Loading...
HomeMy WebLinkAbout05-19 Draft Minutes MINUTES PALM DESERT PLANNING COMMISSION TUESDAY – MAY 19, 2009 * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * I. CALL TO ORDER Chairperson Tanner called the meeting to order at 6:00 p.m. II. ROLL CALL Members Present: Van Tanner, Chair Connor Limont, Vice Chair Sonia Campbell Nancy DeLuna Mari Schmidt Members Absent: None Staff Present: Lauri Aylaian, Director of Community Development Bob Hargreaves, City Attorney Tony Bagato, Principal Planner Renee Schrader, Associate Planner Kevin Swartz, Assistant Planner Phil Joy, Associate Transportation Planner Ryan Stendell, Senior Management Analyst Tonya Monroe, Administrative Secretary III. PLEDGE OF ALLEGIANCE Chairperson Tanner led in the pledge of allegiance. IV. SUMMARY OF COUNCIL ACTION Ms. Aylaian summarized pertinent May 7, 2009 City Council actions. V. ORAL COMMUNICATIONS None. VI. APPROVAL OF MINUTES Request for consideration of the May 5, 2009 meeting minutes. MINUTES PALM DESERT PLANNING COMMISSION MAY 19, 2009 Commissioner Schmidt requested that “Having said that,” be removed from the first line on page 9. Action: With that correction, it was moved by Commissioner Campbell, seconded by Commissioner DeLuna, approving the May 5, 2009 minutes as amended. Motion carried 5-0. VII. CONSENT CALENDAR A. Case No. PMW 09-153 – ROBERT DEL GAGNON, Applicant Request for approval of Parcel Map Waiver 09-153 to allow the merger of two lots identified as 73-648 and 73-636 Alessandro Drive. Action: It was moved by Commissioner Campbell, seconded by Commissioner Limont, approving the Consent Calendar by minute motion. Motion carried 5-0. VIII. PUBLIC HEARINGS Anyone who challenges any hearing matter in court may be limited to raising only those issues he, she or someone else raised at the public hearing described herein, or in written correspondence delivered to the Planning Commission at, or prior to, the public hearing. A. Case No. CUP 09-180 – LISA THEODORATUS, Applicant (Closed Public Hearing continued from May 5, 2009) Per direction from the Planning Commission, presentation of a draft resolution denying a request for a conditional use permit to allow the rental of a single-family residence in an R-1 zone, for periods of less than 30 days, located at 77-040 Utah Circle. Ms. Renee Schrader explained that staff prepared the resolution of denial per the minutes and hoped it reflected their intentions. If not, it could be revised. Chairperson Tanner asked for a motion. 2 MINUTES PALM DESERT PLANNING COMMISSION MAY 19, 2009 Action: It was moved by Commissioner DeLuna, seconded by Commissioner Schmidt, approving the findings as presented by staff. Motion carried 4-1 (Commissioner Campbell voted no). It was moved by Commissioner DeLuna, seconded by Commissioner Schmidt, adopting Planning Commission Resolution No. 2500, denying Case No. CUP 09-180. Motion carried 4-1 (Commissioner Campbell voted no). B. Case Nos. PP 07-10, CUP 07-18, DA 07-03, and DA 07-04 – DAVIS STREET LAND COMPANY, Applicant Request for a recommendation to City Council of approval of Amendment #1 to a Precise Plan of Design, including Conditional Use Permit and Development Agreements, to th allow a 27,000 square foot addition to the existing Saks 5 Avenue at the existing Gardens on El Paseo, and construction of a 42,539 square foot single-story retail and restaurant development, with adoption of an addendum to the approved Mitigated Negative Declaration as it relates to the project thereto. Subject properties are located at 73-545 El Paseo (Gardens on El Paseo, APN: 627-261-006) and 73- 425 El Paseo (El Paseo Village, APN: 627-252-004, 005). Mr. Ryan Stendell reviewed the staff report. He noted that the amendments complied with all the standards of the General Commercial zone and the two originally approved development agreements. Staff believed that the revised project would be a top notch project for El Paseo and would bring a nice new building to the currently empty block. He asked for any questions, noting that the developers were present, as well as their architects, parking analysis folks, and others to answer any questions. Commissioner Schmidt noted that in looking at the elevations, and taking the elevation differences for the overall height, that most of it falls under the 30 feet, but there were two dimensions on the drawings, and it might be just the drawings that showed each at 32 feet high to the top of the parapet. Mr. Stendell explained that they did go through a few revisions, but they are at 30 feet overall. Using the plan, he showed the 30-foot mark. What they were seeing was a mechanical screen, and he pointed out the 30-foot high points, and indicated that the bulk of the building was well beneath the 30-foot limit. Commissioner Schmidt clarified that she was referring only to the parapet 3 MINUTES PALM DESERT PLANNING COMMISSION MAY 19, 2009 across the drawings and the two vistas which said 32. Mr. Stendell apologized and clarified that it would be 30-feet high maximum. Commissioner DeLuna indicated that she would have a question for the applicant. Commissioner Limont asked staff if there was any discussion of solar panels for this building. Mr. Stendell indicated that there wasn’t a solar component in the original project, and he wasn’t prepared to say yes or no to that. He explained that they had a study session on Thursday with the City Council where a lot of different topics would be discussed. He didn’t know if there would be one with this project. Commissioner Limont asked if they agreed to it, if it could be done. Mr. Stendell deferred that to the developer. Chairperson Tanner opened the public hearing and asked the applicant to address the Commission. MR. STEVE DIVITO, with Davis Street Land Company in Evanston, Illinois, thanked the Commission for considering their project which, as Ryan mentioned, was a modification to the previously approved El Paseo Village. They believed the revised project, while still focusing on retail, which they thought was the important part of the El Paseo District, was only one story in height and much more in keeping with the other businesses or buildings in El Paseo Village. He said their architects were present to provide much more detail about the project, as well as all of their team members, to answer any specific questions. Commissioner DeLuna stated that it’s an exciting project for our city in the most prominent location and was an excellent opportunity to showcase some of the energy standards. She asked what their intentions were for green and sustainable design standards. Mr. DiVito said they do have a number of green building construction methods they were planning to incorporate into the project. Mr. Dempster, their architect, had a list of what those were and he could go into more detail. Commissioner DeLuna asked if it was correct that originally it was scheduled to be a gold standard Leed development. Mr. DiVito said that silver was the standard. 4 MINUTES PALM DESERT PLANNING COMMISSION MAY 19, 2009 Commissioner DeLuna noted that she didn’t see any reference to that and questioned if that had been modified, or if it was still a silver Leeds certified building. Mr. DiVito replied that modification was in process and believed that was the focus of Thursday’s study session with City Council. They would be focusing on doing certain construction methods that are included in Leed, instead of pursuing an actual certification. Commissioner DeLuna asked why they wouldn’t pursue an actual certification. Mr. DiVito said that Mr. Dempster could speak to it in more detail, but his understanding was that with the piece of the building that they are not building as office, the piece of the building that previously allowed them to pursue Leed certification, they didn’t have control over what the retail tenants on the ground floor could do as part of their construction. It was their understanding that certification was extremely unlikely, and, therefore, the reason for not pursuing it, voluntarily they were including certain construction methods that are part of a Leed program in the project. Commissioner DeLuna explained that it was her experience that the Leed certification process is holistic and encouraged ongoing, it wasn’t something that had to happen at the end of a project, so she didn’t understand why they wouldn’t pursue a silver standard regardless of whether it was a one- story or two-story building. They would have had office space on the second story as well with tenants. Mr. DiVito replied that with the office tenants above, they had a much greater control of the build-out of that space. MR. GARY DEMPSTER, Altoon and Porter Architects, 444 South Flower in Los Angeles, said that one of the original intents was to pursue the Leed certification. Since he has been studying for the Leed AP (Accredited Professional) test, and would be taking it on June 23, he had become ever more familiar with the requirements of getting Leed certification on a building. As they probably knew, it was predicated on certain prerequisites and credits that they achieve by achieving certain things. The bulk of credits available for Leed have to do with energy conservation and exceeding minimum standards. The presumption was that the client or the owner of the building is installing the systems. In the previous building, they were installing the systems for the office space: doing their air-conditioning, doing 5 MINUTES PALM DESERT PLANNING COMMISSION MAY 19, 2009 their lighting and doing their electrical systems, which gave them an opportunity to influence the energy efficiency to those systems. With the new dynamic, that work was going to be on the part of the tenant, so they didn’t have an opportunity to influence that or apply for a credit for that work because it wasn’t in their purview. So the one thing they had been discussing with the client is that they were going to encourage the tenants to design their individual mechanical systems, their lighting systems, and if they put in restrooms, the water consumption to low flow fixtures in order to comply with the intent of Leed, but they couldn’t mandate it nor presume that they were going to get credit for it. So what they had been doing with their client is going through an analysis of all the Leed prerequisites and points that, had they been pursuing this and been able to get a certification, would have complied with. They have been advising them of all the things they are still doing within the project, but where they would fall short was because they didn’t control their own destiny. So that was why when Mr. DiVito said that they were not assuming they would be applying for certification was because they didn’t believe they could get to the minimum level because they weren’t building enough of the building. What he could tell them was that the Leed approach still had to do with a site’s sustainability and renewable materials, and they were still pursuing a number of those initiatives as it relates to public transportation and connectivity to the community as it has to do with recycling construction waste, reducing pollution during the construction process, water efficient landscaping, and reducing consumption of potable water for non-potable uses. They were going to shade 50% of the parking structure. They were also trying to select recycled material, so they were very sensitive to the Leed idea, and if with any kind of luck he passes and becomes a Leed certified AP next month, they were very sensitive to that and so was their client. They just wanted to be totally candid in that they didn’t believe they could get certified because they don’t control their destiny on enough issues. Commissioner DeLuna noted that Commissioner Limont asked about solar panels. She asked if that was something that would work into his idea for the project. Mr. Dempster replied that the challenge here is that it wasn’t his client consuming electricity, it was the tenants. They do a lot of retail work, and pursuing Leed certification for a retail building is a bit of a 6 MINUTES PALM DESERT PLANNING COMMISSION MAY 19, 2009 challenge, the USGBC (United States Green Building Counsel) is presently studying it, and there’s a pilot program to create a retail certification. They only do shell, not tenant spaces. They explored it previously, and quite honestly what they were advised is that the tax credits for using solar power were grandfathering out under the previous administration. The solar providers they contacted here in the valley have said that they weren’t sure what the implications were of tax credits that will be under the new administration. So they were in a bit of a “no man’s land”. It is extraordinarily expensive. It was surprising to them the cost of providing those panels versus the rate of return if they are not actually consuming the electricity; the tenants are. So the short answer to the question was it was not presently being considered. Commissioner DeLuna indicated that he mentioned the expense, and she believed that the City has commercial loans available for such energy saving. Mr. Dempster explained that went beyond his purview for this project. He was only designing it. If they had any other questions, he hopefully would have the answer. Commissioner DeLuna thanked him for his thorough answers. Mr. Dempster asked if they would like a dog and pony show, or if they would just go with Mr. Stendell’s. Chairperson Tanner asked for his presentation. Mr. Dempster said when they were last here over a year ago, some of them reviewed it as Planning Commissioners and some were on the Architectural Review Committee. They had an opportunity to get the benefit of all of their advice and insight. They’ve been back through the Architectural Review Committee last Tuesday and received their approval, because they were smart enough to carry forward the advice from last year to this year’s redesign. But as they all knew, the economic climate this year was very much different than it was last year and the year before. Fortuitously for them, there was an opportunity to still go forward with the project by minimizing some of the spaces that were previously included which are presently in this day and age not as economically feasible. It was still the design intent to create a synergy between The Gardens as it is still owned by the same client from the same side of the street on opposite sides of the corners. So they were still envisioning that the use of the 7 MINUTES PALM DESERT PLANNING COMMISSION MAY 19, 2009 materials, the colors, the textures, and the design approach were sympathetic across the street. The idea was that the corner elements are still sympathetic on either side between the Gardens and El Paseo Village. They made an error in the documentation that was submitted, and he apologized because ultimately it was his fault; it was going to remain under 30 feet. Ryan was very kind to point that out immediately upon submission, so they submitted revised drawings and would stay at the 30-foot maximum height. Mr. Dempster said that the original composition and this composition still very much considered shadow, the play of light, and changes in planes to take advantage of the incredible light quality here in the desert. They modified parapets because they really do want this to look like a collection of buildings. It is a symphony and not just one note and they really wanted it to have some variation so that when driving down the street, it is experienced at different levels. The interesting part about retail buildings is that they are experienced on foot or from a windshield, so when they look at renderings and flat drawings, it is a bit misleading because they never really experience the building like that. For those that live here and have the sheer joy of using El Paseo a lot, they really focus on the storefronts and everything at eye level or when driving by and the stuff that happens up top becomes very much subservient to that which happens at the street level. So they tried to compose a back drop to the buildings and really let the tenants sing, because that’s what really happens on that street. It’s all about the tenants and not much about the buildings. As an architect, that pained him to say that, but that’s their job. He noted that Mr. Stendell mentioned that they had been working with staff to try and increase landscape along the southern edge of their neighbors. They might recall that one of the issues forefront in everyone’s discussion last year was the influence of the elevated parking deck on their adjacent neighbors. Fortuitously, that issue had now gone away and they were able to do what they had always intended, which was create a landscape buffer which separates their project, more importantly the light and noise, away from the adjacent properties. Through staff’s recommendation, and insistence, they increased the landscape buffer that helps create a visual barrier between the tennis court on the adjacent parcel and their property. Mr. Dempster mentioned that one of the Leed initiatives has to do with recognizing that there is a certain amount of solar heat gained by the sun’s rays heating up building materials and they let off heat in 8 MINUTES PALM DESERT PLANNING COMMISSION MAY 19, 2009 the evening; one of the initiatives they very much supported was shaded parking. One of their credits is shading 50% of the parking area, so this design between the use of trees and the parking coverage would actually accommodate that. That was one of the things that while they might not be getting accreditation, they were very sensitive to implement as much of that information as they could. Commissioner DeLuna suggested putting solar panels on top of the parking structure. Mr. Dempster said that originally they had discussed that as well. He wouldn’t bore them with all the trials and tribulations of the analyses they’ve gone through, but they are very heavy. The support mechanism to support solar panels would take a pretty sturdy column and one of the impacts of that is the impact of the column size on the parking stalls and the intrusion in, but he wouldn’t bore them with the minutia, but it was something that they looked at. He wasn’t going to tell them no, but he would tell them he didn’t think right so right now. Regarding the breezeways, Commissioner DeLuna pointed out that they have an opportunity, because unlike The Gardens which has Saks recessed and has a nice courtyard in the front, this building does not have that and she saw the opportunity with two breezeways, instead of just having canyons going from the front of the building back to the parking, it was an opportunity to create a passive courtyard situation. Mr. Dempster showed a drawing and described it as a quiet respite place with water and seating. Commissioner DeLuna identified a curved path and what appeared to be benches and asked if that was what he was showing them. Mr. Dempster said they had a sketch of that particular area. To her point, one of the things that these are supposed to be sort of was a respite place between the parking and the street. Their client was really saying that they need a place for the employees to go rest, or if someone just wanted to get out of the heat, there just needed to be a quiet, but probably not contemplative area, something similar to what she was describing. So the idea was that they would put an art wall or some sort of water feature within the paseo itself and the base of it would be a seating off of the main circulation path. It would also introduce some landscaping and some other ideas against that wall to just soften that space, because while ultimately it is just a 9 MINUTES PALM DESERT PLANNING COMMISSION MAY 19, 2009 connective tissue between the streets, it really needed to do more than that. So they very much supported her suggestion. Commissioner DeLuna asked if they intended at any future date to add a second story to what’s now just the retail space. Mr. Dempster said they were not making any provisions structurally, and he could tell them that from past experience one of the challenges in trying to do that is unfortunately, every time there is seismic activity in California, the codes change and their ability to forecast what that requirement was going to be into the future, they would build in redundancy that they might not be able to use. So they very rarely found it to be a cost effective planning exercise. In the event of an earthquake and the codes and requirements changing, they might not be able to use that which they provided, so presently the discussion was no. Commissioner DeLuna thanked him. Commissioner Schmidt asked if they had built in the possibility of retrofitting solar and so forth on the building structure in the future. Mr. Dempster said that certainly the roof design would support the dead load of solar panels, yes. Commissioner Schmidt asked if once the buildings were occupied and they see who the tenants are and what they use, it could be done. Mr. Dempster said it was possible, yes. Commissioner Schmidt thought he should plan for that. Mr. Dempster said structurally they have planned for it. Commissioner Schmidt asked about their construction timeframe, assuming this project is approved. She referred to a sign that said 2010, but asked if they are really funded and ready to proceed. Mr. Dempster replied emphatically yes. They stood before them ready to actually build the project. Commissioner Schmidt asked about the timeframe on Saks and if it would open at the same time. 10 MINUTES PALM DESERT PLANNING COMMISSION MAY 19, 2009 (Mr. Mike Radis of Davis Street Land Company spoke from the audience and said it would be 2011.) Commissioner Schmidt asked if there was any significant reason for that, or if it was because of the economy. (Mr. Radis confirmed that it was because of the economy.) There were no other questions for the applicant. Chairperson Tanner asked if anyone wished to speak in FAVOR of or in OPPOSITION to the public hearing. There was no one and the public hearing was closed. Chairperson Tanner asked for Commission comments. Commissioner Campbell stated that she was in favor of the project when it came in front of them before with two stories, and she was now even more in favor of it with one story. The neighbors to the south should be even happier without the two-story parking. All the landscaping that would be done on the outside was a lot more than the El Paseo Village had when they were there. She was all in favor of the project and moved for approval. Chairperson Tanner seconded the motion. He asked if there was any further discussion. Action: It was moved by Commissioner Campbell, seconded by Chairperson Tanner, approving the findings as presented by staff. Commissioner Schmidt asked if there were any conditions of approval. Mr. Stendell explained that they were doing the first amendment to the precise plan, conditional use permit, and also the two development agreements that were approved by the City Council. All of the conditions from the originally approved project were still in place with the way things were written with some slight modifications to accommodate the new project. He wanted to make sure he addressed this because he wanted the Commission to have the most up-to-date information. The way they had presented it this evening, because they were attempting to accommodate the schedule and support El Paseo and try to move this through, the original project had a condition for Leed. It was not to be Leed certified, but to build the project to the standards of Leed Silver. Because of the nature of Leed, they could not give a Certificate of Occupancy and know whether they’ve achieved Leed or not, it comes after the fact. So in this new project, with where they’re at, and they were submitting documentation to staff to review the type of Leed approval they could go after, staff was not at a spot where they were comfortable saying yes they can do it, or no they can’t. But a lot of those issues were being dealt with 11 MINUTES PALM DESERT PLANNING COMMISSION MAY 19, 2009 and would be brought up at the study session with the City Council on Thursday. So the way they teed this up for them today was they removed all of the components to the two development agreements that were in the first project in an attempt to look at the project as it is today, which was definitely a project approvable by this Commission. And then they would study the Leed aspect as they go forward, especially on Thursday, and then by the time they got to City Council they would have it worked out. They were trying to accommodate the project and move it forward in the interest of serving El Paseo. Based on that, Commissioner Limont said she agreed with both Commissioners in that she thought it was a great project and liked it a whole lot better. It was much more in keeping with El Paseo and was a much classier design. Before she felt like they had five pounds of cement in a one pound bag and they were just putting way too much in there. So she applauded them. However, they are the City that took 811 up to Sacramento; they are the City that is trying to be the beta for the State in terms of energy consciousness and putting it into play. They have a very active Council that’s really moving that forward, so she encouraged them when they sat down at study session, and she did not know engineering, but thought they could put in whatever they needed into the structure so that down the line, if they have the ability, or if the tenant had the ability to put in solar or have better insulation, whatever the criteria might be, that they are able to do it without too much redoing. But great project. Commissioner Schmidt was also concerned about the project not being Leed silver at least, because they have all sort of committed to that. She knew that it was expensive and asked if the Commission was being asked to simply move ahead with this so that Council could review it for final approval, or if they needed to pass this with a condition that it should be Leed certified in some sense, if they had that ability, or if they passed it with a strong recommendation that every possible way be explored for energy savings on the project. It’s a big project and it just can’t be ignored. She was very pleased with this project. She thought it was wonderful and they did an amazing job. And she was happy to hear that they were using every conservation source that they possibly could, including recycled material, etc., and that spoke volumes. But she really was concerned. She wanted their project to proceed, but also wanted them to understand that she would be looking for at least solar somewhere on those buildings in the near future. Commissioner DeLuna was in agreement with the other two Commissioners who spoke. It was her understanding that in Leed certified construction, that it’s not one list of what they must do, it included all sorts 12 MINUTES PALM DESERT PLANNING COMMISSION MAY 19, 2009 of parameters. So even though she understood that they have some personalization that they were dealing with in terms of tenancy, it was very possible, and she didn’t know all of the standards at the moment, but it was possible that they could incorporate a lot of the myriad of choices into their part of the construction so that it could be certified on its own, rather than waiting for a tenant to complete a process and have it be up in the air about whether or not it would just be Leed standard construction or Leed certified construction. Because of our energy conservation bill, AB811, they have a real focus on that and have an obligation to carry through what it is that they worked so hard to bring to Sacramento, and she thought it was very important, particularly in a landmark project such as they were proposing. She thought it was a wonderful project and supported it wholeheartedly, but she would like to see more attention to the standardization of the Leed certification process. There were no other comments. Chairperson Tanner called for the vote. Motion carried 5-0. It was moved by Commissioner Campbell, seconded by Chairperson Tanner, adopting the findings and Planning Commission Resolution No. 2501, recommending to City Council approval of Case Nos. PP 07-10, CUP 07-18, DA 07-03, and DA 07-04 Amendment # 1, subject to the attached conditions. Motion carried 5-0. C. Case No. CUP 09-174 – GORDON L. BELMONT, Applicant Request for approval of a conditional use permit to allow the operation of a massage therapy service in a single room by an individual certified therapist at the “Karl Vasquez Salon and Spa” located on the northeast corner of Parkview Drive and Highway 111 at 72-180 Highway 111. Ms. Renee Schrader reviewed the staff report. She noted that the applicant came to staff to have a grand opening tent sale and to clear up exactly what had been going on with the Department of Building & Safety. She had a letter that was issued earlier that day and activated as of today, basically with the understanding that they have a conditional occupancy right now. What happened was that when this building was sold, somewhere along the line the Certificate of Occupancy was not in the process, so when the owner came to request a copy of the certificate, an inspector had to go out and it was discovered that a few tenant improvements had happened without the proper inspections, and those were still under review. A 30-day conditional occupancy had been issued, which allowed staff to issue a Temporary Use 13 MINUTES PALM DESERT PLANNING COMMISSION MAY 19, 2009 Permit for the tent sale, since they were in operation. She had the letter if they wanted to see it. Aside from that, as conditioned, there weren’t any additional issues on this project and staff recommended approval of Case No. CUP 09-174. Commissioner DeLuna asked if she was talking about Treatment Room No. 2. Ms. Schrader pointed it out on the map. She indicated that the smallest one was No. 4, which would have been No. 2. Commissioner DeLuna noted that Room No. 2 was highlighted and just wanted to make sure which one she was referring to. She thanked her. Commissioner Limont asked on the proposed hours of 9:00 a.m. to 8:00 p.m., if that meant they would be gone at 8:00 p.m., or if the last appointment was at 8:00 p.m. Ms. Schrader thought it meant close the doors at 8:00 p.m. There could be some clientele still left over, but there were no other appointments being taken. She thought the applicant was better equipped to answer that question. Chairperson Tanner opened the public hearing and asked the applicant to address the Commission. MR. GORDON BELMONT, 76-245 Fairway Drive in Indian Wells, stated that he is the owner of the property. He bought this a year ago November and if any of them were familiar with the building, there have been some vast changes. He has lived in the desert, in Palm Desert and Indian Wells, since 1993. To his recollect, no business of any kind in that building had ever been a success. That was probably due to the condition of the exterior. They spent over $80,000 in upgraded landscaping, and he just past $500,000 total in renovations in and out of the building. They tried to make it a show piece. If they have the opportunity to go into it, they would understand what he was talking about. If they haven’t, he welcomed them to do so. To answer Commissioner Limont’s question, the salon would take its last massage appointment at 8:00 p.m. Therefore, given the fact that it’s an hour massage and with clean-up, at the worst they were talking 9:30 p.m. He asked them to please keep in mind that to the north of him, it was at least 80-100 feet across the Magnesia storm channel, which separates his property from the residences in Rancho Mirage. That storm channel was vastly littered and he paid to have it immaculately cleaned, and said he got rid of most of the homeless that were living under the bridge. As well, he planted bougainvillea with the Rancho Mirage residents’ permission along the wall to the south of their property. In other words, that wall abutting the storm 14 MINUTES PALM DESERT PLANNING COMMISSION MAY 19, 2009 channel so that it would pleasing to look at. He explained there is an alley between the commercial establishment on the northeast corner of the channel and Highway 111, and the alley is behind that commercial building, between it and the first residence to the east. It is a utility easement and was littered with anything from mattresses, to tree trunks, and shopping carts, and the City of Rancho Mirage cleaned that up. So they have been sticklers for cleaning it up. They have 20 parking spaces, one of which is handicapped and four which are tandem. The approval given to him on the site, grading and site review permit, was that the tandem only be used by employees. They didn’t want to have to ask a client or customer to move their car. Mr. Belmont said he was just the owner of the property. Mr. Vasquez was the owner of the salon, i.e. the main tenant, and to make it a true salon, he came to him and said they needed something more than just a salon. They have the four rooms along the front and the southerly-most, he believed it was No. 4 on their diagram, would be two additional hair stations. Something they probably knew much more than he did about hair salons, the employees are not there from opening to closing. They have a few appointments in the morning, maybe a few in the afternoon, maybe one or two in the early evening. He has witnessed salons along El Paseo where very few employees are there throughout the entire day. Insofar as the massage is concerned, he was told by his masseur that a maximum of six per day could be given physically, and his masseur is a very fit 55-year old licensed therapist. It is impossible to give a quality massage after six. He stated that both he and Mr. Vasquez were present to answer any questions. There were no questions for the applicant. Chairperson Tanner asked if anyone wished to speak in FAVOR of or in OPPOSITION to the proposed project. MR. KARL VASQUEZ stated that he was in favor of this project. To give them a little background, he was born here in 1963 and went to Washington School, Lincoln School and Palm Desert Middle School. His father came here in 1959 to teach at the College of the Desert and taught there until the day he died. His mom has been a hair dresser here locally her whole life, so he was second generation. She started with Randy Ventura, who had the first salon on El Paseo which was of any essence. He grew up around the family business, two blocks away from the property site. He has a long history to that 15 MINUTES PALM DESERT PLANNING COMMISSION MAY 19, 2009 area and it made sense that he would operate a business within the boundaries of where he grew up. He was available to answer any questions. There was no one else wishing to speak and Chairperson Tanner closed the public hearing. He asked for Commission comments. Commissioner Limont asked Ms. Aylaian if in the past, with regard to these types of businesses, they asked that they be closed by 8:00 p.m. Ms. Aylaian said that the idea behind a conditional use permit is to look at the conditions appropriate to that specific location. If there was a particular business surrounded by some other uses they thought would be incompatible with a night use, then hours would be set appropriately. This business was really isolated by the roads and by the wash from anything adjacent to it, and at a staff level they didn’t see any reason to condition it upon an earlier closure. Commissioner DeLuna said she would love to see that intersection be successful. She has driven by it for years. She only saw one ingress and egress for parking. Coming south on Parkview, she asked if a left turn could be made safely because it intersects with vehicles stacking to make a right turn. Ms. Schrader said she wasn’t an expert and could only answer by view, but it didn’t look like a safe choice when looking at it. Mr. Bagato referred to an aerial picture which showed a painted area which says cars are not supposed to park there, although people might at some point. But cars are supposed to be able to make a left-turn in. The only way is by trying to keep people from taking up that entire space. So they could see the two lines, those were supposed to keep people from moving in there so they could do that, but it was just a condition of the site and there was really no way to modify it. Commissioner DeLuna asked for confirmation that there wasn’t a center lane between the two where someone could hover to make a left-turn. Mr. Bagato said no; he indicated there was no median there and no possibility for an extra turn pocket. Commissioner DeLuna thanked him. Commissioner Campbell noted that all the times she has been through there, cars being stacked up there preventing a left-turn coming from Highway 111 had never been a problem. Commissioner Schmidt asked for clarification that Mr. Bagato said that coming off of Highway 111 making either a right or left turn onto Parkview, they couldn’t make a legal left-turn into that parking lot. Mr. Bagato said they could, they just didn’t have a dedicated turn lane or median there, but they could make a left. Ms. Schrader also confirmed that vehicles could come off of Highway 111 and turn left into there, but it was true there was a short 16 MINUTES PALM DESERT PLANNING COMMISSION MAY 19, 2009 amount of time since there was no dedicated access lane at this point. But it was possible to make that turn in from Highway 111. There were no other comments. Chairperson Tanner asked for a motion. Action: It was moved by Commissioner Campbell, seconded by Commissioner Limont, approving the findings as presented by staff. Commissioner Schmidt stated that she was there two or three times the last week or so and there were cars in the parking lot. She asked if the business was open now. Mr. Belmont confirmed that the business was open. He said they have a Temporary Occupancy Permit and the first three weeks were for training: training to hire new people, painting the inside, replacing air conditioners, that kind of thing. So they had a lot of tradesmen in and out of the building. Primarily it was training and weeding out those stylists that Mr. Vasquez did or did not want, because just taking one’s word of mouth he learned from him doesn’t do it. He brings them with a student or a victim and says create this kind of hair do or this kind of style and they show him what they can do. Commissioner Schmidt also noticed that there was signage out in front advertising for a stylist and massage therapist. It appeared there were six employees that have made the cut, because there are three manicurists and hair stylists. Mr. Belmont said that was his fault. That should be a parenthesis with a No. 1 in it, so it didn’t look like 1, 2, 3. He blew it and he said to them that these were parenthesis and by his instruction did it that way. Commissioner Schmidt asked with the massage therapist being on the sign, it was an expectation of his. Mr. Belmont said yes. Chairperson Tanner asked if he’d hired a massage therapist at this point. Mr. Vasquez said he has not hired a massage therapist. 17 MINUTES PALM DESERT PLANNING COMMISSION MAY 19, 2009 There were no other comments or discussion. Chairperson Tanner called for the vote. Motion carried 4-1 (Commissioner Schmidt voted no). Commissioner Schmidt explained that she was not really happy that construction was commenced and still ongoing before the proper permits. She felt that this should be continued until things are properly done and i’s are doted and T’s are crossed. So her vote was no. It was also moved by Commissioner Campbell, seconded by Commissioner Limont, adopting the findings and Planning Commission Resolution No. 2502, approving Case No. CUP 09-174, subject to conditions. Motion carried 4-1 (Commissioner Schmidt voted no). D. Case No. ZOA 09-104 – CITY OF PALM DESERT, Applicant (Continued from May 5, 2009) Request for a recommendation of approval to the City Council of a zoning ordinance amendment updating and revising Palm Desert Municipal Code Section 25.68, Signs. Mr. Bagato noted that there was a study session on May 12. Basically, his presentation would highlight those provisions, the changes since that study session, as well as the previous discussion issues on May 5. He noted that several pages indicated in red were included in the Commission’s packets. The red lettering indicated either new words or strikethroughs for removals. They were modified words and sentences to clarify portions of the code for better understanding and clearer purpose. Secondly, they reviewed signage and proposed 16-inch high letters maximum for freeway fronting signs, depending on the overall length of the sign. He included a drawing demonstrating the difference between the 12-inch and 16-inch high letters. Staff felt that 16 inches would be appropriate as a maximum, depending on the name size and could be designed without clutter. The last option was the Creative Sign Program. There was some discussion about amending some of the wording so that they weren’t necessarily encouraging businesses to ask for exceptions or promoting it, and instead looking at it more as just criteria to allow the process if someone wanted to do it. There was also some discussion about eliminating it, so staff had two proposed actions. The first was to amend the more restrictive code, which again had limitations that Architectural Commission could only approve a sign that would be no more than 20% larger than what the code allows, and it also did not allow prohibited signs to be approved, so no one could ask for a billboard, a pole sign, or a neon- 18 MINUTES PALM DESERT PLANNING COMMISSION MAY 19, 2009 flashing sign as a creative sign because it was not allowed. But the new wording was added to be stricter and make it clear that it is just a process and was not encouraging it. Before them was his recommendation and that was that the Planning Commission, by minute motion, do three separate things in minute motion: approve the majority of the draft sign ordinance including the standards for real estate signs; secondly, approve the new standards for freeway signs with 16-inches being the maximum height as long as it isn’t cluttered along the building; and the last option was approving the amended restrictive standards for creative signs or remove it all together, and then adopt the resolution. Staff would revise the ordinance to fit into the motion. He asked for any questions. Commissioner Schmidt asked when Mr. Bagato said the Planning Commission draft, if he was referring to the redlined version. Mr. Bagato replied yes, the other pages that weren’t included, plus the redlined version. Regarding non-illuminated signs facing the freeway, Commissioner Campbell commented that when going by at night, they really couldn’t see whose business it is. She asked if all the letters were 16-inches and everybody had the same size and the same font, if they could all be illuminated the same. Instead of one blue, one red or one green, it if it was all neutral, and every single one was the same. Mr. Bagato said that could be a recommendation by the Planning Commission. The discussion of the Signage Subcommittee was that they didn’t want to continue what was already happening, and the current illuminated signs were an issue. Staff’s recommendation in response to that was to propose non-illuminated signs. Some of the Subcommittee members agreed, some didn’t. The business community didn’t agree. He also mentioned that Dick Baxley of Baxley Properties couldn’t be at the meeting, but he did write a letter and requested that there be some kind of illumination and he although he preferred 16 over 12, he would like to see 20-inch high letters. Mr. Bagato thought that 20-inches could look pretty big and cluttered, so he wouldn’t recommend 20. From staff’s position in working with the Signage Subcommittee, non-illuminated was proposed; he could request maybe reverse channel, which appeared as a halo illumination and only back lighting. It would provide some illumination. To give some consistency, they could all be a white color. They could also potentially allow an exterior light fixture to light the wall as a solution. He thought the concern was having these different colored neon signs, and the problem when having federally trademarked signs, if it is red, they couldn’t control that not lighting up red. Then the next one could be black with white background and it could appear cluttered. 19 MINUTES PALM DESERT PLANNING COMMISSION MAY 19, 2009 Commissioner Campbell noted that the attorney’s wording was to modify all signs facing the freeway and shall use a single color except for federally trademarked signs. Mr. Bagato said that was correct, but if they lit up, that color would light up differently, and that was their concern. As well, the Subcommittee didn’t want too many of these different colored signs lighting up. Commissioner Schmidt asked if the Subcommittee studied rear-lighted signs. Mr. Bagato said no. Chairperson Tanner noted that when driving down the freeway, most of the back of the buildings are facing the interstate and are very well lit because of where they are. If they have gone out at night, just the parking lot illumination brings the signs out. Mr. Bagato noted that most buildings have wall scones on them that light up; they have parking lot lighting, so this isn’t a pitch dark environment. Staff’s position was if they have a sign up, then it at least serves as identification for someone driving around the back looking for deliveries or looking for the spot. It wasn’t meant to advertise to the freeway. It’s not pitch dark out there, so there was some illumination from parking lots as well as the building. Commissioner Limont indicated that was one of the discussions in the study group that signs are for identification, not for advertising. That was the key issue. As long as they were identifying the building, because the entrance is from Gerald Ford or Dinah Shore, that’s where their signs are located. Regarding the difference in letter size from 12- to 16-inches, Commissioner DeLuna asked how far these buildings were from the freeway. Referring to his handout, Mr. Bagato said that was a general drawing; buildings could be up to their property line, but there was an 80- foot railroad easement. So there was 80 feet between any of these property lines to the freeway because of the railroad, and there might be other easements back there, but at least 80 feet away. Most have some kind of driveway at least 24-feet wide and some have parking that would be longer; so some of these buildings are 100 feet away. The drawing was of a typical 30-foot tall building with 20-feet wide multi-tenant spaces, which is what Closet Tailor was designed to. It is a 30-foot tall building with 20-foot wide spaces, so he based that design on what 12 inches would like. And that would be over 100 feet away from the freeway. Commissioner Schmidt noted that at the study session they talked about picking a font, or two or three, to recommend or require. She asked if anyone had looked at that, other than for a trademark. Mr. Bagato 20 MINUTES PALM DESERT PLANNING COMMISSION MAY 19, 2009 explained that for code purposes, he was reluctant to identify a specific font type. It would be subjective, but Architectural Review could look at it and stated that it should be a clean, clear letter font style because to identify one by code, if that one font ever disappeared or changed and it was in the ordinance, they would have to go back to City Council to change it. He thought it would be problematic in specifying specific font types. He said it should be clean, clear and not cluttered so even though it was subjective, it was still clear cut. Commissioner Schmidt reiterated that Architectural Review Commission would determine what they would like to see on the building, with those criteria. Mr. Bagato said that was correct. Because most of the cases for the smaller businesses, these were multi-tenant buildings. If a building has more than three tenants, they automatically have to do a sign program and that has to go to Architectural Review. At that time they would be able to piggy back off of the sign program to eliminate clutter and to look at these signs and basically make them more uniform in a similar font style for every tenant. So they basically have two ways of reviewing these multi- tenant signs. On page 36 on abandoned signs and removal, Commissioner Limont noted that they took out the word “immediately” and put in “within 30 days.” She knew that they discussed this, but if it was an abandoned sign or non-conforming. Mr. Bagato indicated that with non-conforming, the language was going to be to get rid of that immediately. On page 35 he struck out that last sentence that was basically going to state that “…do not comply with this requirement shall be deemed lawful non-conforming signs.” And then they get removed. Commissioner Limont noted that was under lawful. Mr. Bagato said that abandoned signs were a little more tricky because that meant they would have to be able to take 30 days to identify that the business is out of business and to notify the property owner that they have x amount of days to get that sign off the wall. So it was kind of a different issue. They needed time to investigate that the business is no longer there before issuing a notice to the property owner that the sign is abandoned because the business is gone. Commissioner Schmidt noted that it could be 120 days. Mr. Bagato confirmed that it would be 120 days on the abandoned signs. Commissioner Schmidt said she was happy with the draft ordinance as it incorporated her proposed changes. Chairperson Tanner asked if there were any more questions of staff. There were none. 21 MINUTES PALM DESERT PLANNING COMMISSION MAY 19, 2009 Chairperson Tanner noted that the public hearing was open and asked if anyone wished to speak in FAVOR of or in OPPOSITION to the proposed amendments. There was no one and the public hearing was closed. Chairperson Tanner stated for the record that Commissioner Schmidt had some great suggestions and it appeared to him that she spent a great amount of time on this and her changes were incorporated into the new ordinance. They’ve had the same ordinance for quite some time and it was necessary to make some changes and he thanked Commissioner Schmidt for the time she spent on it and for coming to the study session last week and presenting them; job well done. He asked for a motion. Commissioner Schmidt asked about the Creative Sign program. Commissioner Limont stated that she wanted it removed. Chairperson Tanner asked if the proposed motions had to be done separately; Mr. Bagato said no, not if they all agreed on the Creative Sign portion. Staff’s position was to keep the Creative Sign section, but two options were presented. Commissioner Limont stated that she was in favor of everything but the Creative Sign section. Chairperson Tanner stated that he was also in favor of everything but the Creative Sign section. He asked for a motion. Action: It was moved by Commissioner Limont, seconded by Commissioner DeLuna, by minute motion, approving: 1. The majority of the Draft Signage Ordinance, including the new standards for the Non-Residential Real Estate Signs; and 2. The new standards for Freeway Signs allowing a maximum of 16-inch letter height, depending on the overall length of a sign, instead of 12 inches, so long as it does not appear cluttered on the building as determined by the Director of Community Development; and 3. Removal of Section 25.68.110 for Creative Signs from the Draft Ordinance. Commissioner Schmidt asked for clarification on the motion. There were two options for Creative Signs. “A” was to approve the amended, more restrictive standards; and “B” removed the Creative Signs. Chairperson Tanner reiterated that the motion was to allow a maximum of 16-inch high, 22 MINUTES PALM DESERT PLANNING COMMISSION MAY 19, 2009 non-illuminated signs and removal of the Creative Signs from the Draft Ordinance. Chairperson Tanner noted that there was a motion and a second. Commissioner Schmidt asked for clarification that if they were in favor of the Creative Sign section as amended, then they would be voting no; and if they wanted the Creative Signs section totally removed, the vote would be yes. Chairperson Tanner concurred. He called for the vote. Motion carried 4-1 (Commissioner Schmidt voted no). It was moved by Commissioner Limont, seconded by Commissioner DeLuna, adopting the findings and Planning Commission Resolution No. 2503, recommending to City Council approval of Case No. ZOA 09-104 as amended by the minute motion. Motion carried 4-1 (Commissioner Schmidt voted no). Chairperson Tanner thanked staff and Commissioner Schmidt for all their hard work. IX. MISCELLANEOUS A. Discussion of Staff Report regarding Massage Establishments within Palm Desert. Mr. Swartz stated that per Commission’s request, staff prepared a report outlining the number of massage establishments. They were broken down into two categories: independent stand-alone massage establishments, and massage establishments as a secondary use. He asked for any questions. Commissioner DeLuna stated that it was her understanding that there are 19 stand alone massage parlors currently in the city of Palm Desert. Mr. Swartz clarified that there are 19 approved massage establishments, 12 of them are stand alone, and 7 are a secondary use. Commissioner DeLuna explained that she was still concerned about the stand alone, not the ones located in other facilities, but the stand alone massage facilities. She indicated that per public record, there had been police activity in one recently and that only increased her concern about the safety, not only of the people who work in them, but the safety of the people who would frequent them. She didn’t think Palm Desert needed to have the number of 23 MINUTES PALM DESERT PLANNING COMMISSION MAY 19, 2009 them that we have, and didn’t think there was any reason to continue to permit them. Once again she was requesting a temporary moratorium on stand-alone massage therapy establishments. Commissioner Limont asked staff to go through the steps, i.e. they have to get a license from the State. Mr. Swartz said that was correct. Then the applicant would come before the Planning Commission. Commissioner Limont asked what they do beforehand. What did the State require this person to do to get a license? Mr. Swartz said he didn’t know all the steps, but knew they went through a background check. Ms. Aylaian added that they have to have a certain number of hours; there is a background check, and a licensing check that is actually handled through the City’s Business Licensing Department. What they look at in Planning is typically the land use, but there are requirements. There is a valley-wide model ordinance developed through CVAG (Coachella Valley Association of Governments) so that massage therapists could practice in more than one city at a time because originally each of the different cities would have its own requirements and a certain number of hours of practicing and certain checks. So a number of years ago CVAG got the valley cities together and they passed a model ordinance and most valley cities participate so they go through their licensing and produce records of their training and certifications in order to get their business license. With that in hand, then they needed to get a conditional use permit for the establishment itself. Commissioner Limont asked if they run into problems when “Person A” gets a license, stays a certain amount of time, and then decides that maybe they don’t want to live here or whatever, and someone else comes in and operates under their license. Ms. Aylaian asked if she was referring to the individual license and not the conditional use permit. Commissioner Limont said yes, she was just talking about someone that has an existing business. Ms. Aylaian couldn’t say that’s never happened, but did know that they do spot check massage establishments once a month and one of the things they check for is for each therapist there practicing, they ask to see a copy of their license and personal identification proving they are the person to whom the license is issued. Commissioner Limont clarified that we haven’t run in that; Ms. Aylaian wasn’t aware of that and reiterated there are procedures in place to check for that. Commissioner DeLuna said it was her understanding that the conditional use permit stays with the property, so if “Applicant A” is approved for a conditional use permit and say, three months later “Applicant A” doesn’t like the desert and wants to leave, another business can come in and occupy the same facility under that conditional use permit and perhaps have an entirely different business operation going on. Ms. Aylaian replied 24 MINUTES PALM DESERT PLANNING COMMISSION MAY 19, 2009 that as long as they operate within the strict parameters of the conditional use permit, they can do that. Once a business is abandoned for one year, the CUP would be invalidated and they would have to come in and go through the process all over again. Commissioner DeLuna indicated she was talking about someone who literally comes in on the heels of someone else; one’s out one day and another’s in the next day. They could do that. Mr. Bagato agreed that they could do that, but the original conditions applied if it has a valid CUP, such as number of employees, hours of operation, and the number of people at one time. They have a case right now where someone wants to take over one and they are limited to two employees and the new one has four. To do that, they have to go back through the CUP process and amend it. So although someone could operate within that facility if the CUP hasn’t expired, they have to operate under the same terms unless they come to the Planning Commission to modify it. Again, those provisions were in place to keep a two-employee business leaving and a ten-employee business showing up. That could happen, and if the City finds out that they are in violation, the CUP could be revoked or amended. Code Enforcement and the City Attorney could get involved in shutting the business down if they are in violation of the CUP. So those measures were there as well. Mr. Hargreaves also informed them that a new business had to get its own license. It doesn’t just come in and start. They had to come in and go through the whole process and get their own business license and if there are new therapists, they have to get licenses also. Mr. Bagato noted that Planning usually signs off on those business licenses, so if they see them, they double check that they are going to comply with the existing CUP. Commissioner Schmidt explained what was disturbing to her, and maybe Mr. Hargreaves could clear it up, but when it says that the CUP runs with the land, it made her think of covenants, like CC&R’s. What she was hearing them say was that it was not a permanent thing at all; it has a beginning, middle and an end. She asked if that was correct. Mr. Hargreaves said no, it does run with the land and is permanent as long as the conditions are complied with and the use is continuous. Now if there was a lapse for a year, or if there were violations, then they have the ability to revoke the CUP. They had to go through the process. Assuming that the business complies with the conditions and there aren’t any problems with the business. CUPs generally have a provision in them that allows the City to reopen them if there are problems with the business. Mr. Bagato recalled Augusta’s Restaurant and the issue with noise. That was a CUP that was revoked for noncompliance. It was the same thing. Since CUPs are studied for each specific location and the conditions of the adjacent land uses, as well as the operation of the business applying, it 25 MINUTES PALM DESERT PLANNING COMMISSION MAY 19, 2009 has to run with that land. As long as the business stays in compliance, it could be there forever. Most restaurants have CUPs, but if it stops operating and the space goes for a year without that use, then it becomes invalid. But as long as it operates under the same conditions and the City doesn’t revoke it, it can run as long as the business is in place on the same property. Commissioner Schmidt asked if it was the owner of the property who applies for the CUP, not the tenant. Mr. Hargreaves explained that the owner has to sign off on the application, because ultimately it becomes part of the entitlements on their property. Chairperson Tanner said it was usually the applicant who obtains the CUP. Ms. Aylaian said typically they do, but the owner has to approve it. For instance, the applicant tonight was the owner of the property. Mr. Hargreaves clarified that the CUP is an attribute of the land, it’s not an attribute of any particular person so if the owner sells the property, the CUP goes with the property. Chairperson Tanner noted that they’ve had applicants come before them who were renting space and were requesting a CUP, not the owner of the building. The owner of the building has to sign off on the space, so the applicant comes for a CUP and they either grant it or don’t grant it. Ms. Aylaian said that was correct, but the owner of the building on those, when they actually get an application from an operator, the owner has also signed off on that application. Mr. Bagato said that most of those applicants sign a contingent lease stating that they would lease contingent upon receiving approval. So the property owner has to be involved in the sense that they are authorizing that person to apply, but it wasn’t always the property owners appearing before the Commission, most of the time it was the applicant. Commissioner Schmidt asked if staff knew of any other massage applications forthcoming. Mr. Bagato said no, there weren’t any right now. Chairperson Tanner indicated that he and Commissioner Campbell were on the Planning Commission when this went through the Coachella Valley and there were several of the massage establishments raided, and he thought they might be painting each massage parlor with the same brush. He was very vocal against the City of Palm Desert becoming a massage therapy city; and still is. But he also noted that Commissioner Campbell made mention last time that we have approved these before and he thought they need to continue, but continue on a case by case basis. He wasn’t sure a moratorium was the answer to this. He thought just the research on the individuals coming before them was what was called for. That was his comment. 26 MINUTES PALM DESERT PLANNING COMMISSION MAY 19, 2009 Commissioner Limont agreed that there was a fine line of perception that they needed to at least be aware of. She went through a knee replacement surgery and she had to say that having a massage therapist was the key to her recovery and it was incredibly important. The person she went to was also in a medical building and was a massage therapist, etc. Her concern, and she was talking about perceptions here and where it got difficult was because how do they say to one person that yes, they can go have their business over here, because there wasn’t a high concentration. But if they looked at the map, there were 11 licensed massage establishments right in the El Paseo area. Four of them are on El Paseo and she would guess that they are somehow associated with salons or something along those lines; five on Highway 111 right in that area. So if they look at the map, they are concentrated in that area and that’s where they run into the possibility. It was no different than having a line of tattoo parlors; there is a perception that comes with it and she was happy to know that they didn’t have issues legally with licensing and issues along those lines. That was first and foremost. She didn’t know how to approach this, because she certainly didn’t want to see a lot more businesses in this general area. So how do they limit them? It was difficult to say, no, they couldn’t do it. Maybe a thought was to say this was something they really needed to discuss and so in the interim, maybe they needed a moratorium. Chairperson Tanner thought the discussion should be whether they should allow them or not. They have 19 establishments in Palm Desert and do they want to allow any more or not. Commissioner Campbell asked if they wanted to allow more restaurants, or any more tattoo parlors? Commissioner DeLuna thought it was different. Chairperson Tanner asked how much more discussion and how much deeper they needed to get into whether it’s right or not right. Commissioner DeLuna explained that her recommendation never had anything to do with massage therapy in connection with salons and other establishments. It was specifically the stand alone ones. She was still concerned with public safety and would like to examine it a little more closely and that’s why she was calling for a temporary moratorium on stand along massage establishments for 90 days, or 60 days, or 12 months. Commissioner Schmidt indicated her concern was similar to what Commissioner Limont was talking about. What really disturbed her is that the only vehicle they seem to have, and hoped Mr. Hargreaves was listening, is the CUP which runs with the land. In her past history, that was a very serious exception to the normal codes for zoning and business 27 MINUTES PALM DESERT PLANNING COMMISSION MAY 19, 2009 practices. She asked if there was anything else, or any other vehicle, or ordinances, that could accommodate these establishments other than a CUP. She asked if they had ever looked at that. Mr. Hargreaves explained that a CUP is a pretty flexible instrument. A CUP gave them the ability when a business comes forward to examine the type of the business, the area, and they could incorporate in the disbursement requirements, they could say there are too many massage establishments in this area, go somewhere else. It was very discretionary as long as they could identify a reason for denying it if that was what they wanted to do and they could craft it and say they would grant it for a year and at that time come back and show there haven’t been any negative impacts. There were a lot of different kinds of things they could do. It was really their most flexible entitlement. Commissioner Schmidt noted that the approval they granted this evening was forever, unless they go out of business or it’s abandoned. Mr. Hargreaves said that in the land use arena, there really wasn’t any entitlement that wasn’t forever, although CUPs were probably the one thing where they could say they would grant it for a year and review the situation after a year. They could do that. Commissioner Schmidt honestly felt, for a number of reasons, that since there were no forthcoming applications, it was a marvelous time to take six months or a year off in a sense and redefine what they want; she also agreed with Commissioner Limont regarding concentrations of any kind of business that is an exception to what is normal, like a clothing store or a restaurant. She quite honestly would find it difficult to turn down this gentleman this evening. She was making a statement by voting no. He just went in and started building a business and then got the permits. She didn’t like that, so she wasn’t in favor of giving him any kind of a conditional use permit until he had dotted I’s and crossed T’s himself. And they are in operation at the moment and the sign in front of the business said massage therapist wanted. The perception was that he knew they weren’t going to turn him down. Commissioner Limont thought they gave him 30 days right now. Mr. Hargreaves explained that until the CUP was issued, he couldn’t operate his business. He couldn’t have customers there or serve customers. If he went through tenant improvements and fixed it up, it was at his own risk. Ultimately, if the Planning Commission had turned him down, he would have been out of luck. Mr. Bagato explained that he could have operated as a beauty salon and did the massage after the fact, because the beauty salon is not a conditional use permit. Initially he was opening as a beauty salon. What was explained to staff was that the massage was added on. Ms. Schrader noted that there was a condition of approval in the resolution that said he couldn’t activate 28 MINUTES PALM DESERT PLANNING COMMISSION MAY 19, 2009 his conditional use permit for the massage until all of his issues with Building & Safety were resolved. In that regard, they were clear. He did receive a conditional occupancy that would only give the business 30 days, because staff wanted to put a timeline on that as well. They didn’t want that to be dragging on. Commissioner Schmidt reiterated that the applicant could operate the salon part of the business without the CO (Certificate of Occupancy). Ms. Schrader said that was correct. She thought he had been operating his salon for a while. Commissioner Schmidt commented that was frightening too. Mr. Bagato explained that with a temporary one, he could be open to the public. Ms. Schrader noted that he couldn’t operate the massage portion of it. Commissioner Limont clarified that it wasn’t until all the conditions were met that the CUP would go into effect. Ms. Schrader stated that once they voted to approve it, then Building & Safety would be notified that Planning needs to be notified when he is all clear to then allow the conditional use permit to be activated for the massage portion of his business. Commissioner Limont asked if they could have put a condition on that CUP this evening saying that it was good for one year. Could they have put those kinds of conditions on it? Mr. Hargreaves recalled they did that with Augusta’s. The initial CUP said come back in a year, and it was conditional, and as long as there weren’t any complaints, then it would go forward. It was a little aggressive to say that this conditional use lapses after one year, although he thought they could probably do that. Typically what they would do is identify specific concerns and say they would review it in a year. If these concerns haven’t been satisfactorily addressed, the CUP is over. Chairperson Tanner noted it is a conditional use and they have to establish the conditions part. With a moratorium, Mr. Bagato indicated that Chairperson Tanner’s point was they have to look at changing the ordinance or not, and that would be the reason for the moratorium. Part of the discussion would have to be, Palm Desert’s commercial core is El Paseo and Highway 111. He said there were 12 Starbucks between Deep Canyon and Target on Highway 111. That’s where the commercial is in Palm Desert, so any time they are going to have competing businesses like laundry mats and restaurants, the majority of the time they will be on El Paseo and Highway 111. He asked them to keep that in mind that is the location of the majority of our commercial area. Commissioner Campbell noted that the other ones are on Country Club Drive. That is beginning to be commercial too. Commissioner Schmidt asked for the definition of stand alone. Mr. Swartz replied that the two cases before the Commission at the last meeting were stand alone. He confirmed that they had no other associated uses. 29 MINUTES PALM DESERT PLANNING COMMISSION MAY 19, 2009 Commissioner Schmidt stated that she was in favor of saying no for a while, studying this, and coming up with a better way of doing it. Commissioner Campbell noted that it was under Miscellaneous so they weren’t voting on anything this evening. Commissioner Limont thought they needed to clarify it as they go forward, because that was only fair to folks coming in. They are walking a fine line where they don’t want to discourage people that want to do business in our city that are legitimate, or give the wrong perception that we’re the massage parlor of the valley. She agreed that they needed to take a look at it. Commissioner Campbell asked about cosmeticians and if they wanted to not allow hair dressers to come in. Commissioner Limont said it was simply perception. There is a perception about massage for some folks. Chairperson Tanner noted there was also a perception about nail studios. Commissioner Limont said absolutely, she didn’t disagree. Commissioner Campbell asked how many there are. Chairperson Tanner asked if that was something they were going to start looking at putting a moratorium on: nail salons. Commissioner DeLuna noted that for a massage establishment, the perception is different. The one she was referring to had recent police activity that had nothing to do with what might go on in a nail salon. Chairperson Tanner recalled that when they were talking about asking for a little bit of help from staff, the question was asked how many police calls, with the exception of the establishment on Monterey that was closed down two years ago, how many complaints and how many licenses have been pulled as a result of police activity. Mr. Hargreaves acknowledged that there have been problems. Chairperson Tanner said that was what they needed to look at. They didn’t have that in front of them. Commissioner Campbell pointed out they weren’t allowed to have that in front of them if the police were doing an investigation. Chairperson Tanner clarified after the ongoing investigation is over. Commissioner Campbell noted that then they were already out of business anyway. Commissioner Limont asked if staff could come back with anything that is public. Mr. Hargreaves agreed they could come back with a report as to violations, revocations, actions, including criminal actions in some cases. Commissioner Limont thought that would help. Commissioner DeLuna said it was her understanding that there were ongoing investigations, and those they would not be privy too, and those would not be included. 30 MINUTES PALM DESERT PLANNING COMMISSION MAY 19, 2009 Ms. Aylaian indicated that if they would like to direct staff to prepare a resolution to pass on to the City Council recommending a moratorium, they could bring it back at the next meeting, and with that they could provide whatever information is public information and didn’t involve any ongoing investigations for discussion at that time. They could take a look and see if there was a compelling reason to recommend a moratorium to the City Council. At that time they would also have a resolution to consider. Chairperson Tanner asked if it would be an agenda item at the next meeting. Ms. Aylaian said yes. Commission agreed it should be on the agenda. Commissioner DeLuna asked how they should direct staff. Ms. Aylaian said they just did. Commissioner Schmidt felt the City Attorney also needed to visit it. Mr. Bagato asked if they should have the Planning Commission direct staff by minute motion to draft a moratorium. Ms. Aylaian didn’t know that they needed an official motion. It appeared that there was enough interest and they requested that they put it on the next agenda for their consideration. Mr. Hargreaves asked for clarification that what they were looking for would then be a recommendation by the City Attorney as to how to address the civil and criminal issues that may arise with respect to this business. Commissioner Schmidt said yes, and the exposure for denial of some of these CUPs. Were they within their rights to say no to some applications? Mr. Hargreaves said they were within their rights to not allow them from here on out. They could decide they don’t like them and so they weren’t going to allow them period. Commissioner Schmidt recalled that last time he remembered that at one point there was a moratorium on all of them. Mr. Hargreaves said it was his recollection that at one point the only way a massage business could operate was in conjunction with a resort hotel or something like that. And then a decision was made to open it up, but they could close it back down, although the existing businesses would become legal nonconforming and would have a right to exist. If they were going to allow them, then with a conditional use process needed to have standards and each business needed to be judged against those objective standards which sometimes could be pretty subjective. But if they denied it, they had to give reasons, they couldn’t just say they didn’t like the way they looked. There had to be identifiable reasons and that’s why when they direct staff to come back with a resolution of denial, the Planning Commission makes particular findings for denial. They did that with the residential use this evening. They identified specific reasons they would not allow it. Ultimately, they could get challenged and a court could actually review that record and the court would accord due deference to the decision of the Planning Commission and the City Council. It rarely happens. Commissioner Schmidt thought it was important to hear the legal side of it before they do a moratorium. Commission Limont noted 31 MINUTES PALM DESERT PLANNING COMMISSION MAY 19, 2009 that they could send it to Council. Commissioner Schmidt understood, but even before they recommend it, she would prefer to receive this information first. Ms. Aylaian said that what they do and what the Council does by declaring a moratorium is essentially give the City Attorney and staff time to investigate changing the ordinance. It freezes the issuance of CUPs for massage establishments while the issue is further investigated. They could come back then and look at ways to revise the ordinance to reflect what the current appropriate use would be in Palm Desert for massage establishments. To clarify, Mr. Bagato thought he heard that the discussion was just for stand-alone establishments. If someone was doing a salon and wanted to request one, they weren’t asking for a moratorium on those. Commissioner DeLuna said that was correct. Chairperson Tanner asked for the pleasure of the Commission. Did they want this as an agenda item or miscellaneous conversation? Commissioner Campbell noted that it should be under Miscellaneous again. Ms. Aylaian said that it could an agenda item under Miscellaneous without being a public hearing item. Commissioner Schmidt asked for clarification that they couldn’t really take an action tonight. They wanted to be able to move on it next time. Ms. Aylaian said that was correct. Mr. Bagato asked Mr. Hargreaves if the Planning Commission, by minute motion, could move it to City Council, even under Miscellaneous. Miscellaneous is an agenda item, because it wouldn’t be a public hearing item or a consent calendar item at the next meeting. Mr. Hargreaves explained that the more formal way to do it would be to direct staff to come back with a resolution requesting that the Council impose a moratorium. If they wanted to do it by minute motion, they could go forward that way and no one would care or object. It would be no harm, no foul. If they really wanted to go forward, they could probably do it without running into any problem, but someone could say look, there is nothing on the agenda that alerted me to the fact that they were considering a moratorium. That was his concern. Commissioner Schmidt requested that it be an agenda item. Commissioner Limont concurred. Ms. Aylaian said staff would do that. Chairperson Tanner reiterated that the Planning Commission was asking for this to be an agenda item for their June meeting. Mr. Bagato didn’t know when the next scheduled meeting would be and someone could apply for a CUP within the three weeks for a massage parlor. They didn’t have a meeting scheduled for June 2, and they didn’t have anything for June 16 right now either. Commissioner Limont noted they wouldn’t have 32 MINUTES PALM DESERT PLANNING COMMISSION MAY 19, 2009 to approve it. Mr. Bagato indicated that someone could still apply until it gets on an agenda. Staff could let people know that a moratorium is being pursued if they ask for it. Ms. Aylaian agreed that they could advise applicants who might come in of potential change in direction coming at the next meeting. Commissioner concurred. Ms. Aylaian stated that at the next meeting where they have public hearing items scheduled for consideration, and at this point there wasn’t anything scheduled for June 2, but the next time they did, as a Miscellaneous item, staff would come back with a resolution they could consider, and some additional information, and they could actually take action on that Miscellaneous item recommending that a moratorium be recommended to the City Council. Action: None. X. COMMITTEE MEETING UPDATES A. ART IN PUBLIC PLACES Commissioner Campbell stated that the next meeting would be May 20. B. LANDSCAPE COMMITTEE Commissioner Limont commented that May 20 was their next meeting. C. PARKS & RECREATION Chairperson Tanner noted that the next meeting would be the first Tuesday in June. D. PROJECT AREA 4 COMMITTEE Commissioner Schmidt reported that the meeting was canceled. XI. COMMENTS None. 33 MINUTES PALM DESERT PLANNING COMMISSION MAY 19, 2009 XII. ADJOURNMENT It was moved by Commissioner DeLuna, seconded by Commissioner Schmidt, adjourning the meeting by minute motion. The motion carried 5- 0. The meeting was adjourned at 7:54 p.m. LAURI AYLAIAN, Secretary ATTEST: ____________________________ VAN G. TANNER, Chair Palm Desert Planning Commission /tm 34