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Home My WebLink About06-16 Draft Minutes /"�� MINUTES PALM DESERT PLANNING COMMISSION '�- , . TUESDAY — JUNE 16, 2009 * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * � * * * * * * * * * 1. CALL TO ORDER Vice Chairperson Limont called the m ti to or 6:00 p.m. II. ROLL CALL Members Present: Connor Li Vice Sonia Camp r ' at 6:03) N cy DeLuna midt Members Absent: Va nn , Staff Pre ` Lauri irec ommunity Development �"'^ ave E , City Attorney ony Ba , Principal Planner evin Swa Assistant Planner dr� z, Senior Code Officer � Ton�� e, Administrative Secretary III. �,� PLE F � GIANCE .� Commissi Sch led in the pledge of allegiance. � IV. �� MMARY�� COUNCIL ACTION � Ms. summarized pertinent May 21 and June 11, 2009 City Council actiori (Commissioner Campbell arrived). V. ORAL COMMUNICATIONS None. VI. APPROVAL OF MINUTES Request for consideration of the May 19, 2009 meeting minutes. MINUTES PALM DESERT PLANNING COMMISSION JUNE 1642009 Action: It was moved by Commissioner Campbell, seconded by Commissioner Schmidt, approving the May 19, 2009 meeting minutes. Motion carried 4-0 (Chairperson Tanner was absent). VII. CONSENT CALENDAR A. Case Nos. PP/CUP 06-03 and TPM — GERALD FORD BUSINESS PARK, LLC, Applicant Request for approval of a first o ar ti xtension for a precise plan / conditional us mit to con a 100,500 square foot business par a tentative p map to subdivide a 6.1-acre si 13 parcels at 75- erald Ford Drive. B. Case No. PP 07-14— WILL NG, Applicant Request for a a first, ear time extension for the Jensen's S pi ter re I which included a precise plan am ent exte remodel, and a mi � ion to a i ' , uare foot retail center . site d by Hig ay 111, Larkspur Lane EI Pa . The odel includes three architectural ��_- lements 4 et in hei Project location: 73-547 - 73-613 way�� y � 1 La ur Lane, and 73-540 - 73-580 EI n: � It was d mmissioner Campbell, seconded by Commissioner \ Schmidt,� ovin - Consent Calendar by minute motion. ommissio DeLuna asked for and received confirmation that Consent ` ndar B was the Jensen's Center asking for a one-year c She asked if any thought had been given to phasing. For insta � e parking lot is in deplorable condition. She asked if there was a pos ility that they would phase that. Ms. Aylaian said yes. The developer spoke to her and indicated that he would like a one-year extension and has plans to come in and talk to staff about phasing, in particular because he believed the parking lot needed to be addressed sooner rather than later, whereas there isn't a high demand right now for the gross leasable area. So he was looking at different ways he might want to phase the project. Staff would similarly encourage him to finish the 2 MINUTES PALM DESERT PLANNING COMMISSION JUNE 16� 2009 parking lot improvements. Commissioner DeLuna asked if that needed to be stated in some way. Ms. Aylaian said no. Vice Chair Limont noted that there was a motion and a second and called for the vote. Motion carried 4-0 (Chairperson Tanner was absent). VIII. PUBLIC HEARINGS Anyone who challenges any hearing matt court may be limited to raising only those issues he, she or so e raised at the public hearing described herein, or in written resp` ;, ce delivered to the Planning Commission at, or prior to, ublic hear . A. Case No. CUP 05-02 — , , F PALM DESER , licant ti�.. Request for revocation o � exis ' onditional use�ermit which allowed a massage t tablishment in a 2,000 square foot of;' ite locate -875 Washington Street, Suite E. Busin : Mei Ju ng. Mr. Tony Bagato expl d th wa uesting that the Planning ' sion re e , P (Conditional Use Permit) ssage �� ` ishmen t 43-875 Washington Stre ite E. e wer `-e,, o citations issued in May and the bu is no I er in o' tion. Staff requested that it be revok he fi revo � , the CUP were in the resolution ith the �� o, no one would be able to apply ass stablishmen re at this location for one year. He � ask any tions. / �� There we��% o q ' ns. Vice Chair Limont o�ened the public �� hearing a aske for any testimony in FAVOR of or in PPOSITIO o the proposed revocation. There was no one and public aring was closed. Vice Chair Limont asked for C is omments. � Commi sioner Schmidt asked for and received confirmation on the location of the use. There were no other questions or comments and Vice Chair Limont asked for a motion. Action: It was moved by Commissioner DeLuna, seconded by Commissioner Schmidt, to accept the staff report and revoke CUP 05-02. Motion carried 4-0 (Chairperson Tanner was absent). 3 MINUTES PALM DESERT PLANNING COMMISSION JUNE 16, 2009 It was moved by Commissioner DeLuna, seconded by Commissioner Schmidt, adopting the findings and Planning Commission Resolution No. 2504, revoking Case No. CUP 05-02. Motion carried 4-0 (Chairperson Tanner was absent). B. Case No. CUP 07-02 — CITY OF PALM RT, Applicant Request for revocation of an exis ' ` ' ional use permit which allowed a massage thera stab ent in a 685 square foot office suite locat 74-350 A ndro Drive, Suite B-4. Business Owner• e g Li. � y �. Mr. Kevin Swartz stated that� pril 16, , Tranquili " sage was sold to Xiang Li by Jing Tao, pr owner who `` as granted Conditional Use Permit 07-02 bac . uary 6, 2007. Mr. Li, the new owner, submitted an, � ation for a it back in July of 2008 and had his mother, Ms. Qia . as an e ee. During the background process in July done h Depa t, Ms. Qiao was found to have a conviction for d� alifyi�" uct."y e Ms. Qiao was a large part of th ' ss, the li recommended denial. The applica ' 'ed an � i remov his mother, Ms. Qiao, added Ms. ca Dun , and bmitted the application. Throughout the ap on perio s. Qiao` tinued to communicate with City staff regar the a "i�� indic . that she was still a large part of the � usines ' , the City conducted an inspection and taff nt and con ng business without an approved license. Mr. Sw tate findings for revocation of CUP 07-02 could be made `�� since the� ner not complied with Palm Desert Municipal Code �\ Sections 5: 160 D, 5.90.010, and 5.87.030, which were all attached to \� e staff rep He explained that if the revocation was approved, no new ication Id be filed for a period of one year for the same use. Staff re that the Planning Commission revoke CUP 07-02. �� Commi sioner Campbell asked if Ms. Qiao was terminated or if she was still in the facility. Mr. Swartz said they were no longer in the facility. Commissioner Campbell asked who was operating it. Mr. Swartz said no one at this time. Commissioner Campbell noted that they had a letter from Dr. Shah saying that someone else is in the facility right now, a new tenant with a business license. Ms. Aylaian stated that to her knowledge, they did not have a business license for this address. She believed they were licensed as a business at another location. They were not currently open 4 MINUTES PALM DESERT PLANNING COMMISSION JUNE 16� 2009 for business at this location. Commissioner Campbell clarified they were talking about Alessandro Drive. Ms. Aylaian said yes. Referring to the letter from the Shah Family Trust, Commissioner Campbell indicated that it said that the previous owner was terminated from the lease and he has a new owner that has signed a lease for one year and the new tenant has a business license ' alm Desert. She is in the Palms to Pines mall, she's been there for years, and hasn't had any problem with her Health massage ce ommissioner Campbell asked if everyone had a copy of the le Commission answered affirmatively. Ms. Aylaian explained that when age establish are opened in the city of Palm Desert, thr gs are required. need to be licensed for land use (the c nal use mit), but th o need a business license. That busines se � ifferent type o application, different review process, with diffe ia required, so what they were looking at was the I se elemen the conditional use permit. She believed that the peo roposed ove into this location do have a business license in th r� 'on wh hey do have a conditional use permit; however, loca o h a stand-alone massage establish ditiona e i . were closed and the City moved ir con use pe it based upon certain criteria and N ," n violati that wartz pointed out in his report. Because this W e involves:' tand-alo assage establishment that the Planning Com�' � n ex " � ncer bout recently, and because later on the enda �� ' a moratorium on stand-alone massage ��, ; �.;. , ' hm so that staf further analyze the impact that they have on a forcement in the community, and so they can further , analyze t t lance of business types and diversity of business � types are e ci :� far as revenue streams. Staff thought it would be �`�� inappropria� recommend keeping this stand alone CUP open and that � was bette � use this opportunity to revoke the CUP and in the future if morat is passed and the analysis is done on what is the a r' umber and type of massage establishments to have in the city, ey begin reviewing and issuing CUPs for them again, this issue could addressed with other CUPs that might apply. So this really had nothing to do with the business that is proposing to move in, the revocation was based upon the violations that were against the business, Tranquility Massage, which was operating in the premises in violation of certain criteria spelled out in the Municipal Code for massage establishments. 5 MINUTES PALM DESERT PLANNING COMMISSION JUNE 16� 2009 Commissioner Campbeil asked when the business was closed. Ms. Aylaian deferred the question to Code Officer Pedro Rodriguez. She thought it was earlier this year. Mr. Pedro Rodriguez, Senior Code Officer, said he had a list of inspections they did at Tranquility Massage. He received information that they were not supposed to be operating someti ; between January and the middle of February. He did an inspection,�; e facility on March 11 and he found no one there. It was 6:30 p. one of the tenants next door stated that they had just left for the bviously they were still operating. He did another inspection `" ly t fter and did find a Jessica Duncan working at the faci ' he was i a citation for not having a valid therapy license. A � o weeks ago were supposed to also be closed and he notic door was open an`� ; roached the people that were there. Dr. Sf�' he new o. r, had hire� ntractor to do a tenant improvement and n" . 'Idin � its were on fil for that, so he shut the job down and issued ` k notice and that was the last that they had contac them there: -. t was about three weeks ago. Vice Chair Limont asK fo ' ' ation � the citation and that they were definitely in violati f Pa rt c' Mr. Pedro said that was correct. E rapist ul ' therapist license and this particul id no therapi on two or three different occa ' that we icense he first time was just a warning; the other two'� were cit and afte��, is last citation that was issued, about a mont o m they"" Id not obtain a license through the City, o they d shut down and at that point they had ��be d that their e lishment was being revoked. �� Commi er bell asked if Jessica Duncan had a license in another location, eed have a license for this Alessandro location as well. �� Mr. Rodrig explamed that Jessica Duncan was not connected to the �� her locati hat was trying to move into this place; she was connected to Tr ility Massage. The person trying to move in now has a lic other location that is not transferable; they had to get a sep ense for that location. It was another business. Mr. Bagato clarified that Mr. Shah bought the property about a month ago. They were in the process of revoking it, and there was an owner of another location here in the city that was going to want to speak, they bought the business rights, although the business wasn't operating. That's why there was a little bit of confusion. They were trying to go into this location, but the revocation was already in the process when they applied for the business license. They were told that they weren't going to approve 6 MINUTES PALM DESERT PLANNING COMMISSION JUNE 16�2009 the business license, they were actually trying to revoke the CUP because of the problems they had with the previous business and getting them licensed. They were supposed to be closed for a couple of months because they were unlicensed and they were operating illegally. So that was probably some of the confusion. Vice Chair Limont asked for confirmation that ; . Bagato made them aware of that at the time of application. Mr. B said that was correct, and Dr. Shah and his attorney were here a Id want to speak. It was kind of a separate thing, but they were t ' ve here because of the existing CUP, although staff told the e trying to revoke it. Commissioner DeLuna noted that ffect, the ere two separate issues. Ms. Aylaian clarified that., was only one ; re the Planning Commission, and that was wh or not the CUP sho`"' revoked for Tranquility Massage based o , r repeate, �olations. Vice Chair Limont opened the pub g and asked if anyone wished to speak in FAVOR ' OPPOSI to the proposed revocation. MR. TONY M. 3 rea n Road, #213 in Diamond Bar, CA, 91765,� ted t epre s Ms. Deng, who is the ne r who e this business for about . re sh throug e transaction, she checked the Ci o see � ,; ere would be any permitting issues. She '��= as advise - y Claudr he City, that everything should be okay �"� n th d a s , rent store called Health Systems on ,,�, \�,� � �� `" en in operation since 2007. She was info that it shou e pretty swift, pretty easy. Later on when �� tri he couldn't renew the CUP. She ran into problems � th ere have been several citations in the past, but this °�� ha ead � n after she had already spent $14,000 into this � busi , and he has spent about $4,000 in tenant improvements. �� He � she is licensed to do massage therapy. Given that she has �, s; ` a year lease with Dr. Shah, she is on the hook. On the one � , it is $20,000, that's what she spent, and on the other hand, ere is another year left on the lease. She has never operated a business within this location; therefore, she would respectfully request that no further CUP be denied with respect to this location such that she could go in and conduct the business. And her position is important, like Dr. Shah. It was Mr. Lu's understanding that the center is presently only 50% occupied and he thought, although he wasn't speaking on Dr. Shah's behalf, that it would be in the landlord's interest to have a business establishment that is 7 MINUTES PALM DESERT PLANNING COMMISSION JUNE 16. 2009 going to bring business. The business that she has, called Health Systems, has been around for two years and never had any problems whatsoever with the City. Commissioner DeLuna pointed out that Mr. Lu talked about $4,000 that Ms. Deng spent in tenant improvements. She asked if that was done with the proper permits. Mr. Lu said it wasn't really a T.I. Hi erstanding was that she had to tear down certain items to ed, so she didn't really construct T.I. per se. She had t e o the debris, existing walls and things that were g repaire at was what the $4,000 was for. Given tha � ran into the o e, she stopped doing any further work. Commissioner DeLuna asked if� � me '�'��I'�I er application or a license to run a business from that locatio . Mr. Lu answer e prese e. Commissioner DeLuna d if onn ve been licensed at that location. �: " . Lu sta that has never operated a business in that ;,�:, cation. �� ;�, 5 �, � -�:��, ��a � ommis 'u� � . �:; : �.. Co 'one .,; hmidt asked for clarification that she is operating a � busines sen , the Palms to Pines shopping center. � � � Mr. L idn't�know the name of the shopping center, but it's located � at 72.' 5 Highway 111, Suite B-7; that's a different location and , has operating since 2007. � Com � ner Schmidt asked if she wished to move from that location to the ne ocation. Mr. Lu said no, it would be a second location. Commissioner Schmidt thanked him. Commissioner Campbell clarified that she did sign a lease and purchased the business. 8 MINUTES PALM DESERT PLANNING COMMISSION JUNE 16� 2009 Mr. Lu said that was correct; $14,000 for the business and $4,000 for miscellaneous repairs, a security deposit of $1,500 and her monthly rent he believed was $1,200. And she is current, despite the fact that she is not running the business, she is still paying rent because she didn't want to get into any contractual disputes. Commissioner Campbell asked for confirmatio Ms. Deng didn't know anything about the CUP until she came to t , "'"� Mr. Lu said her understanding °" that' was going to go in there to either renew it or ap ; r one un r name. She was informed by the City that z; her track re� at the different location, it would have b ery easy. At this tim :. had no idea as to what may have"' e wrong - k then whe �y previous owner was operating the �nes she had know , she would not have entered into this a . MR. GREG �� 74-090` aseo, stated that he is an attorney repres� g , h Fa � rust, the owner of the real properiy. He sai <.: t in ` s eLuna mentioned, there are ues goi n.,: . Is and the new buyers have ' n wh er, inc ing the personnel as he erstoo with tf� , arties that received the letter in April of 008, whic as 14 rrr " s ago, or the various actions taken by ,:�;,,, D�" e En in or� to protect and promote the city of Palm � �� at t ave is a new owner of the property as of about May 5, � • th h Family Trust purchased the property from Jorge ��'�� an , na � uez, so they were no longer the owners of the prop . And then they have a lease that was entered into as °�� discu d by Ms. Deng, who has been operating, he believed from �� the ' mation he received today that it is located next to the Von's �� a ms to Pines, apparently without any issues whatsoever, �� ing for a second location. This is not a new CUP. It was his , derstanding, and Counsel for the Dengs could correct him if he was incorrect because he didn't represent them, but they also purchased the name Tranquility, so the old entity or old owners are gone, the name would remain, and that's where the CUP is located. So they didn't have offending owners, employees, independent contractors; he didn't know the previous folk, neither did the Commission. 9 MINUTES PALM DESERT PLANNING COMMISSION JUNE 16� 2009 They were looking to continue to have the business here in Paim Desert and he thought one of the important issues, as he looked at the agenda and what was discussed, and he thought there was a slight perhaps play on words. One of the things they heard a few minutes ago was something about a stand-alone entity such as this massage parlor. But if they look at what is coming up, it is calling for a one-year moratorium on the issu, e of conditional use permits for independent massage e ments. That wasn't necessarily stand-alone and he � ht that was a slight misstatement that he thought was,' Obviously they have a history, and a history here in Pal"� � ese ,:;,, 'ch he was sure was important for them all. Secondly, if they take t. `��n dependent, and if t re looking to make a second entity, . are now, �ng from an` endent to much more of a use th'� .; ain an independen . They now have two entities owned me folks, so they would be monitored at cations an in, there is some sort of history as counsel ha d to the e thought that was important for allowing the U tinue he thought it was not in support and not c ary a t re ing the next agenda item reg e one- � "' ��. Rath ��'�� n goin� to the xt agenda item, Vice Chair Limont asked Mr. 'ian to ad s this ite nd summarize his comments. ;�. �.� ,�4 � , �"�l a new owner as of May. He apologized �: to �i� rwin for mis ° Iling his last name. Secondly, they have a te and a tenant that has a history with the City of Palm were just wishing to continue the CUP with � Tra ility.��:� bought the name, and he thought it was pretty �� clea _ every ody they heard, including Code Enforcement, that �� there no connection with the old entity that was cited and � con '� d to be in violation through the early part of 2009. They �� w ere to clean it up. Dr. Shah owns a number of properties, as � ommissioners were well aware, on Fred Waring and Highway 1 here in Palm Desert. He has helped the real estate commercial business down here, perhaps more than any other person in Palm Desert. Dr. Shah believes in this area, continues to invest his work, his construction, including his architect Narendra Patel, who does top notch work. So there is not a chance that someone of this kind of high end developer that we have here in the desert is going to do anything contrary in the best interest of his building for property values, which also assists his neighbors. 10 MINUTES PALM DESERT PLANNING COMMISSION JUNE 16� 2009 Vice Chair Limont thanked him and asked if he had anything further that would help with the decision making. Mr. Swajian said as counsel he would be happy to answer any questions regarding the property. He had the lease and the document on the transfer of the property, verything was backed up from the documentation he had her h was consistent with Suresh Shah's communication to the e last day or so. Commissioner DeLuna asked for cl tion t Mr. Swajian only represented Mr. Shah and not Tra 'ty. He sp lot of time telling them about Tranquility, but they actually not his t. She asked if that was correct. ; ' Mr. Swajian said that was lut rect. Commissioner DeLu nked him. Mr. Swajian as , i were ther questions. There no further questions. Swa ke Commission. Vice C�. sked was an ne else wishing to speak in :y9.: FAV or in O ,; SITIO the proposed revocation. �q. �.. A�h Befor � sing g q ' hean Mr. Erwin asked Mr. Rodriguez about n reco ng the current applicant for this location. ' sue y . been broug p and he thought the Commission should hea th bout it. Ms. Aylaian repeated the question for Mr. � Rodrig aski r any history on the applicant for this location, on �� Health S s, `�" - epresented they have a clean record here in the � city. ` � Pedro riguez, Senior Code Compliance Officer, stated that as of la er when they started doing their monthly massage therapy insp , they hadn't had any violations at the Health Systems over at 72-65 � -7. Every time they have been there, the facility has been clean, sanitation has been adequate, licensed therapists, and they haven't had any violations there at all. Everything was in complete compliance and they do have records of their inspections there and there haven't been any violations. Vice Chair Limont said it was her understanding that at the time that the applicant came in to apply for a CUP, that they were told we were in the 11 MINUTES PALM DESERT PLANNING COMMISSION JUNE 16� 2009 process to revoke it. She asked if that was correct. Mr. Bagato's understanding was they went to the Finance Department and spoke to Claudia about a month ago and said that there is an existing conditional use permit and they would like to come in and take over the business. At the time, Claudia had not been part of the discussion staff had been having with the City Attorney about revoking a couple of locations. He thought from their discussion with the Financ, epartment that they believed they could move forward and basica d of take over the old business and operate it as a second locatio out two weeks later, they came to speak to Planning about appr business license and that's when Planning staff informed the at th . . ere in the process of revoking it because of the issues wi e former b ss owner. And so initially they talked to one depa and thought e hing was okay. They were in discussion with ia's boss; however; dia was the technician in Finance that wa' ware th, lanning was ry ; e process of revoking the permit. So that' : re h ught some of f5 e confusion came in. But when they came to P ey had already purchased the business and were .. to actuall cess the tenant improvements, when he denied the e tenan ovements (T.I.) because they were revoking the CU t Vice Chai t asked� r �`� �' °� that occurred. Mr. Bagato said it hree go whe ey came and spoke to him abou .I., bu y said�,;; y had met with Claudia about two weeks pri speaking im. Vic `�°� air Limont noted that the letter said the buildi s p Ma` , 2009. Mr. Bagato confirmed that Dr. hah bo � � renovations, like repainting it, back in � ut t siness owne o signed the lease with Shah was about � four � a fore they came to Planning. � �!�� So at thi� , fo � specific business, Vice Chair Limont said they did �%��not have a P in lace for this specific business. Mr. Bagato clarified �at there i CUP, that's what they were asking to revoke, but as he d bef conditional use permits run with the land and so they w e in and basically take over and apply for a new business licen work under the existing conditional use permit and work with the exi ing conditions, the hours and limitations. So when they met with Claudia, they thought they could just do that. So they weren't asking for a new CUP, they were asking that we not revoke it so they can start a new business under the existing one. When she mentioned earlier that they might be dealing with two separate issues, Commissioner DeLuna clarified that the only thing they were really dealing with tonight was whether or not to revoke the existing CUP. Any 12 MINUTES PALM DESERT PLANNING COMMISSION JUNE 16� 2009 other issue would have to come in separately. She asked if that was correct. Mr. Bagato said technically no, because they were asking for them not to revoke it because of their business application that they are trying to process. So it is still one issue. They have an existing CUP that staff is recommending be revoked and they are asking that it not to be revoked so they can operate a business there as a new business owner. Commissioner Schmidt asked for the date of plication for business license on the new location. Mr. Bagato di ave that paper work. Mr. Erwin interjected that they were using 'fferent terms here and thought clarification would be helpful. ;:. nditi use permit is a land use permit that runs with the land t's what hah is concerned about. The operation of a mass usiness requir ree things: the conditional use permit for the on, a massage est'�' ment permit, which is run through the ess Lice Departme�" ' is not a particular business license, it is ssa ablishment per it; and then the massage therapist must also h dual permit. So they were kind of mixing the condit' use permi massage establishment permit and talking like it's a license. ot. It's another one that has much more detail to it r busi license would. But there is also a business license i ditio Vice Ct�, �s�'` iterate ey wer� � st talking about the CUP that goes '` the lan hich e s now and they were being requested to rev ". =t this even` . Mr. E oncurred. ,��y j� �, �,�� ; o clarif .�; ;°- out by Dr. Shah's attorney, Ms. Aylaian ' ed � ey do use t erm both independent and stand-alone. At a st el t terms are used interchangeably. They were not referring to the o shi whether or not an establishment is one of a chain, a �: franchise; as�o : locations. They were referring to the fact, whether � they called` tand lone or independent, that it only provides massage �.� rvices. It ` ot part of a hotel and there are no other uses associated � it. So apologized for any confusion that may have caused, both o� and later when they talked about the moratorium. The term , either stand alone or independent, just referred to the fact that th e are no other secondary uses associated with that location. Commissioner Schmidt asked if there was a secondary use on that property. Ms. Aylaian said no. Commissioner Schmidt indicated this was either a stand-alone and/or independent massage. Ms. Aylaian said yes. If revoked, Vice Chair Limont asked if the new applicant would have to come before Planning Commission. Ms. Aylaian explained that if the CUP 13 MINUTES PALM DESERT PLANNING COMMISSION JUNE 16. 2009 was revoked, there could not be another application for a CUP for massage at this location for one year. Any recourse that the other business has would be a private issue between themselves and the landlord or themselves and the people they bought the business from. In response to Commissioner Schmidt's earlier question, Mr. Lu stated that his client went to speak to Cla ' on Monday, May 12, whereupon she got the okay that it s e okay. On May 13, which was a Tuesday, she signe ease. And on May 14, Wednesday, that's when she wen d tendered two checks to the City; one in the amount of' an other in the amount of $60. So it was Monday, T ay, Wedn from the 12t" to the 14tn Commissioner Schmidt aske t the che to the City or. Mr. Lu said it was his und that it was for the business license. Commissioner Schmi sk � was e massage establishment permit. e wa ar. He 't think his client was really r as to ; at she� paying for. She was asked to make out � ��, o checks.:�� she di ��. on May 14. � r. Ba re was for the massage establishment tion��, se as the Ci = ttorney pointed out, and the other one was for ine' ' ense. Commissioner Schmidt asked if she is a licensed � massa rap �� Mr. L aid th t was correct. \� missi DeLuna asked for clarification. The second time Mr. Lu got u , e said that City employee Claudia said it was okay. The first time� oke he just said there was just an indication that there was no reason ot to proceed. That was a different perception and she wanted to be clear that no one in the Finance Department said it was okay. Based on his notes and his understanding, Claudia said it should not be a problem. In fact, that his client was going to get this permit pretty fast, pretty soon given her history. He believed those were her words. 14 MINUTES PALM DESERT PLANNING COMMISSION JUNE 16�2009 Commissioner DeLuna thanked him. Commissioner Campbell asked if he had any idea when Dr. Shah purchased the property. Mr. Lu said that part he did not know. Mr. Bagato said May 15, 2009. Vice Chair Limont noted that the applic, for and gave the City checks for a business license and a ma ` e p ;s while we were in the process of possibly revoking the „ y . She as if there was just miscommunication there or if i,"� s just becau ' was different departments. Ms. Aylaian susp r that was the issue.- , departments are in separate buildings a `�` : ey try t mmunicate� "� , but that doesn't always happen, or inst eou ice Chair Limo t reiterated that the applicant just went to th e Department and made out checks. Ms. Aylaian at was he erstanding. :;:� Based on the issue of tw s, Co" �sioner DeLuna asked if the conditional use permit wD" enie" . ke ;�. s. Deng had recourse to try to rece' und on . m spent for a license or permit. Mr. Ba Claudi � Iready i"' ed the refund; staff told them to ref becau f this. missioner DeLuna asked for confirmation tha were no t any m"'�, at this point. Mr. Bagato said not from the Ci ide. �: / hair nt closed th ublic hearing and asked if there were any � furt ��m rom Commissioners. '%�,� Commiss�� r De � understood that there was a bit of a complication, �� but they we till trymg to deal with staff's request to revoke the CUP of a rmer busi because of violations. She asked if that was correct. Ms. ian sa� s. �� In r that, Commissioner Schmidt said they totally got rid of any opport ity for the new licensed massage therapist to operate under that CUP. Ms. Aylaian said they preclude the opportunity for any businesses to operate as a massage establishment at that location for one year. Any subsequent massage use there would have to go through the public hearing process again after a year. Commissioner Campbell didn't think the new owner that signed the lease with Dr. Shah, and it seemed to be all in that period of time from May 12, 15 MINUTES PALM DESERT PLANNING COMMISSION JUNE 16. 2009 May 13, May 14 and May 15, that she should be penalized because of what happened in that same location and she didn't think the CUP should be revoked at this time. She didn't know and Dr. Shah didn't know anything about the history of what was going on. They heard also that the new tenant didn't have any problems whatsoever there in her present location to go ahead and move into a new location. She seemed to go ahead and was doing therapy and not just mass per se, but she is out of the money. She didn't know anything about story of the location of what was going on. Everybody was out a e was coming in with a clean slate and the way business is no want to go ahead and have everything leased as much as po e. lice would be in the facility like they do right now, proba onthly, an ere was anything that they find that's wrong, they ways revoke icense and the CUP. But she thought at this ti hould not be revoke Commissioner DeLuna said the s on they were c nsidering a moratorium, and unfortunately, re some things that have complicated this fro ' g a clear sue. Nonetheless, she thought the issue before the not onl this issue, but subsequently, was establishing a mo _ ri uch st lone or independent uses. Unfortunately, even tho she a ith Commissioner Campbell had said, ' 't think h ose for the revocation of the CUP. ; Co `. sioner Sc � dt asked� r. Erwin had some counsel for them. Mr. Erwm�'�s; ' th� � efore em the staff report and the factual ircums s left to the four of them. ��,:: �F Vice 'r Li t y agreed with her fellow Commissioners. She thought it was ho un ate for the massage therapist; however, according to \� counsel, t UP ` with the land and she thought that was the issue ` ,\ before the missi n this evening. This was not clear cut, it wasn't easy, `� d it wasn' t "we don't like stand alone massage parlors". That wasn't `� directi ey were trying to take here. But it was a serious situation, e this issue, so as much as she would like to say they could be s ed out, she agreed with revoking the CUP. She asked if there was a� otion. Action: Commissioner DeLuna moved that they support staff and revoke the CUP. Commissioner Schmidt seconded the motion. Motion carried 3-1 (Commissioner Campbell voted no, Chairperson Tanner absent). 16 MINUTES PALM DESERT PLANNING COMMISSION JUNE 16. 2009 It was moved by Commissioner DeLuna, seconded by Commissioner Schmidt, adopting the findings and Planning Commission Resolution No. 2505, revoking Case No. CUP 07-02. Motion carried 3-1 (Commissioner Campbell voted no, Chairperson Tanner absent). It was noted that the Planning Commission was the final action on a conditional use permit, but the decision was pealable to the City Council, and the applicant may appeal. C. Case No. ZOA 09-253— CITY O LM RT, Applicant Request for a recomme n to the Cit uncil to approve a clarification alm Desert Muni Code Chapter 25.112, Exc ns Bas on Uncons ' nal Takings. Ms. Lauri Aylaian ex d that the i efore the Planning Commission was a clarification o languag the Zoning Ordinance. This language dealt with ci s � in whi applicant with a piece of property they would like eve ' ves a strict application of the Zoning O woul s nstitutional taking of their propert ords, t . ieve tha ey would lose all economic valu conomi nefit of property if the Zoning Ordinance is strictly . ap , In instan like tha ey could apply for an exception to the Zonin inan- 3 ar quired to put forth a certain amount of ' format te why they believe that an exception to b nted in orde '�` them to be able to retain some beneficial use cori use of their property. �� She furtfi plai " at this was passed in 2005, and had not yet been applied. St as going through a case now where they actually received applicati for an exception, and as they were working on the case, were ing with legal counsel, and the attorneys recommended th i dification be made to clarify explicitly that the Planning Com n has the ability to condition any exceptions that they approve. Throug out the Zoning Ordinance, it is implicit that any request brought before the Planning Commission does offer them the opportunity to place conditions upon it. It is not administerial approval, it is discretionary. Our attorneys recommended that we in this case say it explicitly in 25.112 which deals with the exceptions based upon unconstitutional takings. Staff's recommendation was that language be inserted which clarifies that the Planning Commission, upon granting an exception pursuant to this 17 MINUTES PALM DESERT PLANNING COMMISSION JUNE 16� 2009 section, may limit the scope of the exception or impose conditions to achieve to the extent reasonably feasible the objectives of the standard or standards to which an exception is being granted, but without constituting a taking of the property without just compensation. Ms. Aylaian said that if they wanted an example, one of the ones they would most likely see was an exception that act has been requested, and that would be an exception to a prohibitio uilding on a ridge on the hillside. If they could imagine, the hill '' s topographically varied. Each parcel is different. It's difficult to m alizations because the topography is so different from one p ` o a r, but if an applicant wanted to build on their hillside par nd they fo that all the places they thought were buildable wer . ally ridges ide by the Hillside Ordinance, they could propos - an exception be gr so that they could build on that ridge bec `` " if they c : n't, they wo'.., ot be able to develop their property. If that� e be e Planning C� mission, it was staff's belief that the Planning � sion already had the ability to, and should be able ndition an tion so that, for instance, they could say they coul : this po f the ridge, but not another. They could tailor it to b y e hat pr , which staff believed was the intention of the e `Y 'ng ' rdi e and was appropriate discretion 'sion m g `'� 'ng Commission in order to make a hat co to the in t of the standards for hillside deve nt. Sh ked fo :: questions. She noted that there were a co � f interest arties in T�, audience. . ; I �`�,. s. Ayl the Planning Commission received a om eoni, O'Laug & Hechtman, attorneys representing the app for ase she mentioned wherein this is the first application they re d fo exception to the Hillside Ordinance. That letter was d� distribute the � ission and if they had not had an opportunity to ��d�� read it, she omm� nded taking a minute to read through it to see their ��mments. mmission did so.) � Vi h ont oqened the public hearing, and referring to the Request to cards, invited Mr. David Nelson to address the Planning Commi sion. MR. DAVID NELSON, 72-595 Beavertail Street in Palm Desert, explained that he is the owner of a five-acre parcel on Upper Way West, which as they knew, he has been trying to obtain approvals on from the City to build a single-family home on the parcel for about six and a half years now. He was at the meeting to oppose the City's proposed amendment to Chapter 25.112. This chapter 18 MINUTES PALM DESERT PLANNING COMMISSION JUNE 16. 2009 now allows property owners to apply for an exception application to the zoning standards which, if applied to their property, would create a taking of private property, which is prohibited by Federal and State constitution. He understood that they received a copy of his attorney's letter opposing this amendment. They found out only on Friday that the City was considering this amendment. On March 13, 2009, he applied for th ption application. His application seeks exception to the g standards prohibiting development on ridgelines and res d and building size. He submitted the application, I e ' ed appraisal and engineering analyses, which wed that se standards are applied to his property, it sult in an unco tional taking of his property. He would e able to develop operty to an economically viable us Under the existing Chapter e Planning Commission was required to de ' e, based o evidence received, whether the application of t " g stan to his properry would result in an unconstituti f so, City could either buy his property or exe his en these standards. The pro 'th this p ent is that if the Planning inds th oning s dards, if applied, would result e takin , privat perty, it could impose new standards and _. onditions "N the pro y. That made no sense to him. His ptio `%�' ' n on ked whether the zoning standards that h , ' ion of the development on the ridge and the�� iction of the ilding pad result, if applied against his �� e r a taking of the property. That is the only determination ue. Planning Commission should not be allowed to � im� ne � ��s� dards which are not existing zoning standards and � have t bee� subject to any sort of public review and comment � and e them on his property. That is impermissible spot zoning �� and; s unfair and discriminatory against his property. \�� elson's first request was for the Planning Commission to not \ commend adoption of this proposed amendment, but if they do choose to recommend this proposed amendment, he would then request that it not be retroactively applied to his pending application. His attorney's letter addressed why this amendment should not apply retroactively to his property; and from his perspective, it was simply unfair and unreasonable to continue to change rules and regulations governing the application procedure while people are in the midst of the application procedure and have 19 MINUTES PALM DESERT PLANNING COMMISSION JUNE 16� 2009 in good faith relied on those procedures in pursuing the development of their property. He asked that they please carefully consider his request and thanked them for their time. MR. BRUCE KUYKENDALL, 49-081 Sundrop Court in Palm Desert, stated that he was present to represent himself, Dave Baron, and their Barracuda LLC. They al wn a five-acre parcel adjacent to Mr. Nelson's. They were represented by Mr. Matteoni and they would be shortly fi ' eir exception as well. He strongly felt that this was a co, of the taking of their property that is unlawful. They ' d to n record with every word that Mr. Nelson said to plied to th There was no one else wishi speak. Vice Chair t closed the public hearing and asked for ission c ents. Commissioner DeLuna said she h stion to ask of one or both of them. Was it their i to build on idgeline or was it their intent to build somewhere on ? With all due resp Mr. all he started back in 2002 wit cess. u us options. Their parcel was 'n the ` d there s roughly a 180-foot piece of ridge t was le d off back in the 1960's right at the end of � - e homest�'; ing of t properties. They've tried a pad there, 've ied. did receive Planning Commission a p '�� V mmediately the City Council jumped on � ��'��hat��'��. , ad three di��'"�ent City Council members tell him that he Id uild on that property on their watch. At that point, Jean � on s ey need to buy these gentlemen out if that was their ��i� they appr isals on t e property rlTheOy didt hat T ey put�up a �� Tollin greement while the Hillside Ordinance was passed. After it �� was sed, they received their Tolling Agreement unsigned and a � rom the City that they were no longer interested in �� asing their property. They have jumped through hoops, they are filing their exception, and they are paying for reports from appraisers and engineers. They've tried every little piece on there to try to make it. He's a grading contractor and has specialized in Palm Desert and hillside development and helped the Planning Commission set a lot of the standards that Bighorn had to adhere to. But then they went awry and now they are paying the price for the Hagadone property and 20 MINUTES PALM DESERT PLANNING COMMISSION JUNE 16. 2009 that project. The ridgeline that was drawn by the Planning Department pretty much encompassed all of the buildable sites on their property. It wasn't feasible to try to spend $250,000 to build a 10,000 square foot pad and they need a garage and a turnaround; it was not feasible. They are turning in reports to show that and this new amendment was just another continuation of the taking of their property, just handcuffing them. Commissioner DeLuna asked for clarific `"V hat the answer to her question was that they are only interest ing on the ridgeline of those lots. y Mr. Kuykendall said he wo ild any where ' feasible, it just happened to be when ity Planning Depa t made their ridgeline map, which � , blown topography what they supplied them. They too a ' rker and prett much said well, they can't go there, �" an't go over here, and so in reference to ' cel, it mea couldn't even access it. So he has a $2 mi , of pr that has no feasible use whatsoever. Th�' ly e cou : was walk on it. Next door, �::, while all this was. ing o Ea ame in and demolished 60 d didn' : v ominent points or ridges that t pose : ve. He s getting a little sidetracked, right a s that inary property line and 30 feet from the ;x�, ales office d he w�r"� oking at their maintenance facility, their ,;;�, �,� hous � �� ,a rs p � d, and right across that imaginary p t anything. �� Co 'one una said she could tell he was frustrated. �� % Mr.- ��ken� aid very much so. �� ,��mmissio eLuna thanked him for his comments. � C is r Schmidt said that this is a recommendation to the City Cou change the wording. That is their main goal this evening. She moved at they do just that, recommend this change. She thought the change clarified the existing ordinance and the intent of what is already there and should be done. It was unfortunate, and she knew what they were saying because she had heard it before a number of times, but their assignment this evening was to recommend to Council a clarification of somewhat vague language in the ordinance. She moved that they do that, just the way it is written. 21 MINUTES PALM DESERT PLANNING COMMISSION JUNE 16� 2009 Commissioner Campbell thought they could go ahead and propose to Council to go ahead and change that amendment, but she thought these two people should be exempt from this amendment. Vice Chair Limont seconded Commissioner Schmidt's motion. Action: It was moved by Commissioner Schmidt, sec by Vice Chair Limont, approving the findings as presented b ff. Motion carried 3-1 (Commissioner Campbell voted no.) Ms. Aylaian noted that it sounded I' at motion, ond and approval was for staff's recommendatio . Erwin concu Commissioner Schmidt clarified that it her understandin at in the recommendation, there was eference the Nelson uykendall properties. Mr. Erwin said that corr ommissioner chmidt said that was her intent. She wasn't c had the authority to exempt anyone. That was h reason; s 'dn't think they had the authority to exempt anyone oint. Chair Limont agreed with Commissioner Schmi h oping helped to clarify, because she knew this had bee diffi tio them, the City and the Planning ' ion. Sh a s use for her at least, it helped to say t " inal int cause th idgelines vary so greatly. h�: Co "` sioner C,; bell as the City Attorney if he wrote the amen t. nsw yes. Commissioner Campbell stated at she` � .; It w ve ommissioner Schmidt, seconded by Vice Chair Limont, � adoptin nn�i ommission Resolution No. 2506, recommending to � City Coun prov f Case No. ZOA 09-253. Motion carried 4-0. \ IX. �� CELL US � A. �, uest for a recommendation to the City Council to adopt a e-year moratorium on the issuance of conditional use permits for independent massage establishments while long- term regulatory strategies are studied. Mr. Kevin Swartz stated that on May 19, 2009, the Planning Commission requested that staff prepare a report and recommendation to the City Council for a moratorium to be placed on conditional use permits for all independent massage establishments for a period of one year while the 22 MINUTES PALM DESERT PLANNING COMMISSION JUNE 16� 2009 City studies massage establishments. The Commissioners requested the moratorium, and in light of the Police Department activity at massage establishments because of illegal conduct and operating without an approved license. In the report, staff outlined the reasons for the moratorium and staff recommended that the Planning Commission recommend to the City Council a moratorium be placed for one year while staff studies the issue. He asked for any question Commissioner Schmidt noted that it seeme e might be several CUPs that were dormant and businesses that longer operating. She asked if that was correct. Mr. Swartz st that ' cluded a chart in the report; there were 19 approved CU nd those all active. Two of them were in front of the Comm' today. If they 't get appealed within 15 days, that number w rop down to 17. Ou e 19, 10 are independent massage estab ents, 9 secondary massage establishments. He confirmed are ` operation. C mmissioner Schmidt reiterated that any CUP t een running with the land that would house an � endent m e establishment was either operational or non-ex re were UPs just sitting out there that were issued to massa s ents t ere no longer in business. Mr. Swartz concurred. Commi na tho was wo noting that there if there are 19, 9; ich we ither in spas or hotef establishments, that putting a orium on stand independent massage establishments while stud , no who legitimately wanted a massage ould b � able massage therapist. �� ;��. Co 'one mpbell asked if any applicants currently in the applica � roc would be exempt from this moratorium. Mr. Swartz �� said that , cor � Mr. Bagato indicated that staff currently had no ��,��application �� missi DeLuna asked what the process was to move this on to the C and if it was approval of the resolution. Mr. Erwin confirmed that ng Commission's approval of the resolution would move it to the Cit Council. It would be on a Council agenda. The way a moratorium works, the Council could initiate it immediately. The immediate enactment of it is good for 45 days. The Council, after a public hearing prior to the end of the 45 days, could extend it for 10 and one half months. That's how they got one year. Commissioner DeLuna stated that she would move to approve the resolution moving it to the City Council. 23 MINUTES PALM DESERT PLANNING COMMISSION JUNE 16. 2009 Vice Chair Limont asked if they needed a public hearing on this matter. Mr. Erwin replied no. (Note: there was no one in the audience.) Action: It was moved by Commissioner DeLuna, seconded by Commissioner Schmidt, recommending approval of a one-year moratorium. Vice Chair Limont asked for discussion. Commissioner Schmidt noted that ther s discussion regarding independent versus stand alone and ask anguage was sufficient to cover them all. Mr. Erwin said yes. miss Schmidt stated that her second would stand. Vice Ch ' ' ont calle the vote. Motion carried 4-0 (Chairperson Tanner sent). _�� ,. It was moved by Commissi DeLuna �= conded byv`' ; missioner Schmidt, adopting the findings a lan ommission R olution No. 2507, recommending to City Cou ion of a one-year moratorium on issuance of c ' ' nal use its for independent massage establishments while , regulat .: trategies are studied. Motion carried 4-0 (Chairpers ,, an abse" ;� �� . �� , , X. COMMI ING U� � S �� .�� yy�. A. RT IN PU C PLAC � �; '"' w� �m ported that the next meeting would be ��//�i��,,,,��un � B. S COMMITTEE �� Vice ir Limont summarized their discussion items. '�� PA & RECREATION �� ,, e. D. PROJECT AREA 4 COMMITTEE Commissioner Schmidt provided an update on their last meeting. 24 MINUTES PALM DESERT PLANNING COMMISSION JUNE 16, 2009 XI. COMMENTS Staff and the Planning Commission discussed the July and August meeting schedule. The Planning Commission canceled the July 7 and August 18, 2009 meetings. XII. ADJOURNMENT It was moved by Commissioner DeLu ded by Commissioner Schmidt, adjourning the meeting by m m Motion carried 4-0. The meeting was adjourned at 7:22 .,� �. ��qk kt. L ��PI!+� YLAIAN, Secr ary ,.� � �.,�i „i�, ATTEST: M. CONNOR LIMONT, ' air Palm Desert Plannin �' /tm :; ',� ,;,E �� .�� °�� a��e . _� �� :v \ � ��\ \ \ 25