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HomeMy WebLinkAboutPrelim - CC - 02-09-2017DRAFT ' PRELIMINARY MINUTES REGULAR PALM DESERT CITY COUNCIL MEETING THURSDAY, FEBRUARY 9, 2017 CIVIC CENTER COUNCIL CHAMBER 73510 FRED WARING DRIVE, PALM DESERT, CA 92260 I. CALL TO ORDER - 3:00 P.M. Mayor Harnik convened the meeting at 3:00 p.m. II. ROLL CALL Present: Mayor Pro Tem Jonathan Councilmember Kathleen Kelly Councilmember Gina Nestande Councilmember Susan Marie Weber Mayor Jan C. Harnik Also Present: Rudy P. Acosta, Acting City Manager Robert W. Hargreaves, City Attorney Rachelle D. Klassen, City Clerk Russell Grance, Director of Building & Safety Ryan Stendell, Director of Community Development Martin Alvarez, Director of Economic Development Janet M. Moore, Director of Finance/City Treasurer Lori Carney, Director of Human Resources Mark Greenwood, Director of Public Works Frankie Riddle, Director of Special Programs Bo Chen, City Engineer Stephen Y. Aryan, Risk Manager Dan Talbot, Deputy Chief, County Fire Department/Cal Fire Eddy Moore, Division Chief, Palm Desert Fire/Riverside Co. Fire Dept./Cal Fire David W. Teets, Chief, Palm Desert Police/Riverside Co. Sheriffs Department Anthony Baur, Asst. Chief, Palm Desert Police/Riverside Co. Sheriffs Department Grace L. Mendoza, Deputy City Clerk III. ORAL COMMUNICATIONS - A (CLOSED SESSION ITEMS) None PRELIMINARY MINUTES DRAFT REGULAR PALM DESERT CITY COUNCIL MEETING FEBRUARY 9, 2017 IV. ADJOURN TO CLOSED SESSION Reauest for Closed Session: A. Conference with Legal Counsel regarding significant exposure to litigation pursuant to Government Code Section 54956.9(d)(2): Number of potential cases: 2 B. Conference with Legal Counsel regarding Threat to Public Services or Facilities pursuant to Government Code Section 54957: Consultation with Lt. Anthony Baur, Asst. Chief of Police, Palm Desert Police Department/Riverside County Sheriffs Department With City Council concurrence, Mayor Harnik adjourned the meeting to Closed Session of the City Council at 3:01 p.m. She reconvened the meeting at 4:00 p.m. V. RECONVENE REGULAR MEETING - 4:00 P.M. A. REPORT ON ACTION FROM CLOSED SESSION. None VI. PLEDGE OF ALLEGIANCE TO THE FLAG OF THE UNITED STATES OF AMERICA - Palm Desert Charter Middle School ASB Member VII. INVOCATION - Mayor Pro Tem Sabby Jonathan VIII. AWARDS AND PRESENTATIONS A. PRESENTATION TO RECOGNIZE EUGENE COLOMBINI FOR HIS SERVICE TO THE CITY OF PALM DESERT AND ITS HOUSING AND ARCHITECTURAL REVIEW COMMISSIONS, 2009 - 2017. On behalf of the entire City Council, Mayor Harnik presented the engraved crystal clock to Mr. Colombini with sincere appreciation for his time and service on the Housing and Architectural Review Commissions. Mr. Colombini graciously accepted the recognition and thanked the City for the opportunity to be of service. 2 PRELIMINARY MINUTES DRAFT REGULAR PALM DESERT CITY COUNCIL MEETING FEBRUARY 9, 2017 B. PRESENTATION OF PROCLAMATION DECLARING THURSDAY, FEBRUARY 9, 2017, AS "SERGEANT DAVID ADAMS DAY" IN THE CITY OF PALM DESERT. Presentation will be rescheduled to a future meeting. C. PRESENTATION OF PROCLAMATIONS TO INDIVIDUALLY RECOGNIZE PALM DESERT HIGH SCHOOL STUDENTS PATRICIA DAN, MATTHEW CHANG, DANIELLE HJERPE, AND JOSHUA PHILLIPS FOR THEIR FOUR -PERSON TEAM VICTORY IN THE 12TH ANNUAL CHARLES AND PRISCILLA PORTER ACADEMIC WORLDQUEST ON DECEMBER 8, 2016. On behalf of the entire City Council, Mayor Harnik presented proclamations to Patricia Dan, Matthew Chang, and Danielle Hjerpe; Joshua Phillips was unable to attend. Palm Desert High School coaches Patricia Lizza and Lisa Schwarzlose said they couldn't be more proud of the team for their victory, noting that last year they came in second place. Ms. Schwarzlose added that the team will compete nationally on April 25, 2017, in Washington, D.C., and they will also spend four days touring the Capitol. Mr. Chuck Porter, Founder of WorldQuest, stated these students don't always get the glory of being acknowledged in the newspaper like athletes do, so he appreciates the City's efforts in recognizing this team, because they worked so hard to achieve their victory. Mayor Harnik said the Council is very proud of them, and they are also highlighted in the City's Website. IX. ORAL COMMUNICATIONS - B MR. CHARLES MAZET, Assistant Principal at Palm Desert High School, stated they normally present to the School Board a video that basically talks about Palm Desert High School (PDHS) for this year and last year, and Mayor Harnik requested that it be presented to the City. He noted the video is produced by students at Palm Desert High School. The 8-minute video was presented to the City Council. MS. DANIELLE GALVIN, Executive ASB President at Palm Desert High School, gave a special thanks to the Industry Club for producing the video acknowledging PDHS students. The Industry Club allows students to express themselves through cinematography and media and they are very excited to turn it into a pathway at PDHS very soon. As mentioned in the 3 PRELIMINARY MINUTES DRAFT REGULAR PALM DESERT CITY COUNCIL MEETING FEBRUARY 9, 2017 video, everyone at the high school is proud to be an Aztec, stating the school is big enough to offer any program but small enough to make an environment feel like a family. Something not mentioned in the video is that they have received five letters of commendation and one national merit semifinalist. She added that school activities and staff ensure everyone has a place, so no matter the ethnicity, gender, religion, or economic status, everyone was welcomed at Palm Desert High School. Mayor Harnik introduced Palm Desert High School Principal Bob Hicks and Melanie Kiss, a teacher at PDHS who also graduated from the school. She noted Grant Swajian, the first student that spoke in the video, has never missed a day of school since kindergarten. MR. CARL CIESLZKOWSKI, Spyglass Lane, Palm Desert, noted he provided the City Council a 4-page document regarding the City's Country Club Drive & Fred Waring Drive Traffic Signal Coordination Study. He said he travels eastbound on Country Club Drive from Monterey Avenue to Washington Street to go to his physical therapy in Bermuda Dunes. He said he has to stop at every single traffic light, and this didn't just happen once but on more than ten occasions. Because the City of Palm Desert runs like a well-oiled machine, he questioned whether Country Club Drive was part of Palm Desert. He went on to say the 70+ page study cost $80,000, and it was presented in 2010. The study was reviewed by the traffic department and subsequently half of it was implemented going down Fred Waring Drive, which was a stellar success. However, Country Club Drive was omitted, and he's not sure this City Council ever laid eyes on it, and according to his sources, this Council hasn't read it. In his conversation with staff at the traffic department, it was said that because people at Desert Palms Country Club were upset with the prospects of this study being implemented, it was not implemented. Therefore, thousands upon thousands of people on a daily basis were shafted. He said the environmental benefits indicate 50% time saving in traffic and a reduction in pollution. He urged the City Council to please read the document. X. MAYOR AND COUNCILMEMBER COMMENTS TO THE COMMUNITY A. Swina 'N Hops Event - Councilmember Kelly stated that after attending the Event last Saturday, she has continued to hear from countless residents, people of all ages, who are extremely excited about the event. She commended staff involved in the preparation for the event, which seems to have been a huge success. Mayor Pro Tem Jonathan concurred, stating Senior Management Analyst Deborah Glickman and staff, once again outdid themselves, because it was a great event. Additionally, he loves seeing stories in 4 PRELIMINARY MINUTES DRAFT REGULAR PALM DESERT CITY COUNCIL MEETING FEBRUARY 9, 2017 The Desert Sun that puts Palm Desert in the good Tight that it deserves to be. Mayor Harnik pointed out that the Swing 'N Hops Event was part of the First Weekend. B. First Weekend - Wildflower Festival - Mayor Harnik announced that the Festival will be held on March 4, 2017. C. Bump-N-Grind Hiking Trail - Mayor Harnik announced to the many that like to hike in Palm Desert that there is previous legislation sun -setting as they opened the top part of the trail for nine months. There is proposed legislation extending that nine -months period, so it wouldn't hurt to get in touch with Assemblymen for the Valley to let them know that you support it. XI. CONSENT CALENDAR A. MINUTES of the Regular City Council Meeting of January 26, 2017. Rec: Approve as presented. B. CLAIMS AND DEMANDS AGAINST THE CITY TREASURY- Warrant Dated 1/13/2017. Rec: Approve as presented. C. CLAIMS AND DEMANDS AGAINST THE CITY/HOUSING TREASURIES - Warrants Dated 1/20/2017 and 1/27/2017 (Joint Consideration with the Palm Desert Housing Authority). Rec: Approve as presented. D. COMPLIANCE ANALYSIS AND INVESTMENT REPORTS for the Months of November and December 2016 (Joint Consideration with the Successor Agency to the Palm Desert Redevelopment Agency). Rec: Receive and file. 5 PRELIMINARY MINUTES DRAFT REGULAR PALM DESERT CITY COUNCIL MEETING FEBRUARY 9, 2017 E. CITY COMMITTEE AND COMMISSION MEETING MINUTES. 1. Art In Public Places Commission Meeting of November 2, 2016. 2. Audit, Investment & Finance Committee Meeting of November 22, 2016. 3. Cultural Resources Preservation Committee Meeting of September 27, 2016. Rec: Receive and file. F. REQUEST FOR ADOPTION of Resolutions, Setting Forth Findings and Authorizing the Destruction of Paper Records that Have Been Digitally Imaged from The Department of Building and Safety, to Rely on the Electronic Record as the Official Record — Records Dated October and November 2015. Rec: Waive further reading and adopt Resolution Nos.: 1) 2017 - 08 - October 2015 Records; 2) 2017 - 09 - November 2015 Records. G. COMPREHENSIVE ANNUAL FINANCIAL REPORT (CAFR) for the City of Palm Desert and Palm Desert Housing Authority for the Fiscal Year Ended June 30, 2016 (Joint Consideration with the Palm Desert Housing Authority). Rec: By Minute Motion, receive and file the audited CAFR for the City of Palm Desert and Palm Desert Housing Authority for the Fiscal Year Ended June 30, 2016. H. INDEPENDENT ACCOUNTANTS' REPORT on Agreed -Upon Procedures Performed on the Measure "A" Transportation Fund for the Fiscal Year Ended June 30, 2016. Rec: By Minute Motion, receive and file the Independent Accountants' Report on Agreed -Upon Procedures Performed on the Measure "A" Transportation Fund for the Fiscal Year Ended June 30, 2016. I. AUDITED FINANCIAL STATEMENTS of the Palm Desert Recreational Facilities Corporation (PDRFC) for the Fiscal Year Ended June 30, 2016. Rec: By Minute Motion, receive and file the audited financial statements of the PDRFC for the Fiscal Year Ended June 30, 2016. 6 PRELIMINARY MINUTES DRAFT REGULAR PALM DESERT CITY COUNCIL MEETING FEBRUARY 9, 2017 J. REQUEST FOR AUTHORIZATION for the Information Technology Department to Use Vendor List for Fiscal Year 2016-2017 for the Annual Computer Workstation Replacement Program Purchases in an Amount Not to Exceed $40,000. Rec: By Minute Motion, approve the Information Technology Department Vendor List FY 2016-2017 for annual computer workstation replacement program purchases in an amount not to exceed $40,000 — funds are available in the Equipment Replacement Fund. K. REQUEST FOR ACCEPTANCE OF WORK for Contract No. C35690 — 2017 Parking Lot Maintenance Project (Project No. 750-17) (S-2 Sealing and Striping, Palm Desert, CA). Rec: By Minute Motion, accept the work as complete and authorize the City Clerk to file a Notice of Completion for the subject project. Upon motion by Weber, second by Kelly, and 5-0 vote of the City Council (AYES: Jonathan, Kelly, Nestande, Weber, and Harnik; NOES: None), the Consent Calendar was approved as presented. XII. CONSENT ITEMS HELD OVER None XIII. RESOLUTIONS None XIV. ORDINANCES A. For Introduction: None B. For Adoption: None XV. NEW BUSINESS None 7 PRELIMINARY MINUTES DRAFT REGULAR PALM DESERT CITY COUNCIL MEETING FEBRUARY 9, 2017 XVI. CONTINUED BUSINESS None XVII. OLD BUSINESS None XVIII. PUBLIC HEARINGS A. CONSIDERATION OF AN APPEAL OF PLANNING COMMISSION RESOLUTION NO. 2685, DENYING A VARIANCE REQUEST TO REDUCE THE FRONT YARD SETBACK FROM 20 FEET TO 8 FEET TO ACCOMMODATE AN EXISTING CASITA STRUCTURE AT 72700 SOMERA ROAD, Case No. VAR 16-305 (John and Debra Trudeau, Applicants/Appellants). Principal Planner Eric Ceja stated this item was an appeal of the denial of a variance by the Planning Commission. On December20, 2016, the Planning Commission considered a variance request to reduce the front yard setback at 72700 Somera Road by 60% to accommodate an existing casita structure. The Appellants purchased the property in 2010 with a nonpermitted casita structure built on the front yard. After a complaint was received about the structure, City Planning and Code Compliance staff investigated the structure and determined it was not permitted or within the front yard setback. Because the casita was built 8 feet from the front property line, staff was unable to consider other means such as an adjustment to approve the structure; therefore, the Appellants applied for a variance. The City's Zoning Ordinance requires variance applications to be for specific findings. One is that the Code itself doesn't create a practical difficulty or unnecessary physical hardship; there is an exceptional or extraordinary circumstance that applies to the property; or that specific regulations deprives the Appellants property privileges enjoyed by other owners of the same zoning district, and that the zoning variance is not a detriment to public health. The Planning Commission was unable to make these findings and simply denied the application. The Appellant has not presented any new information with this appeal. Staff is concerned that approval of the variance without supporting findings, sets a precedence for other variance applications and other property owners seeking approval of construction that would be in violation of the Zoning Ordinance. Staff has looked at other options such as a Notice of Lis Pendens, but staff is not recommending that option because it doesn't correct the violation. It essentially approves the structure at its location, and if the property were to transfer hands, it doesn't require the new property owner to make the correction. This is the first variance application that was 8 PRELIMINARY MINUTES DRAFT REGULAR PALM DESERT CITY COUNCIL MEETING FEBRUARY 9, 2017 presented to the Planning Commission in 2009, in part, because variances are very tough to obtain and intended to be that way. He noted the City Attorney wished to add some information as well. Mr. Hargreaves added this was an appeal from an administrative decision, a quasi-judicial proceeding in nature. The City Council essentially sits as judge and jury, and because of that, participants have certain due process rights, which is to hear the evidence that goes into the decision and have an opportunity to respond to it. Therefore, at this time, he asked the City Council that if they met with any of the participants, either the Appellant or anyone opposed to it, that they disclose on the record the general substance of their conversations. In particular, any facts that may enter into the decision -making in order to be clear about the evidence that's going into the decision. Councilmember Nestande said she spoke briefly with the attorney representing the Trudeaus, which was more by accident as she was leaving City Hall. She then sent the attorney an email informing her that she would drive by the subject property, which she did and that was the extent of her communication on this case, adding she never communicated with the Trudeaus. Councilmember Weber stated she met with Mr. Ceja and the City Attorney at great lengths. She asked for clarification on whether or not this case could be sent back to the Planning Commission with guidelines for a temporary solution, and when the property changes hands, the structure would have to be brought into compliance. She was advised that this issue would be looked into, but she never got clarification. She asked Mr. Ceja if that's what he meant by Notice of Tenancy. Mr. Ceja responded it was "Notice of Pendency," its' something a building official has the authority to do. Mr. Hargreaves said the term is "Lis pendens," a Latin term, which means there is a notice of action pending, and it's filed on the record to notify there is an issue with respect to the property that needs to be addressed. So when a home is purchased, it will show up on the title report and the owner is on notice that something needs to happen. Councilmember Kelly responded that under the heading of disclosures, she had a brief conversation with the Appellant's attorney who primarily wanted to make sure she could assess what seven feet in length looked like. Also, she and Mr. Ceja met with Ms. Debra Trudeau, and in addition to reviewing the facts, she learned a little bit of Mrs. Trudeau's family and background, which she believed didn't have any bearing to the case directly. 9 PRELIMINARY MINUTES DRAFT REGULAR PALM DESERT CITY COUNCIL MEETING FEBRUARY 9, 2017 Mayor Pro Tem Jonathan said he received a request for a meeting, but after consulting with Counsel, he declined. Mayor Harnik said she and Director of Community Development Ryan Stendell met with Mrs. Trudeau, and on one occasion spoke telephonically with the Appellant's attorney, and on a separate occasion for a very brief meeting. Councilmember Weber stated staff has used the phrase several times that when the property was acquired, records indicated the casita was not permitted. She asked if there was any indication to the Appellant that it would never be permitted. Because if she saw something that said not permitted, she would think that if she bought the property, she could then get the permits. Mr. Ceja explained the casita was unpermitted and built by the previous owner, then the property changed hands in 2010. A notice or letter was prepared by City staff saying that the structure needed to be permitted; the lender was aware of it at the time. Councilmember Weber commented that it didn't really indicate that it would not be permitted the way it is, but that it was possible to permit it. Councilmember Kelly said it might be important to look at the final paragraph of Mr. Bagato's letter of June 17, 2010, which addresses or at least makes notice that the plans for the structure calls for it to be 15 feet from the property line, so that was one piece of information. Councilmember Nestande added she understood the original owner measured from the curb, which was a mistake. So it looks like the original owner made an innocent mistake that now these new owners, the Trudeaus have taken on. Mr. Ceja replied he couldn't speak to the innocence of the previous owner. Councilmember Nestande said that's what she thinks happened, because he applied for 15 feet, but he measured from the curb. Councilmember Kelly asked for clarification on whether the structure was 15 feet from the curb. Mr. Ceja displayed an aerial photo from the City's system, and sometimes the lines don't align properly, but what you have from the curb to the property line is seven feet and an additional eight feet to where the structure is, adding Council won't be able to see it because of the hedge shown in the 10 PRELIMINARY MINUTES DRAFT REGULAR PALM DESERT CITY COUNCIL MEETING FEBRUARY 9, 2017 photo and the offset to the property. Responding to question, he confirmed the black line on the photo represents the property line. However, the photo isn't aligned properly, so the property line is a little closer to the curb. Mayor Pro Tem Jonathan noted he pulled and read the Planning Commission minutes from their meeting of December 20. He asked if it was possible to move the structure, add new footings, etc., from it's present location to where it would be in compliance, because according to the Appellant the cost is $20,000 to $30,000. Mr. Ceja agreed the Appellant told the Planning Commission it was possible to relocate the structure, but at a cost. Mayor Pro Tem Jonathan added that it wasn't clear in the minutes, but there is a $12,000 cost for new architectural drawings, site surveying, etc., which apparently is included in that cost and would be incurred regardless. Mr. Ceja responded that during the Planning Commission hearing, the Appellant threw out a couple of numbers that were for two or three options. One was to tear it down and the other was to relocate the structure. Councilmember Kelly interjected, stating she was looking at the same minutes, and the $20,000 to $30,000 estimates did not include building plans, site survey, or permit fees. Mayor Pro Tem Jonathan said he understood that it did. Also, he questioned if the setback was currently eight feet from the property line. Mr. Ceja confirmed it was. Mayor Pro Tem Jonathan added Code requires the setback to be 20 feet from the property line. Mr. Ceja said that was correct. Mayor Pro Tem Jonathan noted that in 2005 the previous owner said he would like to move it, but instead of moving it 20 feet from the property line, he requested 15 feet from the property line. Mr. Ceja explained the previous owner applied for what is called an Adjustment, which can be done administratively by staff. He said staff did approve the adjustment from the 20-foot setback to a 15-foot setback. Councilmember Kelly pointed out that was prior to construction. 11 PRELIMINARY MINUTES DRAFT REGULAR PALM DESERT CITY COUNCIL MEETING FEBRUARY 9, 2017 Mr. Ceja answered yes. Mayor Pro Tem Jonathan asked if it was staffs recommendation to bring this structure into compliance by having it moved or somehow be in compliance with a 20-foot setback from the property line. Mr. Ceja responded that since the City had an approved adjustment, staff would ask that it at least be at the15-foot setback. Mayor Harnik declared the public hearing open and invited public testimony FAVORING or OPPOSING this matter. MR. TRUDEAU, Appellant, stated he appreciated everyone's patience through this long process. He said he would go through a couple of points relevant to facts listed in the staff report, make comments relating to them, and then go back to the original variance application. He was hopeful to be as quick and precise as possible and then go to questions if it was allowable. He provided a handout to the City Council, which included the real estate listing from the original sale in 2010 and copies of letters from the City, which he will reference in his presentation. He said the subject structure has been in its present location since 2004, which is confirmed in the staff report where it states, "... that between January and April of 2004, the structure was already in its place." He said if anyone goes to Google Earth, you can see the exact same roof -line structure, and there is no way to support a roof -line structure without the outside walls. Since that point, nobody had complained about the location of this particular structure, except on one occasion, which was January 28, 2015, when an anonymous complaint came into the City, which is when he first became aware that this structure was a problem. At that time, he came before the Council and was very upset, because he was learning a lot of things he didn't understand when he purchased the property. He may have spoken a little quick on that day and he probably didn't make a lot of sense, but he was still educating himself. Basically, what's happened, since that January 28, 2015, complaint, nobody else has come forward, not even the original complainer. Recently, on two occasions, staff has notified the public and sent letters to residents that are 400-feet-radius from his home, and published the matter in The Desert Sun. As he goes through the staff report, he didn't want to sound or give the appearance that he's accusing anyone, because everyone, including Mr. Ceja have been fantastic during this entire process. However, the two public notices include wording that he would consider inflammatory or leading. The public notice states, "The structure was built illegally and the owners have to comply." He said if any of his neighbors are reading that public notice, it makes it obvious that he did something illegal, and he maintains to this date that he didn't. He explained that since February 19, 2015, when he was given notice by the City, he followed a process to try to rectify the situation, and he's done 12 PRELIMINARY MINUTES DRAFT REGULAR PALM DESERT CITY COUNCIL MEETING FEBRUARY 9, 2017 everything that has been asked of him and in the time order requested by two previous City Managers, stating he hasn't had a chance to meet the new one. During that time, he has amassed, what he would consider a financial hardship on this particular case. He has spent a lot of money on Legal Counsel and bearing the Application, and to date none of that money has gone into the structure. For 13 years the structure has been untouched, with the exception of a toilet he installed for his children use when they were much younger. He called attention to the letter dated February 19, 2015, from Code Compliance Officer Johnny Terfehr. It's the letter that precipitated this entire proceeding, which references Case No. 15-268, and states, "It has come to the City's attention that a structure exists that was not approved and permitted by the City." It's important to note that because the structure was brought to the City's attention, staff now had to look into it. Next, is the staff report dated February 9, 2017, which he believes has incorrect information in five areas, which he believes makes the document invalid. Therefore, he will recommend that his variance request be approved. The five areas with inaccurate statements are as follows: 1) Paae 2 of the staff report, under Executive Summary, first paragraph, third sentence, it states, "The structure was built without permits in 2005, and the City has pursued corrective action ever since." According to staff notes, the structure was built sometime between January and April 2004, and if you follow the journal, the case was closed on September 21, 2005. There are no additional staff notes from that date until he bought the property, but there are no notes on the transaction of the property; notes resume January 28, 2015. Therefore, to claim the City has been pursuing corrective action since 2005 is incorrect information, because for ten years, the City didn't do anything relating to this structure. 2) Paae 3 of the staff report, under Analysis - A. Proiect History, first paragraph, fourth sentence, states, "Because the structure does not have a building permit, a notice to stop work was issued by the City's Building and Code Departments." The property owner (who at the time was not the Appellant, it was Vladimir Pravdic) refused to correct the violation, the property then went into foreclosure, City staff was unsuccessful in having the banks correct the violations, and several years later the property was sold." He called attention to the original MLS listing for the sale of the property, and it clearly states this was a short -sale, it was not a foreclosure. To his knowledge, the banks never took possession of this home. He purchased the home from the former owners, so there was no way the City could have been going after the banks, because there was no bank to go after. The City should have been going after the former owner to correct the violation. 13 PRELIMINARY MINUTES DRAFT REGULAR PALM DESERT CITY COUNCIL MEETING FEBRUARY 9, 2017 3) Page 3 of the staff report, under Analysis - A. Proiect History, second paragraph, second sentence, it states, "Prior to sale, the City's Planning Department issued a letter to the lender informing them that the structure was unpermitted and that building permits were required. "To him, that language suggests it was directing somebody to get permits on the building. In Council's packet, the letter dated June 17, 2010, to Richard Weintraub, the mortgage broker at the time, does not include language that directs the lender or anyone to actually get permits. Based on this letter, their mortgage company which was Met Life, responded and actually funded the mortgage allowing them to buy the home. During that process, no one from the City directed them to get permits on the structure. The letter was simply a guide on what needs to be followed in order to get building permits for the structure. 4) Page 3 of the staff report, under Analysis - A. Proiect History, second paragraph, third sentence, it states, "In 2015, a special inspection of the structure was performed by the City's Building Inspectors and Planning Department. It was determined that the structure was built eight feet from the front property line and could not be permitted at its current location." He said this wording was incorrect, because in the July 22, 2015, letter from Daniel P. Crawford Jr. on the inspection of the property, nowhere does it mention that the building could not be permitted at the current location. It also doesn't reference anything about the setback or the 8-foot dimensions as a problem of the setback. He said he went through the Application process because former City Manager John Wohlmuth suggested it would be the next step in the process and there needed to be a Special Spin Inspection performed. Therefore, he filled out the Department of Building and Safety form, adding he had a receipt of an inspection record. Prior to the inspection, he laid out all the existing plans he had from the former owner for 2003, 2004, and 2005 along with all the City documents he had. When Mr. Crawford came to his home, the first thing he said, "1 already know everything, I don't need to look at that stuff." He said they spent 15 minutes inside the structure where Mr. Crawford coached him through the things the structure would need in order to become code compliant with energy codes. Mr. Crawford pointed out that the sockets were closed, the roof would need to be ripped out in order to see how much insulation would be needed, and the windows were no longer energy compliant. He said they didn't walk around the structure or measure a thing. However, Mr. Crawford's letter states, "The permit application provided was incomplete and did not identify the square footage." He didn't fill out a Permit Application, so he didn't know what Mr. Crawford was referring to. Additionally, the letter further states, "The plans 14 PRELIMINARY MINUTES DRAFT REGULAR PALM DESERT CITY COUNCIL MEETING FEBRUARY 9, 2017 submitted were incomplete providing architectural information lacking sufficient information." Again, he didn't know which plans Mr. Crawford was referring to, because he didn't look at the ones he had and none were passed over to Mr. Crawford. He called attention to the Analysis section in the same page, second paragraph, last sentence, it states, "It was determined that the structure was built eight feet from the front property line and could not be permitted," which is not true. 5) Paae 3 and 4 of the staff report. under Analysis - A. Proiect History , at the very bottom of the page, it states, "The City has continued to reinforce its decision that the structure never obtained permits, was built in the wrong location, and that staff could not approve the structure." In the handout he provided to the City Council are three letters he received from previous City Managers of the City of Palm Desert. The first letter is from May 6, 2016, which directs him to do the Spin Inspection, and it also provides him with three options, one of which is to apply for a variance to the setback requirements. From that point on until December 2016, no one has given him, in writing or verbally, a definitive answer that he would not be able to permit the structure in its current location. It wasn't until he read the Planning Commission's staff report, which is when he first learned the variance would not be approved. This proves they were not holding a stance from the Spin Inspection by saying they have been continuing to reinforce the decision. All along he's been going off the City Manager's advice that he could apply for a variance, which was extended a year later on May 19, 2016, and extended again on August 23, 2016, by Interim City Manager Justin McCarthy. Based on the above mentioned inaccurate statements, he requested that the City Council approve his variance request. Lastly, Vladimir Pravdic applied for an Adjustment to the setback, which was approved by the City on December 19, 2005. The Adjustment Application asks the applicant for four variance criteria, which are the same four questions that have been answered on five occasions. Mr. Vladimir Pravdic was the first instance, the 2nd instance was when he (Appellant) applied for a variance in October 2016, the 3`d instance was when the Planning Commission requested the same, then they responded. His Attorney then responded to the Planning Commissions view of their response, and then again Planning Commission asked them to respond. The responses have all been for the same structure in the same spot where it has been sitting for 13 years. However, 13 years ago, the City approved the same request based on the same criteria for the same building sitting in the same spot. At this point, he's respectfully asking to end this process now and look for a way to stop him from spending any 15 PRELIMINARY MINUTES DRAFT REGULAR PALM DESERT CITY COUNCIL MEETING FEBRUARY 9, 2017 more money and try to actually do something that won't hurt the other residents in the City of Palm Desert. Mayor Harnik questioned why the case was closed in 2005. Mr. Ceja said he didn't know. Councilmember Nestande said the information provided by the Appellant was very informative, adding she read up on it, driven by the home, and she didn't have any further questions. Councilmember Kelly stated that included in her packet were estimates that the Appellant received for potential work. She asked if the Appellant had an estimate to simply demolish the structure, because she understood the estimates were incomplete. MR. TRUDEAU apologized for the original $20,000 to $30,000 estimates he mentioned at the Planning Commission, because they were ball park figures; However, in the summer of last year, he obtained a quote from a contractor for $12,000 to do all the necessary paperwork for a proper permit, and then they speculated it would be about $20,000 to $30,000 to roll the building. Councilmember Kelly stated the cost to move the structure was in the packet. Her question was if the Appellant had received a bid to demolish the structure, adding that the Appellant was not obligated to provide it. MR. TRUDEAU said he did receive one and the cost was $68,250. Further responding, he said the bid came to him from Sun Plug, Inc., the same company that installed solar on his home, who works very well with the City, because that process was seamless. He said the total cost for demolishing the structure is $81,120. Councilmember Kelly noted that if the Appellant was referring to the estimate in the packet, it includes construction of a new pad and a new 325 square -foot building. Therefore, it was not just an estimate for demolition. She reiterated the Appellant was not obligated to provide the estimate, she was just making sure Council had all the information available. MR. TRUDEAU agreed he didn't have the exact demolition cost, because after the Planning Commission meeting, he had Sun Plug come to his home and learned that inside of that seven -foot strip is all the plumbing under the infrastructure of the house, which is why it's so expensive. He said all the plumbing would have to be ripped out and rerouted. He said they looked at every angle possible, including turning the entire thing 180 degrees on rollers in order to use the same slab, but it can't be done because then they are 16 PRELIMINARY MINUTES DRAFT REGULAR PALM DESERT CITY COUNCIL MEETING FEBRUARY 9, 2017 faced with a grading situation, which grades down toward the pool. He said one will have to either pour more footings and bring earth in and have a retaining wall or build the whole thing up. Even though the actual moving of the structure is going to be on rollers and it's supposed to be fairly simple, the issues are with the underground portion under this slab with the huge footings, because its build super solid. Mayor Pro Tem Jonathan asked if the casita was to be demolished, but the slab remained and used as a patio or whatever, would that be in compliance with City Code. Mr. Ceja said it would. Further responding, he explained the structure itself is what doesn't meet the setback, but the slab could stay in place because it would no longer house a building on top of it, similar to a driveway or patio condition. MR. TRUDEAU said he believed the remaining slab would actually present a physical hardship. He said if the structure is removed, he would then have an elevated slab that has electrical and plumbing underneath. It will cost more to re -grade the site to make it flat or pour more concrete to make a basketball court to make use of the space. But if he is to remove the structure, it will create a physical hardship in that corner of the property. Mayor Harnik asked if the plumbing underneath the slab was ever permitted. MR. TRUDEAU said he knew there was a permit that involved electrical, but he didn't know about the plumbing. Mr. Ceja responded that in 2003 a permit was issued to run a gas line to the location, which was the only permit that was found. Further responding, he confirmed the plumbing and electrical has not been permitted. MR. TRUDEAU said he had a receipt from October 2, 2003, that indicates a $25.00 fee was paid for a Plumbing Permit, noting a base fee in sub -electrical permit, including base fee and sub -panel plumbing permit, and repairs after drain -met waistline. Mayor Harnik asked if the receipt indicate it was inspected after building. MR. TRUDEAU said he didn't know. Mayor Pro Tem Jonathan said it might be a fee for a permit application, not necessarily that a permit was issued. MR. TRUDEAU replied he wasn't sure. 17 PRELIMINARY MINUTES DRAFT REGULAR PALM DESERT CITY COUNCIL MEETING FEBRUARY 9, 2017 Councilmember Kelly pointed out that the Journal reads that on May 9, 2005, there was a building permit application for plan check request for plumbing and electrical. Mayor Harnik said she didn't see anything that states the request was followed through on. MS. MONICA AMBROSS, Attorney for the Appellant, stated she wanted everyone to understand what seven feet looked like, so she brought with her sticks that were seven feet in length for Council to see. She said the subject structure has been in place for 13 years, adding that the City Council has the latitude, since it establishes zoning requirements, to grant a variance for the Trudeaus who are not the people that caused the issue. Tearing the structure down, which hasn't been discussed, would create a financial hardship and burden to the Trudeaus and to the property, because it would require taking the slab out, the 12-foot Ficus trees, and making it visible. In her legal opinion, because the Trudeaus have children, leaving a slab would create a nuisance and a danger to kids tripping and getting injured, so that was not a viable alternative. In looking at the four different requirements for granting the variance, which she understood the Planning Commission had to be exact on and also indicated they were going to see that this case went to the City Council to hopefully get the variance granted. She said the unnecessary physical hardships have been discussed enough, but again, they are removing the entire structure, the cost involved, disruption to the neighborhood, and the extraordinary circumstances or conditions of the property involved. She said staff made the argument that it's a big piece of property on two lots, but it's actually one parcel. There is only one other parcel in the area that is two lots that were put together. MR. TRUDEAU said it was not put together, it's just one property owner who actually owns the dirt lot next to their house. MS. AMBROSS said she was referring to the neighborhood, because it was her understanding that one of the major concerns is that this would be something that would be inconsistent with the neighboring area, and there really isn't any property similarly situated to the Trudeaus that would allow for a casita to be built. Again, asking the Trudeaus to remove or relocate the structure would deny them the enjoyment of being able to use it. She didn't think that the cost of relocating or tearing it down was advantageous to them, and it's expensive. Further, staff didn't have an issue that it was a detriment to the public's health, safety, and welfare. She pointed out that when you look at the Adjustment Application criteria, some of it wasn't even addressed when the previous applicant was granted the 5-foot setback. She asked the City Council to approve the variance and override the Planning 18 PRELIMINARY MINUTES DRAFT REGULAR PALM DESERT CITY COUNCIL MEETING FEBRUARY 9, 2017 Commission's decision, who seemed very much to want to grant the variance, but couldn't. With no further testimony offered, Mayor Harnik closed the public hearing. Councilmember Weber stated she spoke with Mr. Ceja and the City Attorney to see if instead of paying now to have the structure demolished and so forth, the Appellant would technically be paying at the end when they sell the property, because at that point, they won't be able to sell for what they think their home might be worth, including the casita. It seems that with all the differences of opinion and the different ways things were handled, which wasn't exactly the way it's normally done, Council should grant the variance. However, she wouldn't do it unless that caveat was inserted. Mr. Hargreaves explained that the City would need an agreement by the property owner, allowing the City to impose a condition on the property that would have that requirement, but the City couldn't unilaterally impose that kind of a condition on the property. Councilmember Weber said that if the property owner would agree to such an arrangement, the City wouldn't be setting a precedent, but trying to solve an issue that has gone on for a great length of time. Councilmember Nestande stated that such an agreement would also put a financial burden on the current owners when it came time to sell, adding they would have to sell at a discount compared to other properties. Councilmember Kelly said it's been suggested that the City Council's role is different from that of the Planning Commission, but she understood it was still incumbent upon the Council to use the same zoning standards. Mr. Hargreaves explained that the Planning Commission is required to apply the standards that the City Council established. The City Council has more latitude to ignore their own standards for equitable kinds of reasons. There is nothing in the Code that provides direction to the Planning Commission that would allow them to grant a variance under these circumstances, because this clearly does not meet the typical definition of a variance. By tradition, city councils have the authority to exercise a certain amount of discretion in terms of applying the black letter of the law to a particular set of facts, but it wouldn't be unprecedented if the City Council, viewing the equities and fairness of a particular situation to decide, in this case, not to impose a strict interpretation of the law. Councilmember Kelly stated that one thing that troubles her, having driven by the property, is that there is currently a high Ficus hedge which largely 19 PRELIMINARY MINUTES DRAFT REGULAR PALM DESERT CITY COUNCIL MEETING FEBRUARY 9, 2017 conceals the casita and the yard that may not be there forever. It may well be the Trudeaus intention to keep the trees, however, this past year Council saw Tots of trees die because of beatles and other threats, so it's entirely possible that despite the desire to keep them, they won't be there forever. And, if the City grants the variance, subsequent owners wouldn't be obliged to keep those trees. Therefore, the City would be opening up the possibility, at some point in time, for the casita to be very close to the property line, which is very much at odds with the standard, ambiance, and appearance that prevails on that street. Recognizing the very special facts of this case and how troubling it is for the Appellants, granting a variance is nonetheless troubling to her for those reasons. Mayor Pro Tem Jonathan said this was a tough situation, one that the City Council, Planning Commission, staff, and a number of city managers have struggled with, and hopefully this evening a resolution can be reached for everyone's sake. While he had great sympathy for the bind that the Appellents are in, what is compelling in his mind, is that Mr. Trudeau by his own admission knew that the casita wasn't in compliance when he purchased the property in 2010. He commented that he didn't remember much from business school, but did recall the Latin term "Caveat Emptor," which means "Buyer beware." Therefore, this is a situation where something is not in compliance and who should bear the burden. The fact that there was knowledge upon purchase of the property is compelling in his mind. Furthermore, upon extensive review by Planning Commission and staff, there have been no findings in support of a variance. If Council were to grant the variance, in his mind, they would be doing it purely arbitrarily, and the problem is that it creates a precedence. He's fearful that others will come before the Council pointing out that a variance was granted without findings to support it, which will be a tough question to answer. While he's troubled by the potential difficulties associated with bringing this structure into compliance, he believed the Appellants had a number of options. Maybe none of them are perfect, but one way or another the responsibility for the current situation falls with the property owner. Councilmember Weber said she hasn't seen evidence that the owner was told this structure would not be permitted, because it's not in compliance, which is why she kept asking for that clarification. If the owner had any assumption that he could get permits, then he would continue with the purchase. She asked if that was a reasonable possibility that it stated it wasn't permitted, but it doesn't say it will never be permitted because it's too close to the property line. Mayor Pro Tem Jonathan said it was a good point, but its common knowledge that when something is not permitted, in order to get a permit, it has to be in compliance, noting he's had personal experience with it, 20 . PRELIMINARY MINUTES DRAFT REGULAR PALM DESERT CITY COUNCIL MEETING FEBRUARY 9, 2017 including his 16 years on the Planning Commission. He reiterated it was common knowledge that when something is built without a permit, to get a permit, you don't just apply and get it. There has to be an inspection and the property has to be brought into compliance with the zoning and other building codes. Therefore, knowledge at the time of purchase that the casita was not permitted, should have been a head ups to the buyer. Councilmember Nestande said that when Mr. Trudeau was making his case about how he really didn't find out until 2015 that the structure wasn't going to be allowed to be permitted and that the former City Manager had discussions with Mr. Trudeau stating if he did these certain things, the structure would get permitted. Mayor Pro Tem Jonathan replied he wasn't sure they were talking about the same thing. What he's referring to is that in the Planning Commission minutes, based on Mr. Trudeau's testimony, he was aware that the casita was not permitted when he purchased the property in 2010, stating it's in all the paperwork. Councilmember Kelly stated that when there is an awareness that there is an unpermitted structure on a property when thinking about buying, it's a factor you're called to consider in arriving at the purchase price. It creates an unknown, the worse case scenario always being that it won't be possible to keep that structure. Mayor Harnik re -opened the public hearing to allow Ms. Ambross to add to her testimony. MS. AMBROSS stated that while a Lis Pendens is not something that would be acceptable to the owners, because they wouldn't be able to refinance and/or create an issue on the title, what would be acceptable and in everyone's favor, is a covenant that the Ficus trees or screening of the casita will always be there, and it gets recorded against the property as a solution. So if a Ficus tree dies, which she believes they have and then replanted, some other screening device is erected so that the casita in not visible and that covenant can run with the land so that subsequent owners will have that obligation as well. With no further testimony being offered, Mayor Harnik closed the public hearing. Councilmember Nestande called attention to the letter that former City Manager John Wohlmuth signed which offers the Appellant options, and one of them is to apply for a variance to the setback requirements. 21 PRELIMINARY MINUTES DRAFT REGULAR PALM DESERT CITY COUNCIL MEETING FEBRUARY 9, 2017 Mayor Harnik commented this was the worse kind of case before the City Council and Planning Commission, which is what burns heart muscle. This case has been difficult for everyone on both sides. She went on to say that the property was sold on June 29, 2010, and the letter to Mr. Richard Weintraub of June 17, 2010, clearly speaks of an unpermitted guest home. As mentioned by Councilmember Kelly, when you come into something that is not permitted, you have to look at the range of options and/or what might occur. Seemingly, there's never been plumbing or electricity permitted, but there has been a full solar installation permitted and installed on the house, but the issue with the guest home has not been addressed. She said Council has been put in a position where it has to make a decision that is going to be in the best interest of the entire City and General Plan Update to ensure compliance, including doing the right thing for the entire community, not just for today, but down the road and into the future. Councilmember Weber stated that if the variance is approved, the Appellant can proceed with obtaining all the other permits, because being in compliance with the electrical and plumbing is a safety issue, but the location of the casita did not seem to be a safety concern for her. Mayor Harnik agreed, however, it will require far more permits. Councilmember Weber moved to approve the Applicant's variance request with the understanding that they will obtain the necessary electrical and plumbing permits. Motion was seconded by Nestande and the motion failed on a 2-3 vote (AYES: Nestande and Weber; NOES: Jonathan, Kelly, and Harnik). Mayor Pro Tem Jonathan moved to waive further reading and adopt Resolution No. 2017 - 10, upholding Planning Commission Resolution No. 2685, denying an appeal by the Applicant for a variance to reduce the front yard setback from 20 feet to 8 feet to accommodate an existing casita structure located at 72700 Somera Road. Motion was seconded by Kelly and carried by a 3-2 vote (AYES: Jonathan, Kelly, and Harnik; NOES: Nestande and Weber). PLEASE NOTE: Councilmember Susan Marie Weber left the meeting at 5:31 p.m. XIX. REPORTS AND REMARKS A. CITY MANAGER 1. City Manager's Meeting Summaries Report for the Period of January 16-27, 2017. With City Council concurrence, the Meeting Summaries were received and filed. 22 PRELIMINARY MINUTES DRAFT REGULAR PALM DESERT CITY COUNCIL MEETING FEBRUARY 9, 2017 B. CITY ATTORNEY None C. CITY CLERK 1. Announcement of Upcoming City Council Study Sessions: a) Friday, February 17, 2017 — 8:00 a.m. — Desert Willow Golf Resort, 38995 Desert Willow Drive, Palm Desert, regarding City Manager Workplan. b) Thursday, February 23, 2017 — 2:00 p.m. — Administrative Conference Room, regarding Special Events. Ms. Klassen noted the upcoming Study Sessions for Councilmembers, and they so noted. D. PUBLIC SAFETY 1. Fire Department None 2. Police Department Capt. Teets introduced Sgt. Michael Gaunt as the Palm Desert Police Department new Administrative Sergeant. Sgt. Gaunt was chosen to replace Sgt. David Adams who was recently transferred to the Indio Jail after two years in this assignment. Sgt. Gaunt is a 17-year veteran of the Sheriffs Department and has spent his entire law enforcement career in the Coachella Valley and is no stranger to police work in the City of Palm Desert. He holds a Master's Degree is Business Management from Redlands University and is married with three children. He will work closely with Lt. Baur and City staff to ensure the needs of the City and its Police Department are being met. Sgt. Gaunt said he wanted the City Council to know that he was one of the luckiest guys in the Department. He's lucky for being married 20 years and having three amazing kids, and lucky to work for Palm Desert. He said there were a lot of expectations from his Captain and the City, and he's going to do everything he could to raise the level of service and engagement with the public. He added that he's worked a lot of assignments and they have all been rewarding, but this was 23 PRELIMINARY MINUTES DRAFT REGULAR PALM DESERT CITY COUNCIL MEETING FEBRUARY 9, 2017 the most exciting position of his career and he appreciated the opportunity. Mayor Pro Tem Jonathan stated so often new personnel is tied into Palm Desert, in that they live and have family here, which makes such a huge difference and it's appreciated. Capt. Teets said he appreciated the acknowledgment, because they try to select someone that will fit very well with the City, which is one of his first considerations aside from having the desire to serve. They gave the same consideration with Assistant Chief Baur and they will continue to do so. Mayor Harnik commented that the "Deputy for the Day Event" was very special. There was a young boy the age of 11 who was going through treatment for Leukemia and the Department made him Deputy for the day. It was wonderful to see police building relationships and trust with the community. Capt. Teets said it was a lot of fun, stating the boy was allowed to sit on the motorcycles and get in the cars and work the sirens. He also got inside one of the armored vehicles and made a mock arrest. Mayor Pro Tem Jonathan added that the Department does events such as "Shop with the Cop," "Coffee with the Cop," etc., and the City Council hears stories of how officers take out of their own pocket to give families gas money so they can get home. He said it's because of those things that this community is so respectful and grateful of public safety officials. E. MAYOR AND MEMBERS OF THE CITY COUNCIL 1. Councilmember Susan Marie Weber's Meetina Summaries Report for the Period of January 16-29, 2017. Councilmembers noted the printed report provided in the packet and concurred to receive and file it. 2. City Council Comments: a) Audit of the Citv's Financial Report - Councilmember Kelly noted the Consent Calendar included the audit for the City's Annual Financial Report, stating it was a pleasure to receive an audit which commends staff for the excellent work they do. She expressed her appreciation for Director of Finance Janet 24 PRELIMINARY MINUTES DRAFT REGULAR PALM DESERT CITY COUNCIL MEETING FEBRUARY 9, 2017 Moore and staff, which is supported by all the Departments and the excellent work of the City in assuring good financial practices. Mayor Pro Tem Jonathan concurred, stating he was new on the Audit, Investment and Finance Committee. He said the Committee received the audit report and they went through it in detail, adding that many cities wished for the same results. 3. City Council Requests for Action: None 4. City Council Consideration of Travel Requests and Reports: None XX. ADJOURNMENT With City Council concurrence, Mayor Harnik adjourned the meeting at 5:44 p.m. ATTEST: RACHELLE D. KLASSEN, CITY CLERK CITY OF PALM DESERT, CALIFORNIA JAN C. HARNIK, MAYOR 25