so that's the west elevation of the building again smooth stucco columns balconies and that's the rear and this is the detached garage so the west cliff drive has the building envelope restrictions and you can see here that it meets those restrictions and so the the drawing shows the height at 30 feet and in the staff report i'm telling you folks that it's whatever i said 26 feet and some change and the way we measure building height isn't to the actual top of the building it's an average of the height from grade to the highest plate and then from grade to the highest peak so that average height comes out to whatever i said in the staff report i forget 26 or 27 feet so it's a couple feet less than what you're allowed to have and it's just another angle um and it's the the front of the lot kind of curbs steeply so they took two shots one from the edge of the property line to show that the section of the building meets the envelope and then in the center of the lot they took another angle to show that the rest of the house meets that envelope and then here is an artist rendition of what the house will look like and that's from west cliff and that would be from Michael Brodsky's property and again those are the windows that had the condition on them so i forget exactly uh when this was and i meant to look it up again i think this was approved about eight or nine years ago and this was also a two-story house on this property and i think during the economic downturn the homeowner walked away and never constructed the plans this one was a little different they had a small section of the house that was five feet from the property but then the two-story elements here and here they were seven feet away on the ground floor and above so the second story element was seven feet away portions of the first floor were at seven and a half feet i believe and then this would have been the east elevation so this did get approved at the zoning administrator and this was good for three years after that approval and it was kind of a eccentric design it had a metal this is all metal almost netting that was that was covering the building it was pretty eccentric but it met all the some district standards and the west cliff drive standards so that was previously approved that's what it would have looked like from west cliff these were big metal screens excuse me i want to make sure i understand the previous project approved for the site are you saying that it actually took up additional went further out into the envelope no no it was within the envelope and it was within the setbacks i maybe i didn't um explain it correctly i just i just i probably just misunderstood so the difference between the project that we're looking at tonight is the first floor is five feet away on that whole wall it's five feet away from the property line in this project they went back to seven and a half feet right here and right here and then they went up a straight two stories so the reason i'm bringing that up is that when we look at these um non-conforming lots and we see the two-story argument next to the one story what we have done historically for the last 20 years and i gave you several examples and one that included the court case we want the second story to be placed typically just offset from the first story so we want the side yard setback to be increased on these substandard lots and that's that's what we tell folks when they come in and there there's a lot of substandard lots in town there's no way that anybody would tell somebody you cannot have a second story on a substandard lot but we want you to do something sensitive to your adjacent one-story house and that could be anything including setbacks that it could be frosted windows for privacy we've seen all kinds of things so i did include the letter from the city attorney i thought that was a pretty illuminating letter it was hard to read i apologize for that that's the only copy i could get but it did go into and explain to the council who had approved this project and then i went to court that this is the technique that we have been using um so i have had no comments from the general public we did get one letter from read sorrel that you saw and i always appreciate reads letters uh and we got a letter late tonight from the applicant and i asked uh that that be the appellant i'm sorry um and i asked that you guys were forwarded that and i think you got it and then my boss the planning director reminded me tonight that we have new bird fenstration treatments and we just kind of had a seminar last week and it had skipped my mind so i added a condition of approval and i printed a copy out for you and for the applicant the additional condition is that the applicant will work with planning staff at the building permit stage to include bird safe design measures for the portions of the fenstration of the home that have the potential to reflect the ocean and that will be to the satisfaction of the zoning administrator and what we learned is that if you have a really reflective window and you're near a body of water birds think that they can go right into the ocean when they're looking at your window and they'll hit the bird or the window and so there's a variety of things that you can do to the fenstration so that the birds will avoid the windows so and it's an active or working on this policy it's not hasn't been finalized but we'll be able to work with the applicant to come up with something so with that let me get back to my notes yeah that's it for my presentation we're recommending that the planning commission uphold the zoning administrator's approval and deny the appeal and the appellant is here tonight okay thank you could i ask you to put a picture up of the actual project just so we don't get confused some of us are old thank you um so first of all do commissioners have any questions of staff seeing none at this time i'm going to um ask the appellant uh to address us you'll have 15 minutes after which i will ask the applicant uh to make any comments to us good evening good evening commissioners my name is michael brotsky i live at 1712 west cliff uh next to the proposed project and i'd like to start out by repeating my welcome to mr kumar and his family to our neighborhood and by repeating my support for his plan to build a home on the lot that lot has been vacant for quite some time and it's attracted littering and other unsavory activities and building a home there will be a welcome addition to our neighborhood um i'd also like to point out that i've never spoken against the project or contended that mr kumar couldn't have a second story um what i've asked for and what i'll be asking for again tonight is simply that he conformed to the zoning code and they're just it's very straightforward black and white there's two provisions of the zoning code that are not being met with this project um before i launch into that i would also like to just thank this the city staff has been very helpful to me in this and providing documents and information and in particular mr fairy has been very helpful and very patient with me and i do appreciate that um so it's my home that's there i mean mr fairy referred a couple times to a duplex there are two small cottages on the lot the front cottage is my home which is 1360 square feet the rear cottage is 770 square feet i use that as for occasionally to entertain guests i've never rented the property or operated it as a duplex the maximum height at the peak of my roof is 15 feet there's a hand out there with two pages that shows a picture of my home and my rough i'm sorry i didn't hire an architect and do fancy drawings and whether it's 30 feet or 27 or whatever we said that's approximately how the two things stack up to each other it's also important to understand that my home is the only adjacent home to this proposed project my lot is an L shaped lot excuse me that wraps around the property so there are no other adjacent structures the only adjacent structure is my home which is a one story home um it's a big lot i mean i have a 10 000 it's over 10 000 square foot lot it's got furnished on stockton it's got furnished on west cliff i recently spent 65 000 putting on a new shake roof and painted the place and did a bunch of repairs and you know all my friends and family tell me i'm nuts you should tear that thing down and you know scraped a lot and build a 4200 square foot macmansion there which i probably could um i think my home small little home cottage adds some character to west cliff um the tourists on west cliff stop and go in front of the aloe plants that you see there in the pictures and take selfies of themselves with the aloe plants in my home in the background so if that's any measure of it if i'm adding anything to the community for whatever it's worth so the two provisions of the zoning code that aren't met is uh the one that says placement of second story elements adjacent to single story structures shall be avoided no excuse me the first one is section 24.08.440 paragraph 3 which says new structures shall be consistent with the scale of structures on adjacent lots and generally be compatible with existing surrounding structures so the staff's findings only address the second portion generally compatible with existing surrounding structures by addressing the stone house and other houses in the area but my house is the only structure on an adjacent lot and i think from looking at the picture of you have there in front of you compared to the rendering there i don't really think those are consistent uh the second requirement is that placement of second story elements adjacent to single story structures shall be avoided now the the staff findings have said that they don't consider my home to be an adjacent structure for purposes of this requirement so i looked in the definition section of your zoning code and there's no definition of adjacent structure an absent a definition in the zoning code a specialized meaning cannot be attributed to adjacent structure it's given its plain ordinary meaning and anybody looking at what we've seen here tonight would agree i'm adjacent i also saw the uh city attorney's letter for the first time yesterday and that's very helpful to me because the city attorney interprets the previous court case from 2004 as imposing these that these requirements of the zoning code impose two requirements one is to minimize second floor footage so that has not been done here the opposite has been done the way this home has been designed is ordinarily you have a limitation that the second floor can only be no more than 50 percent of the floor area of the first floor but if you minimize the size of the first floor then you get a bonus and you can maximize the second floor and that's what's been done here but that comes into conflict with the other zoning code provision that says we have to minimize square footage of second stories where it's adjacent to a single story structure where two provisions of the zoning code come into conflict the more restrictive provision governs and that's also stated in your zoning code in the general provisions so at a minimum that second floor bonus square footage provision cannot be taken advantage of in this situation the second thing that the city attorney letter interpreting the court case said is that in this situation you need increased second floor setbacks and we do not have that here the west cliff drive overlay district requires a seven and a half foot second floor setback the proposed design is a seven and a half foot second floor setback so there has been no increased setback above and beyond the underlying zoning so the net effect of this is that these two provisions of the zoning code do no work in the design of this home they have no effect their surplusage and it's just not possible for staff or anybody to interpret a municipal ordinance in a way that provisions are given no effect the other concerns are that as I say I just put a brand new roof on the house I'm planning to put some solar panels up there and I think that this we need to consider how much of my solar access is being blocked by this another concern and why this is different from the previous home that Mike made reference to that was approved by Mr. Tusa Tommy that was a number of years ago and then he just changed his plans and he decided he didn't want to build it so that was that was the issue with him but if we could we possibly put up that other rendering that shows the it shows the garage it's the artist concept that shows the east side and then it also shows the garage there it is yeah so this is the east side my home runs right along here so that second story is above me for that length there but then the garage is also pushed right back up against me and the height of the garage is 15 feet and it's only shown as three feet off the property line the previous design had the garage around in the front so at least the backyard was completely open and I didn't have structures next to me a two-story structure and then the one the one story 15 foot garage next to me for the entire length so as the garage as far as I can tell is not violating any zoning provision but moving the garage further out toward the street and perhaps putting a flat roof on it might mitigate some of the effect of the large structure and might be considered in an overall approach to redesign also I think you know the second story needs to comply with the zoning code and I think you know the design revisions can be made so that it complies with the zoning code and there'd be a very nice house there and everybody can live happily ever after then I just do want to reiterate that that I'm not trying to block the project or say that the home shouldn't be built there I'm simply asking that it comply with the law do you have any questions I'd be happy to answer thank you very much are there questions of the appellant Mr. Kennedy how far from your house to the property line I think it's five feet for the previous design were you the neighbor at that point as well and you were you approved of that proposal I was engaged with the impelt at that time and one of the things that I engaged with him and they gave me more comfort was that there was not a garage in the backyard and I had that 20 foot clear space and I was aware of that okay the questions of the appellant so you know thank you very much very thoughtful presentation at this time I'd like to invite the applicant to make any comments including rebutting the appellants points everyone my name is Jagdish Kumar I believe this project the new design is way more beautiful than the old one personally I take that design of the house 15 houses neighborhood every single person love it not even single person say no good except Mr. and uh bringing good things beautiful things that neighborhood and this is going to be at that house is to me I'm a builder that's this beautiful house and everybody love it I show this house this picture over the hill I show those neighbor they say oh honey husband wife talk oh honey can we wear something like that we knock our single story I mean people excited to see this house they dying to see this house over there however first the single story jason to double story that stuff is is wasting time and that was the case this cliff drive nobody have double story house and uh there's several house right no new house going jason to single story to double story so if I build a single story house there Mr. Bernaske build two more year double story then my complain gonna go against the hand then he never gonna have a double story I'm never gonna have a double story that's not the way work long you meeting city rule regulation you're fine good to go and I believe Mr. Michael all his complaint is not valid I believe that he's a strongly and uh it's a beautiful house all those neighbor nobody have a problem everybody love it and other issue we have there's a tree there to me the most important the house the building anything in the world most important public and animal safety we like to work go home one piece healthy not to hospitalize for me as a builder safety come to first rest of things second I don't care safety safety safety safety every single time one of my friend helping me put some two by four against the fence then he stand the tree hit his head open this much you have a four month off work he's not doing good still his sister come in the property taking picture sir Bernaske go there talk to her oh this is jack tree go and sue him he should pay all the damage according to them that's their statement in the complaint he invades that that's he's a tree if you read that he's a complaint and he's an wet that that's he's a tree it's a survey already done the property according to the survey those three into his property they're over like this umbrella which is you guys see the picture and I try to cut those three from my property lines to trade up several time I make a point when with him he cancel cancel all give me let me some more time let me talk to this guy let me talk to this guy let me talk to this let me talk to this he never let me cut I believe the state of California law whatever in your property straight line you can cut it especially they're unsafe they're dead and that's crazy and he want to save those that did the tree that's a ridiculous and people can get hurt appeal let me take it those three long time ago my friend he should be perfectly healthy and he should have me go to work hey he's a family be happy and I don't know what's going to happen to him because he aware that that problem and there's a several business I make a appointment to clean up the mess he don't let me do that because he's a attorney he's threading all those neighbor oh if you mess with me I sue you all those neighbor against this gentleman I talk to every single one they say I've said all those neighbor told me if any issue legal with this person be right behind you and uh once again like I say those three I don't have to cut from property I have right to cut this my property line is for safety reason and also my building reasons and uh far side concern my project is beautiful I really appreciate it a few guys approve and uh far side concern this is wasting time and his complaint is not valid thank you very much thank you do commissioners have questions of the applicant did you have a question oh okay sorry about that I thought sorry to bring back up any any questions of the applicant see none thank you very much for coming and with that um I will uh this is a public hearing and I will be um excuse me I think we're done with your comments um you know I think we did hear from you adequately I'm going to try to move the meeting along I thought I don't think so I don't know not in the procedures I mean I don't have a huge problem with it we don't have a lot of public comment okay I'll grant it I never told anyone to sue Mr. Kumar and in terms of the trees uh the way I left it with him we had an agreement that he was going to hire an arborist and that he would let me know when the arborist would be there and we would meet together with the arborist and instead of that he went there with the arborist wrote the report and submitted it so as far as I'm concerned I'm ready to meet with him and the arborist and figure out how we can deal with the trees thank you this is a public hearing I'm seeing no members of the public here uh to address us but I will open up the public hearing and I will close the public hearing and bring it back to the commission thanks for the presentation Mike a question about can you talk um can you share some comments with us about the the appellants um the the whole adjacent property the way I read Mr. Brodsky's Mr. Brodsky's letter was that that staff doesn't review doesn't view his property as adjacent and that he does can you help us with that oh his property is adjacent what we're saying is that the second story because it has an increased setback is not considered adjacent that's that's the whole argument that the city has used for the last 20 years the second story is not adjacent so um deciding two um codes that are not that this project is not consistent with and according to the city attorney's interpretation the superior courts um ruling this is consistent and that's just um difference in interpretation in your opinion sorry difference in interpretation is that what explains and why is why is uh you're saying it's consistent and Mr. Brodsky's saying it's not it's just a difference in interpretation you'd guess yes okay and I would also point out that the language he says shall be avoided it doesn't say prohibited um so there isn't a absolute prohibition there and uh I would say that there is the discretion lying with the planning commission to make that interpretation and according to the reviews of prior projects that is how the interpretation has been made in the past is with an additional setback that the second story is found to be compatible with the surrounding area and that is is one way in which the adjacency is avoided um and again it's it's a discretionary call on the planning commission's part thank you for clarifying Mr. Spellman yeah I'd like to clarify that point even further so I think Mr. Brodsky made an even broader point so the this project without looking at adjacent parcels is meeting the standard to allow the design as proposed right the second story is set back to the seven and a half feet the first floor is at five feet meets all the view planes from from west cliff um but the way I understood the 2004 court ruling was that the only reason that that was denied was because there were additional conditions placed on an additional setback right right now we're at the current setback we haven't we haven't given additional setback right for jump in if I'm not interpreting that correctly right he would be this design this any house is going to be required to be at seven and a half feet for that second story going in regardless of the design no no no it could you could be a substandard lot and you could go straight up and a five foot setback okay so that's okay so now we're talking about if you've got the area on the ground floor at the certain percentage you're allowed to go straight up on the on the second floor essentially um maybe I didn't understand your question then I'm just trying to follow that thought through so my point is it complies without talking about the adjacent lot which I think is an additional constraint for this property right the single story on the adjacent lot every else being equal you can't ignore that fact so I don't see anything in the design that is addressing that fact specifically right there were conditions on that 2004 property that reduced the massing on the second story so took square footage out increased setback and provided somehow increased solar access I don't know exactly how that played out because I didn't see any drawings I just read the the description but those three components were part of that ruling I think it it increased the setback from the existing house because that was so non-conforming it met the setback requirements for the zone district so I think they described in that I think that's the crux of the matter because I didn't read it that way and if in fact that's the legal determination because before it was existing non-conforming setback for the single story structure right it was going to be demolished and rebuilt then the new proposed one in fact in this case even had a variance right to setback on top of everything else street side yard setback yeah and is it that same side that we're talking about that's adjacent to the single story home that was a street side yard so that was adjacent to street okay so I guess I'm looking for clarification from staff that some recognition of that single story adjacent structure has been addressed and if you're telling me going back to seven and a half feet is what is addressing that condition then that's that's what I want to hear yes and the privacy windows and the privacy windows okay I'm curious then why the the windows for the let's call it the bar room those were not required to be raised or somehow obscured as well which room looking at that rendering right there the bedroom window is the small window in that elevation right on the second story looking at the four this is the bedroom window right I'm looking at the four windows to the left yeah those weren't required to be reduced I think that that Mike's house probably starts right about here so the privacy issue was was going to be coming out of the bedroom okay thank you for that clarification other other comments from commissioners sorry about the voice okay so if I'm going to go back to that same issue it sounds like the question of the adjacency at the back of the house it's because it is the it's an additional setback plus the other mitigation is that the windows have been raised correct so that's how that's been addressed yes and that additional setback on the second floor it's a requirement of the west clip drive plan so if a substandard lot is in any other r15 zone district other than west clip that seven and a half foot wouldn't apply we would apply something to a second story adjacent to a one story and again it would either be you know setback farther than the minimum or we don't want to see we want to see privacy windows on that side of the house those sorts of things are what we look at thank you yeah so for me that's a conflict right so that tells me it's meeting current code it's not going above and beyond setback because of the adjacent single story structure that's the way I would interpret that right you're meeting you're meeting setback right now you're not you're not giving any benefit to that existing single story structure that's the way I would read the code and I'm hoping to be proven otherwise or told that there's something I can sink my teeth into that says that's not the case on west clip drive it already is a requirement to be seven and a half feet for the second floor whether you're substandard or not right okay right so that's that's correct your your analysis is correct it's it's meeting the setback it's got like an inch and a half or something additional right but it's meeting the setback so you wouldn't place an additional requirement to address the single story adjacent structure this is my question I think the the privacy window is probably the additional thing because it was brought up at the public hearing I wouldn't require anything more than the seven and a half foot side yard setback if it became a problem at the hearing then the zoning administrator I guess that's okay so then my rub is so why does the zoning ordinance specifically call out single story adjacent structures and we just say we don't have to address those because it's what we've done for 20 years that answer doesn't work okay I mean I'm just I'm just saying right I mean I'm thinking of being in both people's shoes here we want a solution that works but we want one that also addresses the code in some manner sure and I would say that the approach that would be taken if this were not in the west cliff drive it would be to put in a solution similar to this with the additional two and a half foot setback and so this is meeting the code and it's also meeting what we would apply in other areas I think one of the just throwing things out there you know one of the concerns that I heard from the appellant here was the location of the garage that is something that certainly the the commission has the ability to say for example set the second story back an additional foot or two feet or whatever it sees as appropriate to address that interface you also have another option that is not they're not mutually exclusive you could do one or the other or both but hearing the neighbor's concern about the location of that garage the driveway length is roughly 25 feet and it's a 20 foot minimum driveway length is that correct so you know you would have the ability to set that garage back further and still meet the applicable criteria that would help to address some of the appellant's concerns and so just putting options out there and again this is all up to the planning commission's interpretation of how they would like to address these and we're bringing some of the the ways that it's addressed in other districts for the commission's consideration I'd like to ask the appellant to come back to the podium I'm not inviting you to um I'm inviting you back but I had a couple of specific questions not inviting you to make a full presentation but what have you what would you wish for with regard to the second story setback and the garage well as far as the second story there's two things there's the additional step back and there's also minimizing the size of the second story so again there's we have there's a specific zoning code requirement of an additional setback how much more would you like to see two feet have you told that to the applicant I haven't we haven't had the opportunity um you know the original outset was he showed me the plans very quickly and I this is months and months ago I tried to suggest well could we do this could we do that and I was told no I'm not making any changes so perhaps the most productive thing would be and I don't know if it's a possibility here but what you mentioned before was to continue so he and I and planning staff could sit down and see if we could come up with something acceptable because there you know there are two factors on the second floor one is that that there's a specific requirement that the second floor square footage be minimized and that has not been done it's been maximized an additional setback would not necessarily reduce the the square footage of the second floor depending on how his architect when it went about it the second point is the setback the third concern is is the garage and my desire would be to just have his backyard there and have the parking around the front if that's not possible perhaps a flat roof on the garage and moving the garage away a bit might mitigate some of my concerns from the main house although it is not necessarily a requirement that you do that with a garage some compromise on the garage might mitigate some of my other concerns and I think the way to address that is just to sit down around the table with his architect thank you thank you well I can I can continue the dialogue as long as I like with it I can only go through the chair but can I not sure you can ask another question I'm done I just wanted to see if I had the right to do that okay generally go through the chair that's great yeah that's fine thank you are there any points yes yeah I'd like to discuss that issue a little further so the notion of minimizing the second floor square footage when and how is that triggered and and how has that been addressed in this project it's in one of the findings on the substandard lot I believe let me see if I can find it I think I see it on your page four of the agenda report I'm thinking it's a finding oh we're under substandard are you looking at I guess I'm just looking for clarification on what you know how does staff see this that he made the point that is it is it based on the fact that it's a substandard lot that the code suggests that you minimize the second floor square footage not that I'm aware of he could be talking about there's a finding it's number 33 says the floor area of second story shall not exceed 50 percent of the first floor except in cases where the first floor constitutes 30 percent or less coverage and that's a regular calculus calculus that everybody goes through when they're looking at a substandard lot you can do it two ways you can maximize the first floor at 45 percent and then you get half the floor area on the second floor or you can put 30 percent of the allowable floor area on the ground floor and then you can have an equal amount on the second floor right I understand that that's a very clear component of the code right there's criteria if you meet it you go up this is I don't know if it's more ambiguous but I'm trying to find the code section that is is telling you to limit the second floor square footage and maybe yes what number what's the finding do you just give us the reference please the attorney's letter interpreting the court case thank you oh okay what it says is I'll just read back down in addition the council found that the two-story rule cited by Mr. Vice did not preclude the city from approving a two-story house adjacent to a one-story house in the Seabright neighborhood but rather simply required the city to sensitively cite second stories with increased setbacks and limited square footage so that's the court's interpretation of the adjacent single-story house restrictions as reported by the city attorney and the the finding that corresponds to that is finding number 33 and again it gives you a choice it's restricting the floor area on the parcel because it's a substandard lot and there's two ways to do it there's a 30 percent with an equal second floor or 45 percent with half the floor area okay so you think that our language is already the limiting factor for the second story square footage I think that finding is okay and that's that's a finding specific to substandard lots right okay all right does anybody want to make another comment on this I know for myself I find the staff's analysis um fine I think that it's that it has met those requirements and I for to my mind the it makes sense um and I am I'm I also think that there's our there's been some enough mitigation so that I think it's conforming so I think we've got basis to deny the appeal um I don't know if anybody else has any discussion that they want to add I agree I'm ready to make a motion ahead so I'd like to make a motion that the planning commission denied the appeal upholding the zoning administrator's acknowledgement etc hold second hey we have a motion and a second is there further discussion yes yeah I you know I appreciate the appellant making these points as well I think we've tried hard at least on the five years that I've been on this commission to write code and make things as flexible as possible which doesn't always result in straightforward and clear answers as we are finding out in cases like this there are some things that are left to interpretation and I think I'm I'm satisfied at this point that they're meeting the intent of the code with with this design thank you any other discussion just a question about the motion is that understood to include the additional one offered by staff for doing it do we need to add that okay the only thing I want to add is that I wish as a commission we could start this off on a better neighbor relations but that's not what we can do as a commission so if we could I would try to do additional one more general comment this isn't meant for the appellant or the the design that's in front of us but we have a design permit on a very prominent piece of property and we still don't have even a site plan that shows one existing structure right we have two lines that show half of mr. Brodsky's property but we don't have a site plan that shows an adjacent parcel this is not a critique of you this is hopefully something for future projects and we as a city need to change our ordinance so that the requirements for a submittal include those components a section showing us this relationship this this view and a critique of the renderings that are shown if you can't show a rendering that is accurate don't show a montage that isn't in scale with with the image that's being presented this image could never exist right you're standing in mr. Brodsky's living room in this view right so you can't show images that are trying to influence somebody's decision that aren't showing reality essentially that's just you know it's it's a it's a tool to critique your design and look at the design but when you throw it in context of a perspective and and it's a reality that I have a problem with that and I think it's it should be something that we're able to look at and and have all the information at our useful moment I guess what I'm looking for so it's 2019 I've been saying this for over a year over two years I think we need to find a path forward to get the language included in our ordinance thank you for that I agree with peter I do as well I was wishing that we could have it for the point of comparison as well mr singleton did you have a comment I agree with mr. Spelman it would be nice to have some contextual pictures oftentimes people come even people who are trying to you know speak against projects and bring misinterpretations and out of context pictures and so having a standard upon the application process seems like a worthy worthy section of code do have thank you any other discussion on the motion with that I'll call for a roll call vote mr singleton aye spellman aye kennedy aye pepping aye misidi miller aye chair conway hi thank you for your attention and careful consideration motion carries okay with that we will move on to the next item on the agenda which is information items before we move on to the planning director's report I'd like to acknowledge that this is the final meeting of commissioner me city miller and commissioner kennedy express my thanks for your diligent service in the time I've worked here it's been a pleasure getting to work with with both of you thank you yes thank you so much for your time and dedication to pushing things forward here your contributions have been well respected and you know timely and and always thoughtful thank you I just want to say I appreciate your cheer and your approach both in thoughtfulness and humor and I've appreciated your perspective on pretty much every item we've discussed so it'll be really hard to be here without you guys you'll be solely missed just out of thanks and say I've learned a lot from both of you appreciate it right thanks everybody yeah thank you so much if there's any ad hoc committees I'd like to start off the director's report just with also an acknowledgement and a gratitude for the eight years of service that both of you have provided on this commission and not only have you given countless hours of your personal time both outside of the meetings and inside the meetings but you and the commission as a whole has has really given very detailed thought and I really have appreciated the commitment that you all have brought to this and the preparedness that you've brought to each meeting and so I want to share that the city is definitely better as a result of your volunteerism and your direct work on this commission so sincere thanks for all the work over the past eight years I've only been a part a couple of them but I know that those have been very productive and that you have certainly contributed a lot during that time and I'm sure the same was true for the many years before I'm afraid we just missed our chance to get that bike share station back didn't we I'll leave you with that so I did want to just update the commission on a couple of items updates regarding council actions that are either recently that have recently occurred or that are upcoming back in mid-November this commission heard the pacific front laurel project going from Taco Bell up towards the metro station with 206 or so residential units and I wanted to report that the city council did approve that project on December 11th I am also wanting to let you all know that there has been a lawsuit filed against that project citing concerns with CEQA and also not only the inclusionary requirements for that project but the inclusionary ordinance approvals that went to this commission in the August timeframe and went to the city council in the September 25th meeting I believe so just wanted to make you be aware of that and then finally you discussed the accessory dwelling unit provisions we talked about them briefly as part of one of the items this evening they came before this commission in mid-October and they have subsequently been in front of the council three times and they've been continued three times because there's been a lot of discussion on other items that has extended those agendas and precluded the ability for the council to consider those and this coming Tuesday there is a time certain 3 30 p.m for those accessory dwelling unit changes so we're looking forward to getting the town the council's take on those and we appreciate the the commission's very thorough review of those and wanted to make you aware of the timing for the council decision that's all I've got for now hey thank you and do we have any subcommittee or advisory body oral reports tonight I don't think that I had a question about subcommittees I do we have vacancies on a subcommittee I guess we'd address that at a later meeting oh we do have the the fortunate vacancies yes the community meetings the commission had elected several representatives and I believe commissioner Kennedy was a part of that and I believe commissioner mark my city miller was also a part of that and so with the next meeting that we have we will agendize an appointment for additional representation on those and as a reminder for the commission for the viewers three planning commission subcommittee members attend the community meetings for select projects the large or significant projects and then report back to the commission with those findings particularly as that project moves forward and to be heard in front of the commission they can bring that perspective of the community into the conversation that was worth noting that will also have those vacancies hey with that this meeting is adjourned thank you