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HomeMy WebLinkAbout12-15-2009 Draft Minutes MINUTES PALM DESERT PLANNING COMMISSION TUESDAY – DECEMBER 15, 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 Jill Tremblay, Acting City Attorney Bob Hargreaves, Deputy City Attorney Tony Bagato, Principal Planner Kevin Swartz, Assistant Planner Missy Grisa, Assistant Planner Ryan Stendell, Senior Management Analyst Christina Canales, Assistant Engineer Tonya Monroe, Administrative Secretary III. PLEDGE OF ALLEGIANCE Commissioner Schmidt led in the pledge of allegiance. IV. SUMMARY OF COUNCIL ACTION Ms. Aylaian summarized pertinent December 10, 2009 City Council actions. V. ORAL COMMUNICATIONS MR. TROY LAWRENCE, representing 73-640 Highway 111, Palm Desert, explained that he was present to discuss the tattoo issue. Chairperson Tanner explained that the issue was a Miscellaneous Item on the agenda and preferred to defer his comments until that time, if it worked out with Mr. Lawrence’s schedule. Mr. Lawrence said that was fine. MINUTES PALM DESERT PLANNING COMMISSION DECEMBER 15, 2009 VI. APPROVAL OF MINUTES Request for consideration of the November 17, 2009, meeting minutes. Action: It was moved by Commissioner Limont, seconded by Commissioner DeLuna, approving the November 17, 2009, meeting minutes. Motion carried 5-0. VII. CONSENT CALENDAR None. 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 09-236 – OMNIPOINT COMMUNICATIONS, INC., Applicant Request for approval to construct, operate and maintain a new 55’ high T-Mobile mono-palm wireless telecommunications facility consisting of six panel antennas, two GPS antennas, one emergency generator, one parabolic antenna, six BTS radio cabinets, coaxial cable running from the antennas to the BTS, power and Telco utility connection to be installed at 47- 900 Portola Avenue (APN: 630-250-045). Assistant Planner Missy Grisa reviewed the staff report and recommended adoption of the findings and the draft resolution approving Conditional Use Permit 09-236, subject to the conditions. Commissioner DeLuna noted that under the original description, the staff report indicated that the live palms would be 45’, 35’ and 30’. Then another one was mentioned at a 30’ height. She asked if that totaled five or six. Ms. Grisa clarified that it actually went through the Architectural Review Commission (ARC) twice and received approval twice. They originally had five live palm trees around it. They came back and wanted some changes made and went back through ARC and another live palm was added at the request of the ARC for a total of six. 2 MINUTES PALM DESERT PLANNING COMMISSION DECEMBER 15, 2009 Chairperson Tanner asked if eventually the 45’ tree would extend higher than the 55’ tower and would it in any way impact the broadcast of that tower? Would it ever have to be raised to a level higher than the palms around it? Secondly, in this conditional use, in the event that one, two, three, or all of the live palm trees die, are they replaced? Ms. Grisa replied that it was covered in the Landscape Maintenance Agreement, which was one of the conditions on the staff report. She deferred the first question to the applicant. There were no other questions for staff. Chairperson Tanner opened the public hearing and asked the applicant to address the Commission. MS. MONICA MORETTA, of One Venture, Suite 200, in Irvine, California, stated that she was present on behalf of T-Mobile Communications. She stated that T-Mobile Corporation reviewed the conditions of approval and they would comply with the conditions as presented in the staff report without any changes. With regard to the question, the facility as proposed right now is 55 feet top of the fronds. In the event that another carrier comes in, if the height didn’t work for them and they wanted to increase the height of the facility, it would be up to them to go to the staff and Planning Commission for review, but as of right now the 55-foot height worked for T- Mobile. Chairperson Tanner asked when the height of the palm trees exceeds the height of the 55-foot tower, if that in any way interfered with their signal. Ms. Moretta said it does. One of the things they discussed during the Architectural Review Committee is that having live palms at a certain height can interfere with the signal. In that event, they would try to place the taller palm tree in the area between the two sectors so that it would not interfere with the signal propagation. The shorter ones at 30- and 35-feet would face the other section, so when they grow, they would take a little more time. The variety of tree is Washingtonian hybrids and they take a lot longer to grow. But if that happens down the road, T-Mobile would probably have to look at the possibility of pruning the trees so they wouldn’t have any problems with the propogation. Commissioner Limont asked if this tower could be put back further into The Living Desert so that it wouldn’t be at the forefront of the property. Ms. Moretta explained that unfortunately, one of the issues they were having during the research of the placement of the facility, is that they had to work really closely with The Living Desert. They 3 MINUTES PALM DESERT PLANNING COMMISSION DECEMBER 15, 2009 wanted the facility to be in this area because it has easy access from the street for T-Mobile to maintain the facility. The other issue was if they moved further back, there is a lot of landscaped area which The Living Desert didn’t want them to touch. That was a special request that they not touch any of the living landscaped area in the park so that there isn’t interference with future development as well. Commissioner Limont confirmed that it could be moved back from T- Mobile’s standpoint. Ms. Moretta said yes, but not from the Living Desert’s standpoint. Ms. Moretta showed an aerial of different locations that they looked at within The Living Desert and the surrounding area. Commissioner Schmidt asked staff if any of the existing residents knew of this and if they were contacted in the vicinity. Ms. Grisa explained that legal notices were sent out to residents 300 feet around the project site and no letters were received in opposition or in favor. Commissioner Schmidt asked if 300 feet was from where the tower would be. Ms. Grisa said yes; she indicated it was noticed in the paper as well. There were no other questions for staff or the applicant. Chairperson Tanner asked if there was any testimony in FAVOR of or in OPPOSITION to the proposal. There was no response. Chairperson Tanner closed the public hearing and requested Commission comments or action. Commissioner Campbell felt the applicant did their homework, thought it was in a perfect location, and agreed with staff about the 55-feet height. Since there were no remarks from any residents, yay or nay, she moved for approval. Action: It was moved by Commissioner Campbell to approve the findings and recommendation as presented by staff. Commissioner Limont said she had a couple of comments before they moved forward. Personally, she thought it should be tucked back, regardless of what The Living Desert wanted moved or not moved. She felt that because it is the entrance to Silver Spur Ranch, and it was really a beautiful corner, really gorgeous, and she knew they just had balloons right now, but even though they brought it down to 55 feet, if they moved it back she thought it would mitigate the look of the fake palm tree a little bit more. One of her concerns as far as maintenance, she didn’t think a good job had been done maintaining St. Margaret’s tree. It has needed fronds for eight 4 MINUTES PALM DESERT PLANNING COMMISSION DECEMBER 15, 2009 months now. As of this morning, they still hadn’t been replaced. So as a City, they have to do a better job if they are going to have these mono- palms around. They have to do a better job making sure the folks in charge keep them looking like palms; otherwise, they look like towers. She had trouble with this placement, not with having a mono-palm, just in that location front and center. Commissioner Schmidt asked if the 300-foot radius was a City ordinance. Ms. Aylaian explained it is State Law, which was also replicated in the Municipal Code. Commissioner Schmidt asked if it needed a state variance at all. Ms. Aylaian said no. Acting City Attorney Jill Tremblay suggested that they get a second on the motion by Commissioner Campbell before discussing it. Ms. Aylaian explained that typically they get a motion and second before comments. Chairperson Tanner asked for a second to the motion. He indicated he would second the motion, but wanted to comment before seconding the motion. He thought they had come a long way in designing the mono- palms so that they are eye-appealing from all angles. He understood the concerns about being too close to the street, but at the same time the design itself was there and they have approved them in the past at other entrances that have been affected both positively and potentially negatively, so he seconded the motion to approve it and asked for further comments. Commissioner DeLuna asked if the living palms being placed around it would be between the mono-palm and the entrance that Commissioner Limont had a concern about. She asked if it would be buffered by the live palms rather than seeing the mono-palm first. Ms. Grisa displayed the site plan. She pointed out a maintenance road and stated that there would be live palms between the mono-palm and Portola. Commissioner DeLuna asked what the distance would be between the mono-palm and the intersection. Ms. Grisa didn’t know. She showed the distance on the site plan and guessed approximately 1,000 feet south. There were no other comments. Chairperson Tanner called for the vote. The motion carried 4-1 with Commissioner Limont voting no. It was moved by Commissioner Campbell, seconded by Chairperson Tanner, adopting Planning Commission Resolution No. 2516, approving Case No. CUP 09-236 subject to conditions. Motion carried 4-1 with Commissioner Limont voting no. 5 MINUTES PALM DESERT PLANNING COMMISSION DECEMBER 15, 2009 B. Case Nos. TT 34943, DA 02-01 Amendment #3 and ZOA 09-494 – EAGLE 6.5, LLC, c/o TED LENNON, Applicant Request for a recommendation to the City Council of approval of a tentative tract map with associated CEQA addendum to the SEIR for Stone Eagle, third amendment to Development Agreement 02-01 (Stone Eagle Development), and a zoning ordinance amendment to revise the Hillside Planned Residential Zone Ridgeline Map to allow the subdivision of 7.7 acres into six residential lots. Subject property is located west of the Palm Valley Storm Channel at the termination of Old Stone Trail (APN 652-090-002). Senior Management Analyst Ryan Stendell thoroughly reviewed the staff report and background of the case. He added a condition to the Public Works Department section, “Prior to issuance of a drainage permit, a water quality management plan shall be submitted to the Public Works Department for review and approval.” He also indicated that the developer raised an interesting question with regard to the condition for the bike path. The condition states that the developer will help the City with gaining an easement. But in the next condition, it says no occupancy permits for any future homes will be granted until those public improvements are done. So the question came up that he didn’t have control of whether or not they could get that easement and what should they do in that circumstance. That raised an interesting point. Discussing it with Engineering, Planning and the applicant, staff felt that if the Planning Commission were to approve this recommendation, that they include in their motion that prior to the City Council meeting, language be added to the construction requirement section of the Public Works conditions, that if the developer cannot procure those easements, that a bond be placed on file with the Public Works Department for the amount of the bike path so that the City could work on the easements, and if we were to get them, the City could complete the work. That wouldn’t hold up the developer on future homes that would occupy the site. Staff recommended approval of the findings and approval to the City Council of TT 34943, DA 02-01 Amendment #3 and ZOA 09-494, subject to conditions. Commissioner DeLuna asked about the cost for the proposed bike trail. Mr. Stendell said it hadn’t been defined yet. A dg (decomposed granite) bike path was being proposed, which is just a rural dirt bike path. This came up yesterday and staff didn’t have that figure. That is why staff requested that it be defined prior to the City Council meeting. 6 MINUTES PALM DESERT PLANNING COMMISSION DECEMBER 15, 2009 Commissioner DeLuna asked if CVWD (Coachella Valley Water District) owned it now. Mr. Stendell answered most of it. Commissioner DeLuna said that theoretically the City could pull that out of any negotiation with Stone Eagle and the City could negotiate directly with CVWD and with money from Parks & Recreation or the trails fund. That could be addressed outside and not have to make it part of this or a concession of the developer at all to even make it an issue. Mr. Stendell concurred. He indicated that the developer is willing to work with the City on it; it was a condition on the original project and a nexus was there. Stone Eagle is still willing to work with the City on it. He confirmed that he didn’t know the cost. Commissioner DeLuna asked if the terms “ridgelines” and “outcroppings” were legal terms or geological terms and asked who determined what was a ridgeline and what was an outcropping. Mr. Stendell explained that the actual definition of a ridgeline was incorporated into the 2007 Hillside Planned Residential zone update. He didn’t have it. Commissioner Schmidt read 25.15.015 Definition of Hillside Ridge, “A ridgeline that is formed by the junction of two or more sloping plains that project outward from a mountain range and descend toward the valley floor, more particularly identified on the exhibit labeled Hillside Planned Residential Zone Ridges on file in the office of the City Clerk. Ordinance 1136 Exhibit B 2007.” Commissioner DeLuna asked if they received copies of that. The answer was yes. Back to the question of what determines whether it’s an outcropping or ridgeline, Commissioner DeLuna said if that was the definition of a ridgeline, what is the definition of an outcropping? Mr. Stendell indicated that it isn’t defined in the code, but was very easily defined via numerous internet encyclopedias and was defined as, “An outcropping can be defined as a rock formation that appears above the surface of the surrounding land.” He said that usually when you hear the term outcropping, there is a small pile of rocks or a big pile of rocks. But looking at the screen, there was a good example of what staff’s intent was. When they talk about a ridgeline, they could obviously see what it was when they are standing back. Standing back, it’s very easy to see what ridgelines are. When they get to the lower parcels, like Stone Eagle’s, the definition of a ridge is much harder to accompany because they have main ridges and several outcroppings, which are large rock formations. Both are fairly sacred, but connecting the dots between outcroppings was not necessarily the right thing to do. Commissioner DeLuna asked if it was fair to say that ridges are outcroppings, but not all outcroppings are ridges. Mr. Stendell said yes. Commissioner DeLuna stated that a lot hangs on whether something is a 7 MINUTES PALM DESERT PLANNING COMMISSION DECEMBER 15, 2009 ridgeline or an outcropping and she was trying to determine specifically what the difference is because a lot hangs on the difference. Mr. Stendell said that ultimately, the difference is that each specific case…he thought what she was alluding to was they didn’t want to set precedence. This case is unique in that they’ve extensively studied the site and identified what they now believe to be the main ridge and then that comes to both Planning Commission and City Council for review. This was one staff member’s opinion, albeit they are the Planning Commission to decipher what they were presenting. There is a certain level of review given by the City’s commissions, committees and Council to confirm what they are presenting. In this case, he stood before them saying staff made an error. There have been other circumstances that never made it to Planning Commission because staff simply confirmed what the ridgeline map said by saying that’s a ridge, or something has made it to Planning Commission and they reconfirmed what the ridge is. Staff felt these circumstances are different and went through an extreme level of scrutiny. They have an exhibit called The Ridgeline Exhibit from the developer that shows both what is there, what is proposed, and what are outcroppings. That to him is what became apparent once he was all over this site. Commissioner DeLuna asked who decides in the final analysis when they go to say someone can build or they can’t build, who decides that it is a ridgeline and not an outcropping, because they could set a precedent. Mr. Stendell replied that the Planning Commission, and ultimately the City Council, bear the burden of deciding what a ridgeline or outcropping is. Ms. Aylaian said they rely on the Zoning Ordinance, which in this case is a map. The Zoning Ordinance refers to the attached exhibit which is a map and it shows a red line where there are ridges and where there are not, so that anytime someone comes in and says they are interested in building on their parcel on the hill, staff pulls up the map to see if there are any red lines going through it. If there is a red line going through it, they say they can’t build on that. What they are trying to do here is correct that map, which is the exhibit in an area where they believe they have the red lines in the wrong place. So that is the defining factor as to whether or not someone can build on it. They can’t build on it if the map to the ordinance shows that there is a red line there. Commissioner DeLuna asked if it required a zoning ordinance amendment if they determined that for instance if they were saying staff erred in calling something a ridgeline that’s not. It’s interpretive and if the Planning Commission considers that a ridgeline, then did it require a Zoning Ordinance Amendment to annex a portion of the property. Commissioner DeLuna clarified that she was trying to determine if they were setting a precedent. She was also trying to determine who decides. She knew they said there was a map with red lines, but what if someone challenged that. 8 MINUTES PALM DESERT PLANNING COMMISSION DECEMBER 15, 2009 Ms. Aylaian explained that staff could have had this stand alone as two separate issues. One, they could have said they erred in preparing the map that is part of the zoning ordinance and they need to correct that. The area where they erred is right here, and here is where they recommend that the ridgeline should be. That cleans up our ordinance and we continue to use that to enforce for anybody who comes and wants to develop anywhere in the hillside. That is our exhibit. That’s what prohibits them from building there. Then as a separate issue, staff would have come to them and said that Stone Eagle proposes a modification to their development agreement and a new parcel map and here’s what they want to do. Staff just brought them at the same time. She could tell them that not only is it not uncommon, she would say that every property owner who has come to them since the Zoning Ordinance ridgeline prohibition has been passed who owns property up there with a ridgeline running through it shown on the map has come and said we believe your map is wrong. In every instance staff has gone out into the field and done the same analysis Mr. Stendell was talking about, they had done a site survey and walked the site, and said no, we stand by the map and the zoning ordinance and we will not recommend to the Planning Commission or to the City Council that they change the ordinance because it is correct in our opinion. This is an instance where they came in and said we believe you are wrong and we’ve taken a look and agreed. Staff believed this needed to be cleaned up regardless of the action taken on Stone Eagle’s application in order to correct the ordinance that has been adopted. Commissioner DeLuna asked if they should bifurcate the issues. Commissioner Schmidt said absolutely. Mr. Stendell said they could, but explained that it wasn’t uncommon for staff to bring a project that requires a zoning ordinance amendment or a general plan amendment to the Planning Commission. Almost 90% of the housing development in the north sphere had to have that same condition. When they had the General Plan Amendment going through, they had numerous projects coming through. So they could split or not split them. As Ms. Aylaian indicated, this recommendation of the ridgeline could be recommended independently of this project. Commissioner Schmidt pointed out that staff brought the Planning Commission a sweeping proposal which amends an existing ordinance of the City, and she didn’t think he erred and was appalled that he would say that; she thought they all probably overlooked outcroppings when they were writing the ordinance. The reality is that they are seeing an outcropping cannot create a ridgeline, whether it’s a pile as big as their desk, or as big as this building. That was very dangerous to her. She thought that was what he was getting at. If they need to amend the ordinance, they need to amend the ordinance. They did not need to put it 9 MINUTES PALM DESERT PLANNING COMMISSION DECEMBER 15, 2009 into the approval or disapproval of a subdivision. At this point in time, a couple of questions she would like answered is if Stone Eagle actually owns the 7.7 acres or if it was a condition on an option to buy it. That was a very important fact to her. She, for instance, could go out into the parking lot here and ask for it to be subdivided and put into an R-1 zone. She read in the documentation that once it is effective, they will own the property. But she did not read anywhere that they presently own the property and she wasn’t too interested in changing an existing, because that took years to get to happen and it was going to open Pandora’s box, whether they realized it or not, to anyone they have had past controversies with that they have turned down by arbitrarily saying this is a ridgeline, this red line counts. They are now saying that these ridgelines don’t count, so they are changing the ordinance. They cannot do it that way in her opinion. Maybe they have to change the ordinance, but it should not be part of this package. Mr. Stendell said he tended to agree with her on the outcroppings and was something that maybe in the future they may want to take a look at to the ordinance, although it poses a very difficult problem as far as identification and not one he thought they could tackle at a staff level. However, he didn’t think the application errs or even destroys one existing outcropping. Where the error was made was in putting lines between them. He pulled up a document that showed the outcroppings as identified by the project engineer and some of the lines that staff made in between them. Commissioner Schmidt asked for clarification if that was the developer’s project engineer or the City’s engineer. Mr. Stendell said it was the developer’s project engineer. They could see in the topo the natural flat areas were where they located the pads, which don’t actually interfere with any of the significant or any of the outcroppings on the property. It wasn’t the outcroppings. They could go back and amend the City’s Hillside Residential Zone and identify dots on the Hillside Planned Residential zone to identify outcroppings. As presented, the six lots wouldn’t even interfere with those. The error was in putting lines between them and playing connect the dots. Chairperson Tanner said creating a ridge. Commissioner Schmidt noted that one of the ridgelines in the ordinance as redlined crosses the road. Mr. Stendell said yes. Commissioner Schmidt said it didn’t show as outcroppings on the map and asked if it was a ridgeline with a road cut through it. Mr. Stendell said no, there were several of these outcroppings with lines drawn through them as staff presented it. They were now stating that the main ridge runs in a north- south direction as proposed in new exhibit. That was apparent when going onto the site, that the main ridge was as identified in blue. Commissioner DeLuna stated that on Sunday she hiked to every flag that was there. Commissioner Schmidt indicated she saw her. Commissioner 10 MINUTES PALM DESERT PLANNING COMMISSION DECEMBER 15, 2009 DeLuna said that was another question she had way down the line about the actual location of the pads. There was no way they were going to get a 10,000 square foot pad without obliterating some of those outcroppings, period. So if they don’t destroy ridgelines, why can they then destroy outcroppings? Mr. Stendell said that as proposed in the engineering, they weren’t destroying any of those outcroppings and he also hiked the site. He used an exhibit to show the property and the pads that the developer and engineer proposed. Disturbance in the hillside was one thing; he understood there would be grading of the road that it would be cut in. The developer has done a careful job of locating these pads in the most sensible areas that are possible. Could they be less of an impact? Sure. Commissioner DeLuna appreciated all the work he has gone to. She just knew having climbed over most of them to get to the different sites there was no way to put a 10,000 square foot pad in without wiping some of them out. And questions she had down the line included about how much has to be moved, what’s going to happen, and they were nowhere near that level of question yet. She was still concerned about how they define what they’re moving and how they define what they can destroy and what they can’t. To her, if a ridgeline is sacred, why isn’t an outcropping. That’s why she asked if it was a legal definition, a geological definition, an engineering definition, a staff definition? She didn’t see where for purposes of this discussion…it’s a distinction without a difference. Mr. Bagato said they don’t want to disturb the outcroppings. The issue becomes connecting two outcroppings and then drawing a line and then saying that line is a ridge. That’s where the error is made. They weren’t advocating destroying outcroppings or building on a ridge. The error was made by just drawing a line connecting two points and saying that’s a ridge. That’s where the error was made. Commissioner DeLuna said she understood that and that’s why she was suggesting that they bifurcate those two issues, because whether or not they are destroying a ridge may not have anything to do with this particular development, or it might not have anything to do with Lot 4, but it might with Lot 6. With Commissioner Schmidt, she agreed that they were talking about two separate issues and the scope was far too broad to try to tie into any one development. Commissioner Limont said she had a list of questions as well and it seemed that this is a much bigger subject and a larger issue for them to come to a conclusion this evening. She suggested that they continue this and ask for a study session so that they can become more familiar. She agreed with her fellow commissioners that this is a really difficult subject and not every ridgeline is a hogs back, which is a trail she used to hike, but there aren’t those definitions and Commissioner Schmidt is right. Is it the size of this table, the size of this room? There wasn’t a definition. She asked that they continue it. Commissioner DeLuna strongly agreed. 11 MINUTES PALM DESERT PLANNING COMMISSION DECEMBER 15, 2009 Commissioner Schmidt asked if they could take a little time here this evening, everyone is here, and ask a few of those questions short of a study session. Commissioner Limont agreed and said staff could come back and get those answered. Commissioner Schmidt said they could take half an hour and ask staff questions. Mr Bagato noted that it is a public hearing and needed to be opened before they continue the public hearing. Chairperson Tanner requested clarification that they needed to open the public hearing to get further discussion on these items. Mr. Bagato said that they could continue to ask staff questions and then typically they open the public hearing and continue it with comments. Commissioner Schmidt said she had some questions for staff. Chairperson Tanner said he would open it and then continue it. Mr. Bagato said when the public hearing is opened, they typically ask the applicant to come up and give any additional information, and then the public. Mr. Stendell said that if they could identify as many questions looming out as possible, staff could address anything that needed to be addressed. Commissioner DeLuna asked how much of the hillside terrain would need to be altered, moved or removed. How much grading would they do; how many rocks would they move? What was going to happen to that? Were they looking at a million tons, half a million tons? Were they going to plant it right next to it so they were going to leave no boulders there and fill crevasses in, or what was the plan? Mr. Stendell said there is a net 4,500 cubic yards of import per the tentative tract map. They could ask some of the more technical staff to be on hand so that they can answer some of those questions more in depth. It looked like there were 7,500 cubic yards of cut, 12,000 total yards of fill, leaving a net result of 4,500 cubic yards of import. Chairperson Tanner asked if six lots were proposed. Mr. Stendell said yes. Commissioner Schmidt indicated that on Lots 2 and 3 there are two distinct pad areas defined and asked why. Mr. Stendell explained that it is very common in hillside development to find split level pads. It is a technique that can actually help the design of a hillside home. They can build the home into the mountainside. Staff has done an extensive amount of research in the Coachella Valley on hillside development. Commissioner Schmidt said that basically it is a bi-level. Mr. Stendell said they could turn out to be bi-level, but that wasn’t necessarily the end result. They were required to maintain a height from the approved pad height, so it wasn’t as if they could take the outer edge of the lower edge and go up to the approved height at the higher level and make a big box. They have to maintain height levels based on the approved pad height, so 12 MINUTES PALM DESERT PLANNING COMMISSION DECEMBER 15, 2009 it allows the stair-stepping and a form of a building that could blend into the hillside better. It was also very popular to construct the home on an upper pad or a lower pad and have the outdoor amenities such as pools and barbecue areas on the lower pads. With the overall height restriction for Lot 3, Commissioner Schmidt asked if it applied to the upper pad or the lower pad. Mr. Stendell said both. If the approved height was 20 feet, they could only go 20 above the pad height. He was seeing a pad height of 759, so they could go up 20 feet on that one, and on the top pad, they were again restricted to 20 feet above that pad height. That wouldn’t allow them to create a very large block in a two- story home. Commissioner Schmidt asked if it was fair to say that in a one-level pad, the overall profile of the house would be lower. Mr. Stendell said it could be, but it depended on the view, where they were looking, where they’re standing, but sure, they were dealing with a one level pad. Commissioner Limont asked if there was a provision in the development agreement that allows Stone Eagle to annex additional land and use their left over lots. Mr. Stendell said no. That was why there was a development agreement amendment and the proposed amendment prepares all the mechanics for that to happen. He confirmed there was nothing in the original development agreement. Commissioner DeLuna asked if there was an answer to Commissioner Schmidt’s question about the property ownership. Mr. Stendell said the owner was Stone Eagle 6.5 LLC. He would let the applicant address the ownership, but his understanding was that the developer owns it. Regarding the one dwelling unit per five acres on a stand-alone project of this size, the 7.7 acres could only then have one dwelling unit. They have other people come before the Planning Commission asking to develop their one lot and they have not given it. In order now to give six units on the 7.7 acres, she would need a compelling reason to make an exception. She understood giving lots for development density in other areas was a compensating balance, but those are hillsides and once they are built on they are built on forever. Mr. Stendell said that in general, no one has been more critical of this application then him. He has lived the other applications and understands the implications to property owners within the hillside. He approached this case extremely sensitively and at times thought there would be no potential way to get this to work for those very reasons. However, in this case with the reduced density, they do feel they are in a position where they could present something that could be approvable and essentially six units is costing them nine. It was also assisting the City with a bike path. Commissioner DeLuna said the bike path they could take out because they could have that independently of 13 MINUTES PALM DESERT PLANNING COMMISSION DECEMBER 15, 2009 this most likely. It’s a very nice thing for the developer to be willing to do, but she didn’t think one thing necessarily hung on the other. Chairperson Tanner indicated that the way it is presented it does. Mr. Stendell said it would come at a cost to the City. Commissioner Limont noted that it could be taken out. Chairperson Tanner agreed. Commissioner Limont pointed out it is CVWD’s easement. Chairperson Tanner said that at this point, it is a developer requirement to put in the bike path. Commissioner DeLuna thought it was worded that he would participate. Mr. Stendell confirmed it was on his dime to complete it. Commissioner DeLuna reiterated that they didn’t know the cost, but he would bond around that. Mr. Stendell concurred. He assumed that Mr. Lennon had done his own due diligence as to the cost. The previous project engineer knew what it would cost. Mr. Stendell wasn’t a project engineer and didn’t presume to know the developer’s cost. Commissioner DeLuna noted that there are bigger issues. Commissioner Schmidt noted that there are 46 actually constructed homes there. Mr. Stendell didn’t know how many had been constructed, but there were 46 graded lots at this time. Commissioner Schmidt counted 22 vacant pad sites including seven or eight right along where the extension of that roadway would go. She also noted that they’ve had a complaint from one of the existing property owners. She asked if Mr. Stendell knew the location of 48387 Old Stone Trail. Mr. Stendell pointed out the general location of it. He explained that there are several homes that face onto Old Stone Trail and it could be one of the developed units. Commissioner Schmidt said she would appreciate knowing that somewhere along the line. Mr. Stendell said there are three existing homes on Old Stone Trail and he would make sure which actual unit the complaint came from. For the record, he said the email that was transmitted to the Commission as correspondence on that discussed the increased traffic flow as a result of the development of future lots. As presented with the reduction in density and in talking with the City’s Engineers, there is no increased volume issue with Old Stone Trail. Six additional lots wouldn’t create traffic that would hinder or be a negative impact to Old Stone Trail. But he would find out which one it is. Commissioner Schmidt asked in Mr. Stendell’s overall density assessment, moving from 11 to 13.6, if done, would represent 710 plus acres instead of 703. The golf course, the proposed club house, the existing pro shop, the parking lots, roads, open areas, entrance, guardhouse, etc., are they not deducted from the gross buildable area? Mr. Stendell said that typically when they look at a density standard, they look at the gross project. He did extract the golf course area from his original analysis. It got more complex as he extracted different things. If they are just talking about the base of the mountain before getting up to 14 MINUTES PALM DESERT PLANNING COMMISSION DECEMBER 15, 2009 the golf course, they are talking about 63 acres. So essentially they start coming to the same analysis with the reduction. It may not come out to 13.6, but they were still going down in a reduction. He could produce a couple of different scenarios. Commissioner Schmidt agreed with his premise, but if they were going on a public record with a public hearing, the figures should be correct and if those should be backed out and then come to some sort of net buildable allowance, that’s what should be in the record. Mr. Stendell said he would come up with several different ways of analysis. What they see in the staff report is consistent with the way staff reviews density in projects. Commissioner Limont asked about the secondary and emergency access. If that’s provided, she asked staff how they make certain it was only for Stone Eagle and not accessible by anyone else for any other reason. Mr. Stendell said it is in place right now. Stone Eagle has its main access off Highway 74 via the bridge that they constructed over the Palm Valley Storm Channel. Secondary access for fire access uses the same secondary access that Stone Eagle uses now coming down Calle de los Campesinos, which goes over a different bridge down the road. So it wouldn’t change that and wouldn’t open the gate. Chairperson Tanner asked about building pad area maximum. Under the Hillside Planned Residential zone it is 10,000 square feet. He asked if they would be increasing the pad sizes to 13,000 square feet. Mr. Stendell said there was no increase proposed to the HPR zone; this proposal as presented uses standards that were approved in the original development agreement for Stone Eagle. Hillside Planned Residential zone standards can be amended and are typically as approved by the City Council, so in 2002, that is what they approved. They approved more for Stone Eagle in the original development agreement. The Hillside zone in 2002 was very different then the Hillside zone that exists now. There wasn’t a limitation on a 10,000 square foot pad, there wasn’t a ridgeline exhibit, and there wasn’t a dwelling unit size requirement. Those all came later. Essentially, by the way the developer crafted this application, it applies itself to standards that were created in 2002 and not by the 2007 Hillside Planned Residential zone. That’s why he said there were two different ways to look at this application. It becomes very critical which way they want to look at it. Commissioner DeLuna said she had another question/issue and it dovetailed back to what she was asking earlier about the definition of a ridgeline and an outcropping. For three of these lots that are up higher, depending on the definition of a ridgeline or outcropping, they might need to consider the City ordinance depending how they define ridgeline. So she thought that was something they would need to further explore and 15 MINUTES PALM DESERT PLANNING COMMISSION DECEMBER 15, 2009 she agreed with Commissioner Limont, either a study session or a fact finding mission where two Planning Commissioners at a time could go to the site and meet with the developer specifically about issues, or a study session. She didn’t have a preference, but they needed more information. She wasn’t comfortable making a decision at this point. Commissioner Limont asked historically if we’ve in the past, and if he had an example of amending a development agreement to annex land similar to what they were being asked to do this evening. If so, if he does have a previous example, that would be great if he would bring it. Mr. Stendell noted our legal counsel has been with us the entire step of the way and they would have alerted us to any potential liabilities in the way it is crafted. He knew it could be done. Commissioner Limont said that wasn’t the issue. Have we done this in the past? They are looking to amend a development agreement. Mr. Stendell indicated several development agreements have been amended. Whether or not any dealt with incorporating new land, he would find out. Chairperson Tanner asked if there were any other questions for staff. There was no response. Ms. Aylaian added that there was some discussion about whether it was appropriate to handle the Zoning Ordinance Amendment as a separate issue from the project consideration. Typically they are handled together. They have many cases on specific cases that required amendment to the Zoning Ordinance if they are changing from a PR-5 to a PR-7. They usually lump them all together and handle them together because it doesn’t really make sense to change the Zoning Ordinance for a project or for an unknown project or for a project that may or may not ever come to pass because then they have something standing out there that has been changed for no need. So they usually lump them in together, but technically these are separate and could be handled separately if the Commission has a strong opinion on how it should be handled. Chairperson Tanner asked if they needed to address the fact that this particular area is ridgeline area. It’s in the ridgeline area as opposed now to potentially going into a non-ridgeline area. Did they need to address that prior to the annexation? Ms. Aylaian said they need to address it at least simultaneously with the proposed project. They couldn’t approve the proposed project without changing the Zoning Ordinance, because otherwise they would have approved building on what technically the ordinance shows to be ridgeline and there is a prohibition against that and there isn’t an exceptions process for that. They needed to at least, if not do one before the other, at least do them simultaneously. Chairperson Tanner said it would be specifically on the 7.7 acres. Commissioner Campbell noted that Mr. Stendell stated earlier that they needed to approve the Zoning Ordinance Amendment with this project to begin with. Ms. Aylaian agreed. Mr. Stendell noted that they 16 MINUTES PALM DESERT PLANNING COMMISSION DECEMBER 15, 2009 could have had a public hearing A and B, and A could have been the Zoning Ordinance Amendment and B could have been the project. The way they chose to marry them was just the way typically of staff, but they could separate them if there was a strong desire to do so. Commissioner DeLuna asked if it was a matter of convenience that they were proposing to do the two together, because what she sees here different from what may more typically happen when they have this situation is that with hillside development, they’ve had some real specific issues come before them previously that may come back based on the definitions they come up with, so if they had a separate situation where they dealt with only the definition of a ridgeline and whether or not there was an error made or not made separate and apart from hearing it in connection with this project, she thought in this instance it might be more helpful. She thought on a case by case basis this was a little different from what normally happens. Commissioner Schmidt said in other zones they are predictable. They have a commercial pad on the valley floor. They are now talking about hillsides that are hundreds of thousands of years old. She lives on an alluvial fan and those outcroppings, as they dismiss them, were put there she didn’t know how many hundreds of thousands of years ago and to mess around with them just isn’t in her psyche. They have to protect that up there. She wished it was someone else besides Ted Lennon’s group; it would be easier because tromping around up in there she realized what a beautiful development that is. He takes great care. In trying to walk around, they can’t overlook the seriousness of what they’re doing and she liked slowing down. This has been in the works for three years, yet their packet came last Friday for them to make a decision tonight and she just couldn’t. She would have to vote it down if they were forced to vote as presented. Commissioner Limont asked if it was appropriate to move for a continuance. Commissioner Schmidt asked if they wanted to open the public hearing and hear from the applicant and then continue it. Chairperson Tanner asked if there was any more discussion for staff. There wasn’t. Mr. Stendell said he had his marching orders and would take a crack at it. Commissioner Schmidt said she would do up her questions and get them to him, those which they haven’t asked. Chairperson Tanner opened the public hearing and asked the applicant to address the Commission. MR. TED LENNON, President of Stone Eagle Development, 47870 Silver Spur Trail in Silver Spur Ranch, said he has been involved in this project for a long time and has been in this city for a long time. They approached this application in the spirit of the development 17 MINUTES PALM DESERT PLANNING COMMISSION DECEMBER 15, 2009 agreement as it was originally conceived. The development agreement in his mind, and he’s been doing this with the cities for some time, is an agreement that allows a little bit of latitude for a project when they are designing something, not to incorporate every little detail; the City has to take care of a lot of different projects. They tried to create a really terrific low density project. If they go up to the golf course, he almost thought they didn’t destroy any rock outcroppings, they kept them and didn’t reconfigure them. Where they have changed things, they re-permeated the stone, recreated the area. If they look at the retaining walls they created in the lot subdivisions, they were all with big natural rock. When this site was first put on, the first thing they did was they had a topo map done and identified all the rock outcroppings and thought in this plan they stayed away from probably 80% of the outcroppings which stayed, and then they would recreate other outcroppings is the history of how they’ve done the project. To answer one of the questions, they’ve owned this property for a long time. If they looked at the original CC&R’s of the project, it already has this property identified as being able to be brought into the project. So the intent’s been there a long time. They submitted a long time ago. When the City came up with its ridgeline thing, which he had no problem with, he was curious and came to the City to see how it affected their properties. He was glad to see that they weren’t even included and they were part of their development and weren’t included in the original ridgelines. It was coming before City Council two or three nights later, so they left the City believing they weren’t part of it. Somehow the consultants came in and drew more lines and got approved by the City Council. He didn’t find out until four or five months later and ever since then they have been complaining and asking people to go out. Some of the ridgelines are actually in a canyon, a ravine. So they have been working on this and trying to discuss and having engineering work done, showing lines, going out on site visits with staff and people to come to this stage. It wasn’t like they knew about this and now they were trying to fight it. From day one, they owned the land a long time before this was enacted and they came in to see the ridgeline plan and they had no lines on their property, so they had no concerns about it. Regarding outcroppings, Mr. Lennon said he would be happy to show them that if it was going to take longer and more study sessions to get them out to the site. They will have the engineers maybe stake out some of the outcroppings of what gets saved and they could kind of see how it works. They tried to minimize any kind 18 MINUTES PALM DESERT PLANNING COMMISSION DECEMBER 15, 2009 of import of earth to the site and they’ve worked with three different engineers and changed the plan five different times. One of the local guys who really does a great job at Bighorn siting the lots looked at it for them. He hired Kristi Hanson to look at the lots to come up with the best plan to do this. So they really spent a lot of time and effort. If they look at their project, they have saved rock outcroppings. He was confused how rock outcroppings have gotten into the conversation, because they are in fact saving those. He thought the only issue was how an error was made in the beginning where they identified outcroppings and drew a line between them to create a ridgeline. They own the land. They are trying to do the project. Stone Eagle is a very difficult financial project because there are so few residences. They talked about the density of the project. Somewhere in the neighborhood of 700 to 1,000 acres of additional land they had to acquire as mitigation for this property, so they were talking about 1,700 or 1,800 acres of land that was set aside. The golf course sits on a section of land 640 acres and it has 88 acres of turf on it. They set aside all that space as conservation land up above so it would never be developed and they have this site. If he was up there on the side of the hill, as they knew, as they look up above it there are homes up on the hill that overlook this project that they can see from everywhere. They’ve tried to be good neighbors with Sommerset. He met with the former President and asked him to go to the Board with the sets of plans and he did and wished them support. He maybe should have got some letters from him. They are the major neighbor. Mr. Lennon said this project isn’t seen from the city of Palm Desert in general; they don’t see this project from Bighorn or from Highway 74, and they tried to be sensitive to that. When they do look at their buildings against the mountainside, they really blend in with the color schemes they’ve done. He thought they’ve done a good job. No one likes to set precedents; everyone is afraid of precedents, but he thought their jobs as Planning Commissioners was to do the right thing for the city and for the rest of the developers. He looked forward to working more with them, and thanked them for their deliberation. He thought it was probably the most impressive staff presentation he’s ever had for any of his projects and he’s had a lot bigger projects, but for the detail and various issues that were covered, they could be proud of their staff. They did a really wonderful job. He asked for any questions. Commissioner Limont noted that Mr. Lennon said he has owned the land for a long time and asked why it wasn’t part of the original agreement. Was there a reason? 19 MINUTES PALM DESERT PLANNING COMMISSION DECEMBER 15, 2009 Mr. Lennon thought originally someone came in and this was approved for subdivision in the past. He was trying to remember back, because he asked that question. At one time they were told they couldn’t have the infrastructure for it to handle this project and then two years later after the whole thing had been blanked, he found out that was a total mistake, that was wrong engineering information he had. And that was absolutely the only reason. Chairperson Tanner reiterated that Mr. Lennon owned the land, but now were annexing into the Stone Eagle project. Mr. Lennon said annexing into the Homeowners Association. They created the CC&R’s which came through the City in the beginning. The CC&R’s identify this land as approved for being brought to the project. So they knew it could happen. The Environmental Impact Report handles this kind of density and that’s what they were trying to do. When they do a project like this, they knew going in that it was kind of a labor of love and they are never going to make a lot of money on a project like this because there are so few residential units and all the golf course communities need that. And as he mentioned, he had said he would give up 2:1 on the density, but they would really like to keep three or four units for if they could do anything right around the clubhouse to add to the clubhouse. It’s a very common practice and great golf clubs have some residential units as part of the clubhouse. They would meet all of their requirements and density coverage, but they would like to have that ability. Chairperson Tanner asked if these lots would be held for sale for spec or if they would be developed by Mr. Lennon. Mr. Lennon said the intention now is that they would be for sale. They have guidelines and have been through the Architectural Committee, showed them the plans, and they’ve approved everything and they spent a great deal of time with them. Commissioner DeLuna reiterated that they would be sold as custom home sites, he wouldn’t be building individual homes that would be custom for sale. He was just selling lots. Mr. Lennon said they might, but were not obligated to do that. The intent was to sell to existing members with their architectural guidelines. 20 MINUTES PALM DESERT PLANNING COMMISSION DECEMBER 15, 2009 Chairperson Tanner said they would come before them. Commissioner DeLuna said as individual residences. Mr. Lennon said yes. Commissioner Campbell said that also on those individual residences, they wouldn’t exceed the 4,000 square feet on those lots. She asked if that was correct. Mr. Lennon said they would meet their existing requirements. Mr. Stendell explained that the existing development agreement does not preclude the 4,000 square foot maximum dwelling unit. That was something he wanted to add, as he’s done a little bit of analysis of what they’ve seen in other developments like Bighorn and The Canyons side with some of the ratios of house size to lot size and there could be an instance where these lots could accommodate a house larger than 4,000 square feet and the development agreement they are attempting to go underneath doesn’t preclude that. So they could in essence see a house out there that would be over 4,000 square feet. Chairperson Tanner said it would come before the Planning Commission. Mr. Stendell said if approved, no, each home would come back to the Architectural Review Commission, not Planning Commission. It gives the jurisdiction of the original development agreement which does not hold it to 4,000 square feet. Mr. Lennon said when the original pads when they are cut, they have to be re-naturalized to a percentage. The pad gets created, then it gets re-naturalized with rock and boulders, when the house is completed as well. Commissioner Schmidt said he mentioned something very interesting to her. This property was vaguely referenced in the original agreements, the DA’s, and the CC&R’s and so forth that are regulating the rest of the project, allowing them to exceed a 4,000 square foot home. And these then now being incorporated, or annexed, into the present agreement, would then be allowed to have that excessive square footage over the ordinance by the nature of the development agreement with the City in 2002 sometime. Mr. Lennon said that was correct. Commissioner DeLuna noticed that Amendment No. 2 allows up to 19 homes to exceed the height limit to 25 feet. She presumed that none of 21 MINUTES PALM DESERT PLANNING COMMISSION DECEMBER 15, 2009 these six homes are any of those 19. There wouldn’t be any 25-foot tall homes. Mr. Lennon said what they did when that happened, the ordinance was increased by a couple of feet and the building plans were done and completed, and so it was allowed. They went out and identified where it was against the mountains and it wouldn’t have any effect. He confirmed it would not affect these. Commissioner DeLuna asked how high these homes would be. Mr. Lennon said these have a max of 20 feet. He thought only a percentage could be at that height, so it’s the original approval they’ve had from day one. Chairperson Tanner asked for any additional questions. Commissioner Schmidt said she would save them (for study session). Chairperson Tanner asked if they needed a motion. Mr. Bagato advised that the public should be given an opportunity to speak to the public hearing. Ms. Aylaian said they might want to ask if anyone in the audience wished to speak in favor of or against the project. There might be someone who came here this evening to speak who is not able to make it to the next meeting, so this gives them an opportunity to speak now. Chairperson Tanner asked if anyone wished to speak in FAVOR of or in OPPOSITION to the public hearing. There was no one. Chairperson Tanner asked for a motion to continue the public hearing. A potential study session, field surveys, and public hearing date was discussed. Action: It was moved by Commissioner DeLuna, seconded by Commissioner Schmidt, continuing the public hearing to January 19, 2010, with direction to staff to schedule field surveys and a study session prior to the January 19, 2010, public hearing. Motion carried 5-0. IX. MISCELLANEOUS A. Discussion of potential regulations to tattoo establishments in the city of Palm Desert. Assistant Planner Kevin Swartz explained that at the Planning Commission meeting on November 12, 2009, there were concerns 22 MINUTES PALM DESERT PLANNING COMMISSION DECEMBER 15, 2009 expressed about the number, location and concentration of tattoo establishments on Highway 111 in Palm Desert. Staff was asked to research potential regulations on the location of tattoo establishments. Staff identified six tattoo establishments on Highway 111 and one located along Joni Drive within the city limits. Staff proposed four possible approaches for regulation. He said that Planning Commission might choose to recommend one of staff’s proposals to the City Council, or an alternative recommendation. If the intent of the Planning Commission is to eliminate tattoo establishments along the city’s main commercial corridors, Highway 111 and El Paseo, then staff recommended regulation number one. Staff also identified how some of the neighboring cities regulate tattoo establishments and outlined the City Council’s discussions back in December of 1997 and January 1998. He asked for any questions. Commissioner DeLuna asked for clarification. Mr. Swartz said there were a total of seven. Mr. Swartz said there are six on Highway 111 and one on Joni Drive. On the map in front of them, there was one shown on Cook Street, but that was actually the Hovley Business Park. Chairperson Tanner asked if there was one planned there. Mr. Swartz replied no. Chairperson Tanner invited public comments. MR. TROY LAWRENCE of Mad Hatter Tattoo #2 located at 73640 Highway 111 in Palm Desert, stated that he is the owner of the tattoo establishment and has been for the last 14 years. His establishment has been located at that address for the last 14 years. He wasn’t here to refute the regulation of tattoo establishments, however, if possible to educate and enforce the regulations within the city. But he did have a few arguments about possibly trying to locate them off of Highway 111. He was sure they have looked into a couple of definitions, one being 653 of the California Penal Code. As used in this section, to tattoo means to insert pigment on the surface of the skin of a human being, or an animal if they choose to, so as to produce an indelible mark or figure visible through the skin. That would also take them to the Health and Safety Code of 119300 permanent cosmetics, also known as permanent makeup. Cosmetic technique which employs tattoos which is permanent pigmentation of the dermas as a means of producing designs that resemble makeup, also known as permanent makeup. Mr. Lawrence said his statements would be that he has been open for 14 years in the city. He’d like to think of himself as decent within the city. He pays his taxes, paid for his city permit, his signs and his 23 MINUTES PALM DESERT PLANNING COMMISSION DECEMBER 15, 2009 building are within code, and he makes sure of that, and so does the City; he’s been warned before. To let them know, for his particular business, they’ve had no calls for service for public safety except for one because they had someone stealing. That’s their legal right to call the local law enforcement to have them come out and apprehend the suspect or person in question. Every year he provides new equipment for the inside of the shop. He repaints the inside of the shop and that’s money he doesn’t have to spend, but he does that and he goes to the local Ace Hardware in Palm Desert to buy these products. His storefront, and he apologized he didn’t have any photographs of the storefront, but if they get to meet again he can prepare that, it doesn’t appear to be an eyesore since the storefront is up to code. As far as tattoos and body piercings go, at no time has this establishment or industry caused alcohol abuse, DUI crashes or public intoxication. As they all know, Highway 111 and El Paseo have a lot of these establishments strewn throughout the city. At no time has his establishment or the tattoo industry in Palm Desert caused any of those problems. They haven’t caused anyone to die in a crash because of alcohol or to be involved in a fight because of alcohol. It’s just simply tattooing. Mr. Lawrence said he was here to offer his services to the City and to the Commission to help the regulations, because he himself and one of his employees were concerned with the fact that a couple opened up fairly close to him and he was concerned and hoped the City was going to have some sort of regulation for this type of businesses cropping up here and there. As a reminder, he’s been there 14 years and hasn’t been a problem. Nobody at his establishment has been a problem, and he just hoped that it wasn’t because people didn’t like tattoos. He happens to be a fan of them and has quite a few, although you can’t tell. The tattoo industry has tattooed retired law enforcement, attorneys, and judges, all over the United States. They’ve tattooed rich people and people who struggle to pay for the tattoo and they give them a break sometimes. To run an establishment such as a tattoo industry, he pays for yellow pages which isn’t cheap, he pays for the electric bill, the phone service, the lease and they frequent the 7-11 quite a bit to buy sodas for the people who come in and get tattooed or are going to pass out from getting a piercing or a tattoo. So they keep another establishment up and running. He knew they’ve all visited 7-11 and knew some people don’t drink, but they still have to drive by the 24 MINUTES PALM DESERT PLANNING COMMISSION DECEMBER 15, 2009 bars and all the restaurants strewn throughout the city. They try to maintain privacy at the shop and they have some people sit out front once in a while and hang out, but they don’t cause any problems. In many instances, his people know if they see a problem to call the local law enforcement and try not to handle it themselves and let them do the job. Mr. Lawrence reiterated that he’s been there for 14 years. Yes, there are some shops that just showed up. He would be more than happy for them to be relocated and make it a lot easier for him. However, it was just like another clothing store that opens up down the street and the competition continues. They do what they can and provide a service for the rich and the poor, professionals, and that’s what they try to do. He hoped they would like to contact him through the business to offer any professional help as far as any kind of regulations. He knew they were through the County; they are registered through the County Health Department. They are inspected every year and they have certificates, and his body piercer has also been to classes and he has certificates and documentation to prove that he just doesn’t go out and poke holes into people; he’s very professional. His appearance may not be professional to some people’s standards, however, that’s just part of the industry and a little bit of a commitment issue, so that’s just how certain things go. Again, he hoped they met again on advisory issues and he’d like to help them out as much as possible. He asked for any questions. Commissioner Campbell asked if his employees require a license like in cosmetology or any other person who tattoos eyebrows or eyeliner, they require a license. Are his employees required to have a license? Mr. Lawrence said they are required to be registered through the County Health Department. They don’t have an actual license where they go to a school; it’s an apprenticeship. It’s almost like someone who wants to be a carpenter. They get with somebody who is willing to learn and they go through the motions and are taught how to tattoo. Commissioner Campbell said they are licensed. Mr. Lawrence said yes. Commissioner Schmidt noted that Mr. Lawrence offered some suggestions as to regulations for these establishments. She asked if he could set that to writing and get it to staff so that they could look at it. 25 MINUTES PALM DESERT PLANNING COMMISSION DECEMBER 15, 2009 Mr. Lawrence said absolutely; he would love to set a standard because from what they understand, Riverside County Health Department is very new on these issues since tattoos in this county, (il)legal tattoo shops have been cropping up. And he knew that they have a lot of people tattooing out of their houses right now. He couldn’t verify where they are at, but they run into some people who want to get something fixed and they ask them and they say someone tattooed out of their garage or house. That’s one thing they like to avoid as well. They say look, you don’t have to get a tattoo through us, but if you’re going to go somewhere, check the sterilization process and they would show anybody what they do. They show the Health Department what they do to keep it sterile and to provide any type of hepatitis C or blood pathogen issues, which all his guys are educated on those issues. They’ve also taken a little bit of first because a lot of people pass out and they have to worry about that kind of thing. His guys know that it is a strict policy to check ID’s. If at any time they have someone who is trying to use someone else’s identification, to call him or call local law enforcement. That is a misdemeanor and they will take it and hold onto it. Most of the time those people leave, but they like to document it. Commissioner Schmidt said it would be helpful, certainly to her, if he wouldn’t mind. Mr. Lawrence said he would love to do that. Chairperson Tanner thanked Mr. Lawrence for his patience in waiting for this item. Mr. Lawrence thanked them and said he would be talking to them soon. Commissioner DeLuna said her concern continues to be, even increased over when she first asked staff to do some research, she didn’t realize there were six on Highway 111. She couldn’t tell here, but it’s about six blocks, so that’s one on every block. As she has driven by, she sees people loitering outside; they are open until 2:00 a.m., so she does have some ongoing concerns about public safety, about the image we present to people; that is our commercial corridor, El Paseo and Highway 111. She thought they tried to hold themselves to a higher standard just because of the type of city that we are we go to great pains to establish high standards. Neither Indian Wells nor Rancho Mirage deals with them 26 MINUTES PALM DESERT PLANNING COMMISSION DECEMBER 15, 2009 or allows them, so they all seem to gravitate toward Palm Desert. If we thought we only have five and now we have six, and mirroring the speaker’s sentiments, we have a concentration of them and it can be a land use issue. They could be perceived as adult entertainment and regulated. They could be required to have a conditional use permit; there were all kinds of things. She thought the next step they had to do was ask staff to go to City Council to review the current zoning ordinances pertaining to the tattoo establishments. She asked if that was correct. Mr. Bagato said it depended on their direction. Staff outlined four possible ways of dealing with them. Mr. Lawrence suggested he could submit in writing and Mr. Bagato didn’t know if they wanted to continue this issue to see what his recommendation is and then come back with that based on Commissioner Schmidt’s comments. Commissioner Limont said that staff recommended that if they are concerned with the number of tattoo parlors, that they study their regulation. That was their recommendation. Mr. Swartz said that was correct. Commissioner Limont asked that staff take regulation one and with the input from Mr. Lawrence. Commissioner Schmidt asked if she was referring to item number one in the staff report. Commissioner Limont said yes. At the very end it says that if their intent is to eliminate tattoo establishments along the city’s main commercial corridors, Highway 111 and El Paseo, then staff is recommending regulation number one. So maybe if they were to proceed with this to get moving forward to take regulation one, she thought they needed to look at what an owner of 14 years had to say. His input was excellent. But come back with information or a proposal or recommendation for taking regulation one and putting it into the ordinance. Her only concern was what happened to the existing ones. This is someone who has been in business for 14 years. Commissioner Campbell said you can’t just take their license away, it would be just like having on El Paseo the clothing stores and art galleries. Commissioner DeLuna thought those were a little different. Chairperson Tanner also thought they had a situation where he brought up how many bars we have along Highway 111. Are we going to then decide that is something we want to eliminate because it’s our commercial corridor? Commissioner DeLuna indicated this is a public safety issue; they are breaking skin. Commissioner Campbell said they are licensed. There is no prostitution there. Commissioner Limont thought it was more perception than anything. Chairperson Tanner thought she nailed it on the head. Commissioner Campbell asked about eyebrows or eyeliner or lips. That is the same thing. Commissioner DeLuna said those places aren’t strictly for that purpose, they are usually part of salons that offer other services besides just tattoos and body piercings. 27 MINUTES PALM DESERT PLANNING COMMISSION DECEMBER 15, 2009 In reading all of the material, Commissioner Schmidt thought instead of only using number one, they should take all of these recommendations and incorporate them into an ordinance that has some teeth in it. She agreed, she didn’t know about eliminating existing establishments or if they can do that, but they could certainly not allow any more. She didn’t know about existing, that would take a legal opinion to require a CUP in all zones, which then regulate them more strictly. Under two, it says Planning Commission may approve a tattoo establishment with conditions of approval placed on the business, or may deny an application if it believes the business was not located in an appropriate site. She said it was a wonderful staff report and she wanted to take it all and put it into an ordinance. It then talked about a proximity prohibition, which she thought was terribly important; keep it away from schools, keep it away from all the rest of it, children, care centers, parks, places of worship. It has some real merit to her. As a matter of fact, she would like to see if there are any marginal tattoo establishments existing that aren’t meeting muster, then they should take a look at getting rid of them. But at the moment she didn’t have any evidence that they aren’t all like Mr. Lawrence, doing a good job, if he is doing a good job. In the end they would have an ordinance that has some real teeth in it. Commissioner Campbell also mentioned hours of operation. Commissioner Schmidt agreed, that applies when it comes under a CUP, they put all those requirements in. Ms. Aylaian clarified that the four approaches listed in the staff report were mutually exclusive. It wasn’t something they could combine. One approach said they prohibit them in one area of town along the commercial core. They allow them everywhere else. Another approach says they allow them anywhere in town as long as they have a conditional use permit. Another approach says they allow them anywhere in town as long as there is a certain radius between one and another. So each one has a different approach and of them, there is at least one at a staff level they would recommend against. They thought it would be a little ill-advised and that was approach number two. She was getting a feel for what the Commission was looking for and that’s what they were trying to establish. What she was hearing is that primary concern is for our commercial core, for the image this projects of Palm Desert to people who are driving through. And if it is a prohibition in that area, they could certainly take that approach and allow it other places. Or if it is a limited number in that area and a radius around each of the businesses in that area that was an approach they could take. But they can’t combine all four without being riddled with conflicts. Mr. Bagato’s thought was that they needed to look at drafting an ordinance similar to the adult entertainment ordinance, but tattoo shops are not adult entertainment, that had already legally been defined in the late 1990’s by lumping them under the Palm Desert Health Code, but the issue was related to appropriate uses related to the 28 MINUTES PALM DESERT PLANNING COMMISSION DECEMBER 15, 2009 commercial core, and if they are going to talk about tattoo parlors, they also have one smoke shop that operates the same hours that can create the same problems if they have five or six more smoke shops. So maybe they should look at uses that they feel, if there are too many of them, are not compatible. Again, they were looking at restrictions for stand-alone massage establishments and they could look at them all together as one ordinance and in that ordinance they can create proximity distances, hours of operation, and then they are just a permitted use as long as they operate within those terms. If they operate outside of those terms, then they are in violation and their business license is revoked. A CUP isn’t advised because there is no land use authority they could place over them, but they could put hours of operation. For example, on adult entertainment, they say they cannot operate between 9:00 p.m. and 1:00 a.m., so if someone came in and wanted to open 24 hours, they couldn’t. It isn’t allowed. So they could look at something like that and he would talk to the City Attorney on how they would approach this for not just tattoos, but kind of regulate some other businesses in there since they were looking at massage anyway and also smoke shops if the point is trying to create, if our commercial core is important and key to our commercial core of the city and they have a concern that some of the businesses may create, then they should look at drafting something that addresses all those in one ordinance. They could also come back with any police reports or activities associated with any of these tattoo parlors. They kind of did this preliminarily and according to the initial studies, they didn’t have any reports associated with any of the tattoo establishments in the city. But they could get actual on file records, but from verbal calls to the lieutenant, we had none. Commissioner Schmidt asked about the condition of moratorium, was it in effect? Did they ever do it? Ms. Aylaian said there is no moratorium. Mr. Bagato said there is a moratorium on massage until August. But right now this is defined no different than a beauty salon, so if someone came into the City to request a permit for a tattoo establishment, they could not stop them because under the Health Code, they are defined the same as a beauty parlor and we allow beauty salons within commercial zones. Commissioner Schmidt said they were basically talking about stand-alone body piercing. She asked about body art. Was that the permanent makeup? Mr. Bagato didn’t know if there was a different definition; he would have to research all the terms associated with the art of tattooing. Commissioner Schmidt didn’t know much about tattooing, but had recently seen that they prefer to be called body art. Commissioner Campbell asked how many women have tattoos. Chairperson Tanner and Commissioner Schmidt said lots. Some people that perform the tattooing are amazing artists. Chairperson Tanner thought Commissioner DeLuna would like to get further clarification and maybe include Mr. Lawrence. He’s been here 29 MINUTES PALM DESERT PLANNING COMMISSION DECEMBER 15, 2009 14 years and apparently knows what he’s doing and is well respected in the industry. Let’s include him and let him create something for them. He agreed with Mr. Bagato and other Commissioners, he thought they could take parts of each of these suggestions and roll them all together. He didn’t know if they were going to be able to do anything about the existing, but certainly the new ones that are applying and create a standard that is going to not be objectionable to our commercial corridor. There are other things that people are objecting to in our commercial corridor and we aren’t closing them down. Commissioner Schmidt thought they needed a legal opinion on the existing establishments and their parameters with them and then they need a draft ordinance to encompass as much as possible that is of course legal in regulating. Chairperson Tanner asked if they could close an establishment down if they’re open, running and up to code. Acting City Attorney Jill Tremblay said there would be some problems with closing down an existing establishment. Commissioner DeLuna asked if they could grandfather those six in so that if any one of them closed down, the location would be eradicated. Commissioner Schmidt said that was the question she wanted to explore a little bit when they say CUP. A CUP continues even though the ownership might change; she asked if that was correct. Mr. Swartz concurred. Mr. Bagato clarified with new CUPs. But the current ones weren’t required to have CUPs, so we can’t make them go back and get a CUP. Commissioner DeLuna asked if they could be grandfathered so that if they go out of business they don’t get replaced. Mr. Bagato said if they don’t meet the terms of the new ordinance, yes. Unless they heard specific direction to prohibit them off of El Paseo or Highway 111, the new ordinance restrictions would have distance requirements. Given the fact that Highway 111 is probably only eight to nine blocks as it is, and six of them have tattoo parlors, he didn’t anticipate any new ones really being able to come in, even when some of the other ones close down because it is pretty well covered throughout the street. Commissioner Limont asked if they could put a temporary moratorium on them while the study is being completed on any new ones. Ms. Aylaian said it would be similar to what was done with massage establishments. City Council can establish a temporary moratorium and within 45-days they come back and have a public hearing to see if there is a need to continue the moratorium. Chairperson Tanner asked if they could actually do that, because we have a conditional use permit for a massage parlor, for the usage. This wasn’t similar to that; it was like a beauty parlor. They were able to put permanent makeup on and they fall under that category. They don’t fall under a tattoo parlor CUP, do they? Mr. Bagato said no, but if they are 30 MINUTES PALM DESERT PLANNING COMMISSION DECEMBER 15, 2009 looking at restrictions on them, they can still pass a moratorium on that specific use, because we are considering new standards, but without it being a moratorium on the agenda, he didn’t know what the procedure would be, if they would have to do it as an urgency item and have to first add it to the agenda. It wasn’t published and maybe the City Attorney could address that. Ms. Aylaian said staff would come back at the next meeting with some information on what they could do as far as a moratorium goes if that’s the way they would like to go. Commissioner Schmidt cautioned about including permanent makeup establishments. There were quite a number that have been in the city, not the least of which was in the J.W. Marriott Hotel, and the Esmeralda and maybe the Hyatt. Commissioner DeLuna noted that they were talking about stand alone establishments. Commissioner Schmidt agreed that there were a number of those as well. Commissioner Campbell thought that the people who do tattoos now could probably do a better job on eyebrows. Chairperson Tanner said they couldn’t paint permanent makeup and tattooing parlors with a different brush. Mr. Bagato explained that the Health Code defines them as the same. Staff has been working with the City Attorney to look at restrictions in other areas. Other areas have restricted them, not just locally, but in other cities throughout California, so there are other jurisdictions that have taken approaches to treating them differently, but the Health Code does not treat them differently. Until now, based on what happened in the late ‘90’s, we have not treated them differently because we were told not to. Commissioner Schmidt thought it would be interesting to know what is required to be a permanent makeup artist, what kind of credentials, licensing, etc. Chairperson Tanner asked if that was versus tattooing. Commissioner Schmidt said she would like to know that as well. Commissioner Campbell explained that was why she asked if they needed a cosmetology license. They are licensed with the Health Department. Commissioner Schmidt noted that he said they are registered and that was a big difference. He has a license and they are registered under it she assumed. She would also like to know that. She summed up that staff would do some work on this and then revisit it. Chairperson Tanner concurred. Mr. Bagato said staff could bring it back at the second meeting in January. Chairperson Tanner asked about Mr. Lawrence’s input. Commission discussed it being helpful taking Mr. Lawrence’s comments into consideration, but not basing the entire ordinance on his comments. Commissioner DeLuna asked for clarification regarding a temporary moratorium for stand-alone tattoo parlors in the El Paseo and Highway 111 corridor and asked if they could do that. Ms. Tremblay didn’t think so. Commissioner Campbell said no, because it wasn’t under a CUP. Ms. Aylaian asked if they would let staff get back to them on that. She didn’t 31 MINUTES PALM DESERT PLANNING COMMISSION DECEMBER 15, 2009 think so since they don’t issue separate licenses for them, but staff would get back to them. Chairperson Tanner asked for any additional discussion. There was none. Action: None. X. COMMITTEE MEETING UPDATES A. ART IN PUBLIC PLACES Commissioner Campbell said their next meeting was December 16, 2009. B. LANDSCAPE COMMITTEE Commissioner Limont indicated their next meeting would be in January. C. PARKS & RECREATION Chairperson Tanner explained they met a couple weeks ago with updates on everything and also discussed bike paths and a bike- friendly Palm Desert. It was noted that the City Council approved a contract for architectural design services for $980,000. D. PROJECT AREA 4 COMMITTEE Commissioner Schmidt said she didn’t attend. Ms. Aylaian said the only update they had was on the Palm Desert Country Club, which is now open again for business and the main golf course, the executive course, was expected to open in a couple of weeks. The Code Enforcement folks are continuing to monitor the condition of the course and the owners are trying to negotiate their business plan for bankruptcy procedures that are going through and hoping for a good season. XI. COMMENTS Principal Planner Tony Bagato reported that the meeting for January 5, 2010 was canceled. 32 MINUTES PALM DESERT PLANNING COMMISSION DECEMBER 15, 2009 Commissioner Schmidt stated that the preparation, study and diligence with which the Stone Eagle presentation was given tonight was just way over the top wonderful. She knew they had all worked very hard on it. She thanked staff. XII. ADJOURNMENT It was moved by Chairperson Tanner, seconded by Commissioner Schmidt, adjourning the meeting by minute motion. The meeting was adjourned at 8:25 p.m. __________________________ LAURI AYLAIAN, Secretary ATTEST: _____________________________ VAN G. TANNER, Chair Palm Desert Planning Commission /tm 33