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Home My WebLink About0603 MINUTES PALM DESERT PLANNING COMMISSION REGULAR MEETING TUESDAY - JUNE 3, 1997 7:00 P.M. - CIVIC CENTER COUNCIL CHAMBER 73-510 FRED WARING DRIVE � *�*��*�**��*��*�*��*��*��*��*��***��*��*�� i. CALL TO ORDER Chairperson Ferguson called the meeting to order at 7:00 p.m. Il. PLEDGE OF ALLEGIANCE Commissioner Jonathan led in the pledge of allegiance. III. ROLL CALL Members Present: Jim Ferguson, Chairperson � '� � Sonia Campbell George Fernandez Sabby Jonathan Members Absent: Paul Beaty � Staff Present: Phil Drell Phil Joy Sandy Jacobson Mark Greenwood Martin Alvarez Tonya Monroe IV. APPROVAL OF MINUTES Consideration of the May 20, 1997 meeting minutes. Action: Moved by Commissioner Campbell, seconded by Commissioner Fernandez, approving the May 20, 1997 minutes. Carried 4-0. V. SUMMARY OF COUNCIL ACTION Mr. Drell indicated there were no items pertinent to Planning Commission at the May 22, 1997 City Council meeting. VI. ORAL COMMUNICATIONS MR. ROBERT WIRE, 73-867 Fred Waring Drive, stated that at this time there was a person named Louis Perez who was trying to obtain his area as R-3, � but he couldn't sell it as R-3 because no one wanted to be on a street with all the trucks and cars that were supposed to go 40 mph but went 70 mph. MINUTES PALM DESERT PLANNING COMMISSION JUNE 3, 1997 He indicated that Mr. Perez was wiliing to buy the property and he filed the � requirements such as letters, etc., to the Council and talked to the Planning �i Department and this was on the agenda at the last meeting. He said he knew this because he and his wife were here and they were the last two people to leave the area and no one else was present. At this time he questioned the Planning Department about what is transpiring with that property. Mr. Drell asked for clarification on the location of the property. Mr. Wire indicated that he was talking about property on Fred Waring that was only about 300 yards away from City Hall. � Mr. Martin Alvarez explained that he was talking about property west of Portola and indicated that an application was submitted to staff. Mr. Drell informed Mr. Wire that the application was being processed. Mr. Wire asked if staff could give him an approximate date when he could come back and it would be on the agenda. Mr. Alvarez noted that in talking with Mr. Steve Smith, City Council didn't meet at the end of July or the beginning of August, so staff could proceed with the application and bring it to the Planning Commission, but not to City Council until w� early September. Mr. Drell concurred. He stated that staff would contact Mr. Wire and let him know when the hearing will be scheduled. VII. CONSENT CALENDAR None. VIII. PUBLIC HEARINGS A. Continued Case No. PM 27136 - RONALD F. CORN AND LINDA G. CORN, Applicants Request for approval of a parcel map splitting an existing 18,354 square foot lot into two 9,177 square foot lots located on the east side of McLachlin Circle in Avondale Country Club. Mr. Drell explained that a letter from the applicant was received which requested a six-month continuance to allow him to work with the Homeowners Association to get a more positive recommendation from them on his proposed parcel map. ' :� � 2 MINUTES PALM DESERT PLANNING COMMISSION JUNE 3, 1997 " Mr. Dreli stated that if the continuance was granted, staff would readvertise the �' hearin for six months (December 2). At this 9 point in time since most homeowners are gone for the summer, he didn't feel it was appropriate to proceed during the summer. Chairperson Ferguson stated that he noted that the letter was received yesterday, but the staff recommendation that came out Friday recommended denial without prejudice. Chairperson Ferguson asked if the staff recommendation had changed at all in light of this request for a continuance. Mr. Drell said he couldn't see any reason not to grant the continuance. Chairperson Ferguson opened the public hearing to allow for comments in FAVOR or OPPOSITION to the proposal. MR. LARRY KELFER, 75-631 McLachlin Circle in Avondale Golf Club, Palm Desert, stated that he was shocked to hear the request for a six month continuance since this has been going on for five years, since 1992. He saw no reason for a continuance. He indicated that Mr. Corn attended a May 20, 1997 homeowners meeting to speak to the Board of Directors. He presented a plan showing two buildings for the split plot and he didn't know what the ' recommendation was by the Homeowners Directors, and their President, Mr. � Bryson, was here, but they had 20 of 21 homeowners on McLachlin against splitting the lot, for the second time, meaning five years ago and now. They have a lot owners, Mr. Purdy, who has a large if not larger lot adjoining Mr. Corn's and he was totally against splitting any lots. Mr. Anthony Carona with two large lots, McLachlin and Tandika area, totally against splitting any lots. He said he could go on and on. If the precedence was set now by splitting lots, then they have other areas like Temple Lane with large lots, beautiful expensive homes up to 10,000 square feet. As he stated at the last hearing, McLachlin was a little unique. They have large homes that averaged in size from 3,100 square feet up to 7,500 square feet. If any of the Planning Commission had been along McLachlin, then they would have recognized what beautiful homes they have on McLachlin. Commissioner Jonathan asked Mr. Kelfer if there was a prevailing reason not to grant the continuance. Mr. Kelfer said this has been going on for five years and he could see no reason for the continuance, except when Mr. Corn met the Homeowner's Board and had the plan of two houses that would fit on the split lot, what more could there be in six months time and the excuse of people being away, � 3 MINUTES PALM DESERT PLANNING COMMISSION JUNE 3, 1997 they were talking about McLachlin homeowners who were fighting for not splitting the lots and asked what that had to do with other people. If they took in Temple Lane as he said earlier where they have large lots and beautiful, expensive homes, they would be at the meeting against the Temple Lane lots being split. He felt that they should hear from the President of the Homeowners Association because he had not been privy to what they had to say in an executive session. Commissioner Jonathan asked if it would personally cause Mr. Kelfer any hardship if the matter were continued for six months. Mr. Kelfer replied that he couldn't say it would be a hardship, it was just a matter taking longer. Commissioner Jonathan said he understood because he was here when it came before commission five years ago, but confirmed that Mr. Kelfer wouldn't have any specific hardship cause by a continuance. Mr. Kelfer replied no. � Chairperson Ferguson noted from the staff report that the reason for the denial without prejudice meant that the Corns were free to reapply at any time and it didn't solve anything, as opposed to a continuance to allow the Avondale Homeowners Association to adopt definitive standards in their CC&Rs for minimum lot sizes, standards and dimensions which would resolve these issues going on in the future. He asked if Mr. Kelfer knew of any prejudice to anyone by continuing this six months to allow the Homeowners Association to do just that. Mr. Kelfer said he didn't know of anyone, except for those that might be at the meeting with him that might have something to say. He couldn't speak for them. MR. MAX WESTBAY, 75-630 McLachlin Circle, stated that since this case had been going on for five years, the commission was asking if had anything to do with the individuals, it was mental anguish as to what was going to happen and if it was going to happen, if it was continuing, continuing and - continuing. Those of them that signed the petition would like to have a definitive answer to get the matter settled. '� � 4 MINUTES PALM DESERT PLANNING COMMISSION JUNE 3, 1997 Chairperson Ferguson asked if anyone else wished to address the commission. �"" There was no one. Chairperson Ferguson closed the public hearing and asked for commission comments. Commissioner Jonathan asked if there was a specific reason the continuance had to be for six months or if it could be for three months. Mr. Drell acknowledged that it could be continued for three months. Right now there was nothing in their CC&Rs nor anything definitively necessary in the Zoning Ordinance which regulates the situation. Therefore, if the Homeowners Association wanted to provide certainty in the future, staff had suggested a way to do that and it might take six months. If they do that and rezone this country club a zone which has a minimum lot size, then this application would be precluded and in essence automatically denied if it ever came back. That was the only way they could have certainty and staff felt that six months was an appropriate amount of time. Commissioner- Jonathan noted that the applicant might feel that kind of a retroactive application might be equitable. He thought it might make sense to continue the case for three months and hoped that would motivate all parties to resolve their differences and if they don't resolve it in three months, they would be back before commission asking for another continuance. Mr. Drell said that those people would have to come back again. �'°'" Commissioner Campbell agreed with Commissioner Jonathan that three months was ample time and if these people weren't available in the summer time, there was always the mail and they could send their comments to the commission through the mail. Commissioner Fernandez also said that three months would be acceptable to him and agreed with Commissioner Jonathan. Chairperson Ferguson said his only concern was that this was going to be a rote function since he has represented homeowners associations and knew that most residents didn't come back until early November. If they were considering an amendment to their CC&Rs it would require a certain number of homeowners to be present and able to vote and he was highly skeptical of any resolution short of a change in the CC&Rs, but he would support the commission and asked for a motion. Commissioner Jonathan agreed with Chairperson Ferguson that the Association might have problems, but he sympathized with the residents at the meeting since this has gone on for a number of years and maybe this would motivate the parties to get something done. If not, perhaps they would have to consider an additional time extension. �.. 5 MINUTES PALM DESERT PLANNING COMMISSION JUNE 3, 1997 Action• � Moved by Commissioner Jonathan, seconded by Commission Campbell, continuing � PM 27136 to September 2, 1997 by minute motion. Carried 4-0. B. Continued Case No. C/Z 90-12 Amendment No. 1 Development Agreement - CREST PARTNERS (MILLER RICHARDS PARTNERSHIP), Applicants Request for approval of pre-annexation zoning of 640 acres north of the "Cahuilla Hills" area and 55 acres across the Palm Valley Channel from the "Sommerset" condominiums to Planned Community/Hillside Planned Residential with a development agreement for a project known as "The Crest" consisting of 151 homesites on 695 acres (410 acres to be dedicated as open space). Mr. Drell stated that at the last meeting there were some unresolved issues relative to the development agreement and PCD documents. Staff was unaware if those issues had been resolved, hence was recommending a continuance to June 17, 1997. Chairperson Ferguson opened the public hearing and asked anyone wishing to � speak in FAVOR of the application to speak first, then anyone in OPPOSITION, then, if necessary, a short rebuttal period would be provided to the applicant. MR. PAUL SELZER, representing the applicant, stated that they agreed with the recommendation of staff and thanked the Planning staff and Chairperson Ferguson for the time they spent with them to work on the unresolved issues. He believed that they have worked out all of the questions that were raised at the last meeting and thought it was a matter of them getting that on paper and back to the commission on the 17th. He said he would make one request. They were anxious to have this matter before the City Council as quickly as possible. This had been around City Hall for eight yea�s. They knew of no significant opposition to the project and in fact had received nothing but accolades from their neighbors and they would like to see it closed. With that in mind, he respectfully requested that at the next meeting they not be continued again because he felt the documents would speak for themselves and they agreed to revise the documents in conformance with the discussions with staff and Chairperson Ferguson. He requested that at the next meeting the Planning Commission make their recommendation up or down so that they could proceed to the City Council at their meeting of June � � 26, which would allow, if Council passed it, to go to second reading on July � � 6 MINUTES PALM DESERT PLANNING COMMISSION JUNE 3, 1997 10. That would require notice of the City Council public hearing to be �"""' published by the City Clsrk prior to the Planning Commission hearing, but legalty he thought that was fine because it didn't say in favor or against, it just said there would be a public hearing. With that they agreed with the recommendation of staff and assured commission that they would be busy the next few days making the changes they have agreed upon with staff and the Chairman. He asked if there were any questions. Chairperson Ferguson announced for those in the audience that many of the issues that were raised at the last Planning Commission were in the process of being addressed by Mr. Miller and Mr. Selzer. No definitive agreements had been reached, but they made tremendous progress and Commission was awaiting final resubmittal of the development agreement, a contour plan for the pads and greater specificity. None of that had been made available yet, so the Commission wasn't in a position to vote on anything tonight, but he would open the public hearing, receive public testimony and stated that the next meeting would be June 17 and those definitive plans would be available at the Planning Department for anyone to pick up and evaluate. He asked if anyone else wished to address the Commission. MR. CALVIN CREE, 47-400 South Cliff Road, Section 30 in Palm Desert. Mr. � Cree stated that he was in support of this project and was excited that for the first time in the 24 years that he has lived in Palm Desert this area outside of the Bighorn development would finally be getting some deservedly positive attention from the City of Palm Desert. He said he was also excited about seeing for the first time in 24 years in this area, in addition to Section 30 where he lives, controlled environmentally compatible development and management for the open space instead of the neglect of the open space in this area. DR. JERRY MEINTS, 71-450 Painted Canyon in Cahuilla Hills, stated that he was one of the ten property owners who could actuatly see this project once it is completed. He said he also lived completely adjacent to this particular community and he too would not repeat all of the comments that he shared at the last meeting, but wanted to go on record that he was in support of this project for the following reasons. 1 ) There was no hilltop construction. 2) It was the most ecologically protective development that has ever been proposed in the Coachella Valley. Only about 10 percent of the 750 acres were being proposed for development and for those that live in the Cahuilla Hills, many of them were naturalists and they do a lot of hiking, they really appreciated the open space and the ability to enjoy the canyons and hillside, � 7 MINUTES PALM DESERT PLANNING COMMISSION JUNE 3, 1997 and it looked as if the would have a lar e number of acres the could Y 9 Y � continue to use for those purposes. In addition, there was no golf course � being proposed and he felt that was a blessing to them that live in the Cahuilla Hills. Also this project would enhance and was compatible with the rustic hillside character of the Cahuilla Hills and they were up there because they like �anch living, like open spaces and enjoy the natural environment and believe this project is the first of its type to offer that kind of development here in California. He said he has seen similar projects like Troon and Desert Mountain in Scottsdale, but for the first time Palm Desert would be ahead of the pack. He stated that this development also proposes to provide the Cahuilla Hills residents with an emergency access route. Before they only had one entrance and one exit and if there was an emergency and that exit was blocked, they were in real trouble, so the Cahuilla Hills residents would now have the ability, like the project would have the ability, to use a crash gate in the event-of any emergency. He also, with the reassurance of this Chairman and the Planning Commission last week, was beginning to have some confidence that the City would hold the developer's feet to the fire and maintain the agreement as it will be specified and there would be no more eleventh-hour deals as they experienced with Bighorn. He said that subsequent to his last confrontation of that, another hillside had been scraped away and dozed into oblivion on the property of Bighorn. He stated that he never wants to see that happen on this project and would really appreciate this commission's and the City watch dogging this so that the developers do exactly what is proposed and continue to make this project one that will enhance the natural hillside development. Chairperson Ferguson closed the public hearing and asked for comments by the commission. Commissioner Jonathan recused himself from this application. Commissioner Campbell stated that she would move to continue the hearing to June 17. Action: Moved by Commissioner Campbell, seconded by Commissioner Fernandez, continuing C/Z 90-12 Amendment No. 1 Development Agreement to June 17, 1997 by minute motion. Chairperson Ferguson said he would ask for discussion because he believed Mr. Selzer asked for something a little out of the ordinary, which was that the commission approve the public notice for the City Council meeting two days before the Planning Commission has the hearing on the continued matter, which he was not necessarily opposed to, but he wanted the notice to indicate that the hearing by the City Council was contingent upon the 8 MINUTES PALM DESERT PLANNING COMMISSION JUNE 3, 1997 Planning Commission's approving and passing along the proposal and not � continuing it so that people would have the opportunity to check with the City to see if in fact the Planning Commission approved it. Mr. Drell stated that he was not sure the notice had to say that because, in essence, it would go to the Council whether the Commission approved it or denied it. Chairperson Ferguson asked what would happen if the Planning Commission continued it. Mr. Drell said that Mr. Selzer was going to demand either a yes or a no. Mr. Selzer asked to address the commission. He said that they were not in a position to make any demands-- what he thought he said was that they would like for the commission to make its decision at the next meeting. They were not prejudging what the decision would be, but that wanted a decision so that they could get it to the Council. He thought that every known issue had been addressed so they asked that Planning Commission give them either a recommendation or not a recommendation so that they could go to Council at its meeting of June 26. They were not asking the Planning Commission to prejudge anything tonight, all they were asking was that they give them a decision at the June 17 meeting. Therefore, he agreed with Mr. Drell that the notice didn't have to say anything other than that there would be a City Council meeting because that was all it would be. This would be on the City Council agenda and it would be either with their recommendation or without their recommendation. He recognized that he couldn't put the Planning Commission in a position today to say "don't worry we're going to recommend it" and they �"'' weren't asking for that and weren't anticipating that. What they did anticipate and respectfully requested was that at that meeting the Commission make its decision. He thought that with the details they have gone through they should be in a � position to do that. Chairperson Ferguson said he didn't want to be misunderstood and in fact wanted to compliment both Mr. Selzer and Mr. Miller for the efforts they put into refining their agreement and bringing it to the point that he was confident that they could make a decision. However, he was a little leery about publishing a hearing that presupposes the Planning Commission action on a matter they haven't seen in front of them with specificity. The applicant was saying that they would take the matter to Council whether the Planning Commission gives an opinion on it or not. Mr. Selzer clarified that they couldn't go to Council without an opinion. They were asking that Planning Commission make a decision at that meeting, either yes or no. Chairperson Ferguson said that if the applicant provides the information that the Commission requested, then they should be able to make that opinion without any problem. If they didn't, he didn't want to presuppose anything. Mr. Selzer said they would get the information. Chairperson Ferguson deferred the matter to staff on the appropriate amount of notice and any disclaimer that should be associated therewith. He called for a vote. Motion carried 3-0-1 (Commissioner Jonathan abstained). � 9 MINUTES PALM DESERT PLANNING COMMISSION JUNE 3, 1997 C. Case No. CUP 97-6 - JERRY WALKER, Applicant � Request for approval of a Negative Declaration of Environmental Impact and conditional use permit to allow the operation of a 3,200 square foot Del Taco restaurant located at 74-617 Highway 1 1 1 . Mr. Alvarez stated that the subject property was located at 74-617 Highway 1 1 1 , on the south side of Highway 1 1 1 between John's Restaurant and the Holiday Inn. This property was a half acre parcel zoned General Commercial that fronts on Palm Desert Drive South. The site was currently occupied by the Desert Sun. Del Taco was proposing to convert and remodel the existing 2300 square foot building into a 3200 square foot restaurant without a drive-through. Currently Southern California Edison owns the property and would be selling it to the applicant, but would retain two easements through the property to serve their existing facility at the rear of the-subject parcel. The easements consisted of a driveway on the east edge of the property and a second easement consisting of five feet on the western edge of the property. Site plans and elevations were on display. Mr. Alvarez explained that the restaurant would seat a total of 65 persons. The indoor area would have 48 seats and a play area and the outdoor patio would seat 17 and front on Palm Desert Drive South. The hours of operation were proposed at 6:00 a.m. until 2:00 a.m. seven days a week. The site plan indicated that there would ; be a singular access off of Palm Desert Drive South. The project would have a "'� total of 40 off street parking spaces which exceeds the 33 required by the Zoning � Ordinance. The Architectural Review Committee reviewed the elevations and architectural design and granted preliminary approval at the May 13, 1997 meeting. As indicated in the staff report, the project would meet all the City's development standards. For purposes of CEQA this project would not have a significant negative impact on the environment and a Negative Declaration had been prepared. Staff recommended approval of CUP 97-6 and adoption of the resolution subject to the attached conditions. Commissioner Campbell asked if Mr. Alvarez obtained the information she requested. Mr. Alvarez stated that he had a handout that he would distribute. Chairperson Ferguson clarified for the audience that Commissioner Campbell inquired about the operating hours of all "fast food" restaurants in Palm Desert, as well as any restaurant within the immediate vicinity of this particular application. The application contained a request to remain open until 2:00 a.m. and commission received a list of the various operating hours of other restaurants. Chairperson Ferguson o ened the public hearing and invited the applicant to address the commission. ; � 10 MINUTES PALM DESERT PLANNING COMMISSION JUNE 3, 1997 MR. JERRY WALKER, 76-968 California Avenue in Palm Desert, stated that � he has lived there for the last 12 years. He indicated that he has been with Del Taco for 21 years and Palm Desert has come a long way and he convinced Del Taco to franchise here in Palm Desert. They have been ope�ating in Cathedral City and Indio for the last 16 years. When they saw Burger King come in they thought that was an opportunity for them to approach Del Taco and Del Taco came back and said no. Now there was another opportunity and they have given them the okay to proceed. He said he was not planning to stay open until 2:00 a.m. He would like to have that availability and would probably close at 11 :00 p.m. or 12:00 p.m. There would be some weekends with special events and he would like to have the option of staying open later. He thought the business would be very successful in the city of Palm Desert and would also facilitate schools that are close by as well as the hotels. Commissioner Jonathan asked if there were normal operating hours for Del Tacos. Mr. Walker informed commission that company stores were open 24 hours and franchisers sign an agreement to be 7:00 a.m. to 1 1 :00 p.m. minimum. Commissioner Campbell asked if those were the hours of the other Del Tacos in '� Indio and Cathedral City. Mr. Walker said they were open until 1 :00 a.m. on Friday and Saturday in Indio and until 2:00 a.m. on Friday and Saturday in Cathedral City. Commissioner Campbell asked if Cathedral City had quite a few customers frequenting the establishment at 2:00 a.m. Mr. Walker stated that most of the operations were 24 hour drive-throughs, but noted that he wouldn't have a drive-through, he would just like the opportunity to be successful. Commissioner Campbell asked if there had ever been any problems or criminal activity because of those hours. Mr. Walker said no. Chairperson Ferguson informed Mr. Walker that the survey they had been given showed there was no fast food or any restaurant in Palm Desert open past 12:00 a.m. and his neighbors to the west and across the street closed at 10:00 p.m. � 11 MINUTES PALM DESERT PLANNING COMMISSION JUNE 3, 1997 Burger King stayed open until midnight on Friday and Saturday. Everyone else � seemed to close at 10:00 p.m. or 1 1 :00 p.m. Chairperson Ferguson asked what � special events Mr. Walker would service by staying open until 2:00 a.m. Mr. Walker clarified that the special events would be the Date Festival, tennis matches, special events at hotels that last late into the night and indicated the hotel restaurants close early and it would be an opportunity for him. Chairperson Ferguson asked if a 12:00 a.m. limit would affect his business decision to open a Del Taco. Mr. Walker replied no. Commissioner Jonathan asked if when there were special occasions like a tennis tournament when it made it important to Mr. Walker to have extended hours, if he would know ahead of time and if he would be able to process a special request through the City to that effect. Mr. Walker replied yes. Chairperson Ferguson asked if anyone wished to speak in FAVOR or OPPOSITION � to the proposal. There was no one and the public hearing was closed. • Commissioner Jonathan said Commissioner's Campbell concem was well taken. He thought that 6:00 a.m. to 12:00 a.m. was a more reasonable start and if the applicant found later on that he needed extended hours or if there were special events, he could come back and request that. Commissioner Jonathan stated that the rest of the application was wonderful and he looked forward to having a Del Taco in Palm Desert and recommended that the 6:00 a.m. to 12:00 a.m. operating hours be adopted as the normal operating hours, seven days per week. Chairperson Ferguson asked if that was a motion. Commissioner Jonathan concurred. Commissioner Campbell noted no one was present in opposition from the surrounding area, so she would second the motion. Action: Moved by Commissioner Jonathan, seconded by Commissioner Campbell, approving the findings as presented by staff. Chairperson Ferguson concurred with Commissioner Jonathan. He liked to see standards in Palm Desert somewhat uniform and most businesses were closed by 12:00 a.m., but 2:00 a.m. might be 12 MINUTES PALM DESERT PLANNING COMMISSION JUNE 3, 1997 acceptable under special circumstances which they could deal with on an as �"" needed basis. He thought the balance of the application looked fine and indicated he was a large fan of Mexican food and looked forward to patronizing this establishment. Commissioner Fernandez stated that he was also in favor of the project with the proposed hours. Chairperson Ferguson called for the vote. Motion carried 4-0. Moved by Commissioner Jonathan, seconded by Commissioner Campbell, adopting Planning Commission Resolution No. 1808, approving CUP 97-6, subject to conditions as amended. Carried 4-0. D. Case No. CUP 97-8 - MONTE SINAI, Applicant Request for approval of a conditional use permit to establish a 750 square foot church (Monte Sinai) located in the R-3 Residential District at 44-850 Las Palmas, Suite G. Mr. Alvarez stated that currently this applicant operates a church in Perris California and would like to operate church related meetings, small prayer and outreach programs within Suite G, a 750 square foot suite located at 44-850 Las �` Palmas. The subject site was located within a 5,000 square foot office building which housed six other tenants. The church would have a maximum of 20 persons at any one time and would operate during weekday evenings and on weekends as specified in the staff report. Those times would be Tuesday, Thursday and Friday 7:00 p.m. to 9:00 p.m.; twice Saturday at 10:00 a.m. to 2:00 p.m. and 7:00 p.m. to 9:00 p.m.; and Sunday evening. He noted that in November of 1996 Planning Commission approved a conditional use permit to allow operation of a Kung Fu School in the same office building. The Kung Fu School was approved to operate weekdays after 5:00 p.m. and on weekends. Operating with its maximum of 15 students, the Kung Fu School occupies six of the existing 21 parking spaces. The school's hours are Monday, Tuesday and Thursday 5:00 p.m. to 8:00 p.m. and Saturday mornings 9:00 a.m. to 1 1 :00 a.m. The site has 21 parking spaces which are shared by the seven tenants. The only two businesses that would operate in the evening and on weekends would be the proposed church and school. With a total seating area of 650 square feet and no fixed seats, the church would require 18 off street parking spaces and they would be utilized in the evenings and would create a deficiency of three spaces. The building's property manager indicated that the property owner was willing to allow the church to use the adjacent parking lot that is located directly east at 23-344 San Pablo. All the businesses at that location closed at 5:00 p.m. and on � 13 MINUTES PALM DESERT PLANNING COMMISSION JUNE 3, 1997 � weekends. With the permission of the property owner to use those spaces directly � adjacent, staff felt that the church's deficiency in parking could be compensated � for. Staff �ecommended approval. Commissioner Campbell asked if this church expanded to more than 20 people, if there would be a problem being in this location. Mr. Alvarez said there could potentially be parking problems, but its maximum occupancy was restricted to 20 persons in the conditions of approval and the City would enforce that condition. Commissioner Campbell asked if there was enough square footage in that area to allow more than 20 persons. Mr. Alvarez indicated he didn't know the maximum occupancy of the site. Mr. Drell stated that if there was never a problem, the City wouldn't have to deal with it. If there was a parking problem, and the City investigates and it turns out they have more than 20 persons, then they would be in violation of the CUP. Chairperson Ferguson opened the public hearing and invited the applicant to address the commission. Mr. Alvarez stated that he would interpret for the applicant. MR. JESUS CHAVEZ, 32-150 Rancho Vista Apartment 2 in Cathedral City, � stated that he was the applicant and was requesting approval of the request. He was present to answer any questions. Chairperson Ferguson asked if the applicant had reviewed the conditions and understood the 20 person limitation and had no problem with the conditions. Mr. Chavez replied yes. Chairperson Ferguson asked if anyone wished to speak in FAVOR or OPPOSITION to the proposal. There was no one and the public hearing was closed. Chairperson Ferguson asked for commission comments. Commissioner Campbell stated that she didn't have a problem with the church being there as long as it was limited to 20 people and if they needed to expand, they could come back and ask for a new conditional use permit. She stated that she was in favor of the application and would move to approve it. Commissioner Fernandez stated that he would second the motion and was also in favor of the application. , � :� 14 MINUTES PALM DESERT PLANNING COMMISSION JUNE 3, 1997 Action: '�"' Moved by Commissioner Campbell, seconded by Commissioner Fernandez, approving the findings as presented by staff. Carried 4-0. Moved by Commissioner Campbell, seconded by Commissioner Fernandez, adopting Planning Commission Resolution No. 1809, approving CUP 97-8, subject to conditions. Carried 4-0. E. Case Nos. C/Z 97-7 and PP 97-7 - ANDREW PIERCE CORPORATION/ GARY LOHMAN, APPLICANT Request for approval of a change of zone from R-1 (residential) to Office Professional and a precise plan to allow the conversion of a 1 ,581 square foot-residence into an office located at 44-835 Deep Canyon. Mr. Alvarez explained that the subject property was located on the west side of Deep Canyon, one parcel north of Alessandro at 44-835 Deep Canyon. The property currently has a single family residence on the site. Adjacent uses were R-1 to the north and west, Office Professional to the south and Commercial to the east. The property was currently zoned R-1 13,000 and the applicant was `� requesting a zone change to Office Professional. Mr. Alvarez noted that in 1984 the subject parcel was part of the Palma Village Specific Plan which was adopted by City Council. That plan specifically included designating this parcel as Office Professional in the General Plan. The change of zone being requested would be consistent with both the Specific Plan and General Plan. Relating to the precise plan, the plan includes conversion of the existing 1500 square foot residence into an office use. The conversion would include improvements to the interior and exterior and the applicant specifically planned to remodel the inside, painting the exterior and landscaping the front yard to create a more appealing site. Mr. Alvarez noted that there were pictures of the site and a landscaping plan on display. The office would be used by a developer/builder of custom homes and the office would have three employees and would operate 8:00 a.m. to 5:00 p.m. Monday through Friday. Relating to parking the site currently has two covered parking spaces and the applicant would add four more for a total of six parking spaces which is in conformance with the ordinance requirements for this size and use. Hardscape improvements included an addition of a second approach to make ingress and egress more easy onto Deep Canyon Road. The Architectural Review Commission reviewed and approved landscape plans on May 27. For purposes of CEQA this project would be a Class 3 Categorical Exemption and no further documentation was necessary. Staff recommended that Planning Commission � 15 MINUTES PALM DESERT PLANNING COMMISSION JUNE 3, 1997 � make a recommendation of approval to the City Council for both the Change of �� Zone and the Precise Plan, sub�ect to the proposed conditions. Commissioner Jonathan noted that the Architectural Review Commission gave approval to the landscaping plan and the staff report indicated that other than exterior painting there would be no modification to the exterior to the structure, so it would continue to look like a residence but would operate as an office within. Mr. Alvarez concurred. Chairperson Ferguson asked if the map on the wall was part of this application and why the commission didn't receive a copy of it in their packets. He noted that what they did receive didn't include any elevations or landscaping. Mr. Alvarez stated that the plan on display was prepared by the applicant and the reason it was not included was that it was only recently approved by the Architectural Review Commission and they didn't have enough time to copy and submit it to commission. Commissioner Jonathan noted that along the Monterey corridor a nice job had been done in converting residential use to office use, which from his experience was not a significant expense to the developer. He asked why the City wasn't � pursuing that kind of alteration for the Deep Canyon corridor and if it was � something that staff had addressed. Mr. Drell noted that the design of this particular building was almost entirely obscured by the existing trees. It was a . fairly nondescript building.and any significant modification would be hidden by the landscaping. Here the effort they put into landscaping that one piece of the building and doing high quality site development of that area to achieve the desired result. This building was already setback and it didn't seem to be cost effective to do anything to it because it wouldn't be seen. Chairperson Ferguson opened the public hearing and invited the applicant to address the commission. MR. GARY LOHMAN, 75-570 Mary Lane in Indian Wells, stated that he was present to answer any questions. He commented that relative to the architecture of the building, it actually didn't have a lot, but it was consistent with the architecture of the building next door that was Office Professional --it was Dennis Godecke's accounting office. He said that was depicted in the photograph as coming out of the Lucky shopping center. Dennis Godecke's building was to the left and the subject property was on the right and they both had a gabled roof and that was the only thing that could be � � � 16 MINUTES PALM DESERT PLANNING COMMISSION JUNE 3, 1997 seen from the street, other than landscaping per Ron Gregory's plan which `�"' had been approved to be installed. Chairperson Ferguson asked if Mr. Lohman planned on using this building for commercial purposes. Mr. Lohman said that he planned to occupy this with his office and staff. They were custom home builders at the Vintage Club, Bighorn Club and the new Tradition Club. Chairperson Ferguson asked if anyone was currently living there. Mr. Lohman explained that it was cu�rently an abandoned building. He said that he supposed that some time in the future they might come back to Commissron with a plan to do an office building, but it was not their intent at this time. They thought it made a good transition to keep it in its existing manner relative to the residential community adjacent to it on the north side. Commissioner Jonathan noted that he was very familiar with the property and utilized Deep Canyon once or twice a day. Right now it was a residential structure and as such was consistent with the rest of the property which is zoned `�""'' residential. Mr. Lohman was seeking a change of zone to office professional, but stated that at a later time he might consider converting this to an office, so what he was really looking to do, and it was a question, was that he would not convert the structure in any major way, but more to convert its use from a Residential use to Office Professional. Mr. Lohman said that was correct. They were asking for a change of zone and they would be using the building as it stands intact and basically re- carpeting and repainting. Commissioner Jonathan asked Mr. Lohman if he was familiar with the projects that he was talking about on Portola and on Monterey. Mr. Lohman said he was familiar with those. Commissioner Jonathan asked if Mr. Lohman had considered that type of conversion. Mr. Lohman didn't believe it would be cost effective. He interviewed the neighbors to the north and at some time they want to come in with a change �r 17 MINUTES PALM DESERT PLANNING COMMISSION JUNE 3, 1997 ;� of zone request and the Planning staff said they would recommend that and at some time in the future it would be good to �oin the three properties and do one compiex on three properties. In that respect it would be a tear down. Commissioner Jonathan stated that there is a history of just that on Monterey and he thought it has worked out rather well. Chairperson Ferguson said he had just looked at the pictures and hadn't seen the plan before tonight and asked what he would be doing exactly to clean up the property in terms of landscaping. Mr. Lohman said they were doing hardscape relative to the parking requirement. They were adding an additional driveway approach so that cars wouldn't have to back out and it would be a loop drive similar to the property immediately adjacent to the north. Chairperson Ferguson asked if they were adding trees. Mr. Lohman said there was an unkept cactus there and basically they were taking all of that out and were adding seven trees and completely landscaping "A the front of the building. � Chairperson Ferguson asked for clarification on what Mr. Lohman meant when he . said "compl�tely landscaping", Mr. Lohman said it was on the plan. They were taking down the existing wood fences because there were walls on both sides of the property. They were putting in espalier vines on those walls and they were adding shrubs as designated on the plan, some boulders, some palm trees and two other types of trees so that the building would be pretty well screened out from the street. Commissioner Campbell asked if he would be moving the big tree from the front. Mr. Lohman replied no and explained that they would just prune it since it provided shaded parking. Chairperson Ferguson asked if anyone wished to speak in FAVOR or OPPOSITION to the proposal. There was no one and the public hearing was closed. He asked for commission comments. ;� � 18 MINUTES PALM DESERT PLANNING COMMISSION JUNE 3, 1997 Commissioner Jonathan stated that he was in favor of the change of zone, but not �" the precise plan. He thought they had an opportunity and the responsibility to see that the conversion of the Deep Canyon corridor would be up to the standards that have been set along Fred Waring, Monterey and other portions of the Las Palmas Overlay Zone. He didn't want to miss that opportunity or to allow what he thought were substandard residential structures to continue in the form of office professional use. Commissioner Campbell asked if Mr. Lohman would have to return with a different plan. Commissioner Jonathan confirmed that hoped he would do so and he was not looking for anything major, but at least something on the Deep Canyon view point to present something that appears to be an office. There had been some relatively inexpensive conversions done in the city so he didn't think it had to be that costly and in the long run would probably be cost effective, although that was not a Planning-C�mmission issue. From his standpoint, what he would like to see developed along that corridor was similar to development in other parts of the city. He thought the applicant should return to the commission with a precise plan that reflects an office professional use and looks like an office. Commissioner Fernandez agreed with Commissioner Jonathan and stressed the importance of being consistent with the way the city looks as it is developed. � Chairperson Ferguson stated he also concurred with Commissioner Jonathan. He didn't oppose the change of zone, although he mentioned that it was interesting that Mr. Godecke started out being a buffer between residential and commercial and now that buffer seemed to be getting bigger and bigger. He didn't oppose the change of zone and if he had seen some elevations of the property as it would be built out, it might help him but conceptually he was left wanting as he believed Commissioner Jonathan and Commissioner Fernandez had expressed. Commissioner Jonathan stated that the motion for the change of zone would be to recommend approval to City Council. As for the precise plan portion, he would be willing to continue it if that was what the applicant wanted and he could return with his response. If he preferred to go forward with a vote, the commission could do that. He asked if the applicant would like to comment. Mr. Drell summarized that what the commission was looking for were more illustrative plans of the after condition of the property with the landscaping if that was all that was to be done. Commissioner Jonathan said that he personally was looking for a little more. In his opinion he was looking for a structure that would look like an office building, but that might be a beginning. Mr. Drell indicated that � 19 MINUTES PALM DESERT PLANNING COMMISSION JUNE 3, 1997 '� ;� the first project done on San Gorgonio and Monterey was essentially landscaping � the front and painting a residence (a podiatrist and then State Farm). Later they � just put some awnings over the window. They cleaned up the landscaping and might have restuccoed the building. Otherwise it was essentially the same and they put up a sign and it looked like a semi commercial building. He said he thought they even kept the garage. Commissioner Jonathan said that was close, � but was not quite there although it might be close enough and that could be discussed. Mr. Lohman stated that they were trying hard not to look like an office building. They were not a store but an office professional use. They would like it to look, for now, more like a transition between the residential and commercial area and if they came back in with a proposal relative to the facade of the building, they would try to do something fairly consistent with Dennis Godecke's building. He thought that if the commission looked at the photographs the prominent feature on the building was the side of the garage and that was very consistent with the look of Dennis Godecke's building unless they raised that up to a higher elevation. He didn't know if that would be appropriate. He asked what the commission was looking for. Chairperson Ferguson stated that if Mr. Lohman's buitding looked anything like Mr. � Godecke's they wouldn't be having this discussion. He didn't find any � resemblance whatsoever. He noted that Mr. Gregory was a talented architect and thought he could give the :commission some elevations of what Mr. Lohman proposed to do which could bear Mr. Lohman's statement true, but he couldn't see that from what had been submitted tonight. Mr. Lohman indicated that Mr. Gregory was the landscape architect and they would get the help of an architect to do exterior elevations. Chairperson Ferguson thought that Mr. Gregory could do elevations and noted that as he understood it, Mr. Lohman was not proposing to do anything structurally with the building. Mr. Drell clarified that the commission was looking for a better illustration of what the property would look like after the landscaping was completed, so they needed an elevation of the completed plan or a prospective of the completed landscaping since Mr. Lohman was not proposing any structural changes and was relying entirely on the landscaping to create that semi- professional upgrade. He thought Mr. Lohman needed a more illustrative exhibit to convince the commission that could be accomplished. � � ;� � 20 MINUTES PALM DESERT PLANNING COMMISSION JUNE 3, 1997 Mr. Lohman said they could do that for the Planning Commission but '`r"" understood that the Architectural Review Commission was approving that portion of it and they understood what he was proposing and approved it. Chairperson Ferguson noted that those maps hadn't been supplied to the commission. Commissioner Jonathan indicated that if the clearer illustration indicates that this was simply a residence being used as an office that to him would not be persuasive. If it was a residential looking office like Mr. Godecke's office that was fine, but if the illustrations showed that it was strictly an old house being used as an office, speaking for himself he would not be persuaded. He thought this discussion might give Mr. Lohman some direction and asked if Mr. Lohman was in favor of a continuance. Mr. Lohman stated that he would rather the commission vote relative to the change of zone because there was a real estate deal pending relative to that and they wanted to know what Mr. Lohman intends to do. He thought they could accomplish what the Planning Commission wants. Commissioner Jonathan said the commission would then vote on the change of � zone and handle separately the precise plan. Mr. Lohman concurred. Commissioner Jonathan stated that he had no problem with doing that and would make the motion to approve the change of zone and continue PP 97-7 to June 17, 1997. Chairperson Ferguson noted that the first motion would be to approve the findings as presented by staff and modified at the meeting. Action: Moved by Commissioner Jonathan, seconded by Commissioner Fernandez, approving the findings as presented by staff. Carried 4-0. Moved by Commissioner Jonathan, seconded by Commissioner Fernandez, adopting Planning Commission Resolution No. 1810, recommending to City Council approval of C/Z 97-7. Moved by Commissioner Jonathan, seconded by Commissioner Fernandez, continuing PP 97-7 to June 17, 1997 by minute motion. Carried 4-0. � 21 MINUTES PALM DESERT PLANNING COMMISSION JUNE 3, 1997 F. Case Nos. GPA 96-1, C/Z 96-7, Vestin TT 25296 Revision, and Vesting TT � 9 � 28575 - WINMAR PALM DESERT, L.L.C., Applicant Request for approval of a revised vesting tentative tract map to allow development of a 372-unit country club (Canyons at Bighorn) on 457 acres east of Highway 74, extending 5,700 feet south from Indian Hills Way: a general plan amendment and pre-annexation change of zone for 57 acres east of the tract to hillside planned residential; a general plan amendment to low density residential 3-5 du/ac and pre-annexation zone change to PR-5 for five acres south of the project on Highway 74, a vesting tentative map for the later two parcels for 23 units and a Second Addendum to the Final Environmental Impact Report for The Canyons at Bighorn (Altamira). Mr. Drell statetl that this project involves the vacant property on the south side of the city extending from the Indian Hills condominiums, the Summit southward to the southerly city limits, bounded by the Bighorn Institute and a 12-acre parcel known as the Laliberte or Del Gagnon property. On the east it was bounded by some vacant land adjacent to Ironwood Country Club and the other properties within the gates of Ironwood Country Club. He indicated that since the original '� , application approved in 1992, the applicant had submitted a new map adding 123 ' acres along Highway 74 across from the existing Bighorn Country Club entrance commonly known as the Sun Creek property which includes five acres directly south of that in the County. Also 57 acres had been added to the east which was presently in the County and was property owned by the Coachella Valley Water District. Of the more than 500 acres, 385 were zoned PR-5 to PR-7 and 137 were zoned hillside. In between the hillside properties and the flat alluvial plain was the remnant of Dead Indian Creek whose drainage was mostly intercepted by the construction of the Palm Valley Debris Basin Channel. Under the current zoning, more than 2,000 units would be permitted on this property. The original request was filed for this project in 1989. Upon the request of the Bighorn Institute a first focused EIR was prepared with the principal issue being the potential impacts of the project on bighorn sheep within pens on the Bighorn Institute property. The pens were used for captive breeding for release into the Santa Rosa Mountains and general research on the declining state of the herds in the area. Subsequently a full EIR was ordered. The project was ultimately approved August 1991 and a Final Environmental Impact Report was certified for a 422-unit project on 344 acres. That EIR recommended that a minimum 400-yard buffer be created between the lambing pen on the Bighorn Institute property and the closest development within the project. As drawn the buffer varied between 400 and 600 yards. This was a conclusion based on extensive testimony from experts on sheep 22 MINUTES PALM DESERT PLANNING COMMISSION JUNE 3, 1997 from all over the country and was supported by a recommendation from the �""' California Department of Fish and Game who are the legal custodians for the sheep who are listed as an endangered species. This approval triggered a series of lawsuits involving the Bighorn Institute, County, Altamira (the applicant), the City and the owner of the Del Gagnon property. These lawsuits ultimately resulted in a settlement agreement by which the Bighorn Institute agreed to move their pen so that the 400-yard buffer would be created entirely on the Institute property, allowing development of the subject site brought up to its southerly boundary. An Addendum to the EIR was adopted consistent with the settlement agreement and a redesigned tract map was approved. In addition to the creation of the buffer on the Bighorn Institute property the applicant was to pay the Institute $2.1 million over a series of installments. After the first installment was made, a group called Winmar took over the project from the Altamira people and it was determined after extensive discussion and consultation with the Department of Fish and Game that the Institute and sheep experts felt that there were no alternative locations to move the pens as specified in the settlement agreement without potentially jeopardizing the breeding activities being carried on at the Institute. Given the steep declines of the sheep in the wild and the importance of the Institute's augmentation program, it was felt that the potential risk to that program which might result from moving the pens was deemed to be unacceptable. This conclusion triggered another series of negotiations between the City, the `�""" Department of Fish and Game, the Bighorn Institute and involving the U.S. Fish and Wildlife Service and U.S. Army Corps of Engineers, it was decided that the pens would remain at the present location and that the 400-yard buffer would again extend into the project and now that it included the property along Highway 74 to the west, that 400-yard buffer would extend into that new expanded property. This area within the buffer would be dedicated in perpetuity to the Department of Fish and Game or another public agency designated by the Department of Fish and Game and would be for permanent undeveloped open space. He said he would leave it to the applicant to describe the design aspects of the project. The project was originally designed with an overall density of 1 .22 units per acre and now that has been reduced from the original approval of 422 to 395, the density has been reduced to .76 units per acre. An analysis has been done on those areas within the hillside and that analysis showed that the proposed units in that area conform with the requirements of our ordinance. In that two pieces of the plan are now outside the city, they would have to process preannexation zoning and change of zone for the five-acre parcel along Highway 74 and the 57-acre parcel east of the project now in the county owned by CVWD. Both of those properties were within the sphere of the city of Palm Desert and were currently designated as open space. Basically those two open space conversions from O.P. to either Hillside Planned Residential in the case of the � 23 MINUTES PALM DESERT PLANNING COMMISSION JUNE 3, 1997 `':� hillside property east and PR-5 along Highway 74 were seen as partial compensation for the dedication of the 53 acres currently zoned PR-5 which would be dedicated. In addition, the Department of Fish and Game was requiring that a payment of $750,000 be provided by the applicant over a five-year period for sheep population augmentation in the Santa Rosa Mountains. He thought that gave the commission a brief history of the zoning issues which have never really been controversial in this project and the property was being developed as a second phase of the Bighorn Country Club and he had no doubt as to its quality. The issue was now and continued to be the potential environmental impacts on the sheep operations at the Institute and a Second Addendum to the EIR Initial Study had been prepared and the Environmental Consultant, Andi Culbertson, was present to discuss those issues. MS. M. ANDRIETTE CULBERTSON, President of Culbertson, Adams and Associates, stated that she has been the City's environmental consultant on this ; project beginning in 1990 through 1992 and she was �etained last year to consider for the City the application of the California Environmental Quality Act and other state laws for resource protection on this project. She said she wanted to add very briefly to Mr. Drell's very complete presentation on the project by explaining to commission the nature of the environmental documents before them, what state � law requires as CEQA documentation at this point, and she wanted to go on to � explain the very special role of the State Department of Fish and Game and their advice to commission. To the environmental documents, she stated that this was - a very straightforward process. The California Environmental Quality Act (CEQA for short) was very specific that once an environmental impact report has been prepared and certified by an agency, a very high threshold exists to require another one. There was a good reason for this. EIRs were designed to provide information to the decision makers and the public so that they could take intelligent account of the environmental consequences of the project. Clearly, if there was no seriously different environmental picture that was to be presented by any new data, then there was hardly any point in preparing another EIR. The state law therefore states that the City may not require another EIR on a project where an EIR has been previously certified if it finds that the changes to the project, the unde�lying circumstances, or new information do not show that impacts would be new from those previously considered in the EIR or more severe. To analyze this three-part test, they conducted an Expanded Initial Study and if that expanded initial study successfully passes the test, any necessary modifications to the EIR or its mitigation measures which are advisable in order to keep the document . usable and accurate may be pursued through the addendum process. Therefore, an addendum becomes almost a correction to the draft EIR for minor technical `� changes. She believed that was the case here. An addendum need not be 24 MINUTES PALM DESERT PLANNING COMMISSION JUNE 3, 1997 circulated for public review. It need only be presented to the decision makers to `"""' consider in connection with their decision. However, the City of Palm Desert gave public notice on May 23 and mailed May 22 to property owners within 300 feet that it intended to rely on an addendum on the previous EIR and on the Mitigated Negative Declaration of Coachella Valley Water District to the extent of the additional acreage to the east and the public was invited to inspect that document at the City offices. As a result of that process there were some letters of comment received which she would be addressing. Ms. Culbertson explained that the California Department of Fish and Game is the resource agency in our state that is responsible for the protection of the bighorn sheep. They have not been listed by the Federal Government as of this date. The State Department of Fish and Game has listed them as threatened under the California Endangered Species Act and they were a fully protected species in California. She thought it could be said that the Department of Fish and Game is the public trustee for the bighorn sheep regardless-of whether they are kept in a captive state or in a wild state. In her view they were the top source of information on the sheep in terms of regulating development around any bighorn sheep impacts. In 1990 and throughout the environmental impact report process, the Department of Fish and Game was consulted by the City and by her office to obtain their input and guidance as to the scope of the environmental studies and biological studies to be conducted and what their ultimate advice to the City was on the buffer. Through �""' not one, but three, letters the Department of Fish and Game stated at that time that a buffer of a minimum of 400 yards as measured from the 30-acre pen on the Bighorn Institute, a private operation on private property, would be adequate for these captive sheep. The Department of Fish and Game has sent the City another letter in response to the Initial Study and it was part of the commission packet. They reiterated that the 400-yard buffer was adequate and in the consideration of the buffer, a payment of 5750,000 to the City to be transferred to the Department of Fish and Game for the recovery and monitoring of bighorn sheep and various other mitigation measures that the Department of Fish and Game has provided to them for application to the project resulted in the 400-yard buffer and the project presented to the commission was adequate in mitigating all significant impacts in this area. She wanted to point out that the mitigation measures that the City was recommending should be applied tonight were more stringent than those that were applied in 1991 in many circumstances. The 400-yard buffer was the minimum buffer and that was not a big change from what was documented in the Environmental Impact Report as recommended by the Department of Fish and Game at the time. However, there were certain other mitigation measures for walls, fences, the restriction against domestic pets in the area southeast of Dead Indian Creek in the lower portion of the community, and many other measures that served to greatly restrict the operation of the property in an unusual way and in � 25 MINUTES PALM DESERT PLANNING COMMISSION JUNE 3, 1997 recognition of the important captive breeding operations at the Bighorn Institute. There was a second issue raised throughout the process in 1991 and it was raised again here. It was what the status was of the free range or wild bighorn sheep use of this property, the property within this project. In the 1991 EIR there was great debate on this and in the EIR they simply said that in an abundance of caution, because it was an EIR, they would conclude that it could conceivably be free range habitat and that it was mitigated and overridden. The Department of Fish and Game was again consulted on this and some sheep had been sighted in a 1993 study on the ridge line overlooking the area at the easterly Coachella Valley Water District property that Mr. Drell introduced the commission to. She said that yes, sheep walk in many places in the Coachella Valley. The Department of Fish and Game concurs that the mitigation provided by the buffer and the cash payment was adequate compensation for any postulated or actual use by the wild bighorn in that area and because of that their habitat, they concurred with the Department of Fish and Game, that it was an adequate treatment of this issue. Finally, between 1989 and 1991 there were substantial surveys of this property for desert tortoise. Desert tortoise was a state listed threatened and federally listed threatened species. Although there were burrows, there was no sign of tortoise except for a shell fragment. Even the U.S. Fish and Wildlife Service opined that there was very little possibility since there were very low densities of tortoises ever known in this historic portion of the range. Notwithstanding that the City, in an abundance of caution, applied a 100% coverage survey that is at protocol for the U.S. Fish and Wildlife Service to conduct a particular kind of survey on the property before any alteration was done to it. That survey would be conductsd prior to the onset of grading activities. However, it was reported to the City and to the Department of Fish and Game that a tortoise had been sighted and as a result the U.S. Geological Service National Biological Survey tortoise expert went out on the site with the Department of Fish and Game, herself, and another surveyor and examined select portions of the property. They did locate the tortoise and the tortoise that was found was inside of the 400-yard buffer. The 100% survey was still required as the U.S. Department of the Interior acknowledged and the City acknowledged that the mitigation stays in place and a construction fence would be erected inside the buffer in order to prevent the tortoise from traveling inadvertently into the construction area. The U.S. Fish and Wildlife Service would conduct a proceeding under the Federal Endangered Species Act with respect to this property and their determination results were unknown at this time by the City. However, the U.S. Fish and Wildlife Services has asked, and the City already had this mitigation measure from 1991 , that to the extent Federal or State permits issued after this approval impose additional mitigation measures, that the City agrees to impose those mitigation measures on the project. This was in her view innocuous and actually inescapable. The federal agency has 26 MINUTES PALM DESERT PLANNING COMMISSION JUNE 3, 1997 jurisdiction over the tortoise as does the Department of Fish and Game because �""" it was a listed species, however it was avoided at present the extent to which they know that there is a tortoise there is a void in the buffer zone. There was a dual reason for the buffer zone now and they would await the determination of the U.S. Fish and Wildlife Service for the actual disposition of the entire property. She said she couldn't speculate what that would be tonight, but she knew there were sufficient protections in the environmental documentation mitigation measures before the commission to insure that there is no irretrievable step taken with respect to this property until this determination is made. As Mr. Drell indicated, virtually all the attention on this project has focused on the bighorn, the size and nature of the buffer for the Bighorn Institute, the tortoise, and the identification of habitat for the wild bighorn. Under these circumstances the Department of Fish and Game was the public trustee for the sheep and their letter was extremely important and their recommendation and findings were extremely important because they above all are responsible for this species and she therefore didn't have any problem recommending to the commission that they accept the mitigation measures and the minor changes and suggestions that Fish and Game made, which had all been incorporated. That was the document before commission with the highlights and strikeouts. They were simply the mitigation measures presented to commission in the Expanded Initial Study Second Addendum as revised by the Department of Fish and Game letter. The Department �"`" representatives were present if the commission had any questions and on behalf of the City she stated that she and her company were very grateful for their assistance and said they had been indispensable. She said that concluded her presentation and asked for any questions. Chairpe�son Ferguson asked for confirmation that Ms. Culbertson was an independent environmental expert retained by the City and she didn't represent the developer or the opponents to the project if there were any. Ms. Culbertson stated that was correct. Chairperson Ferguson said he would be asking her the next question twice tonight. Based on Ms. Culbertson's review of the evidence as it stands right now, the documents before her, the various opinion letters received as recently as 5:00 p.m. tonight, if it was her opinion that the mitigation measures in place were sufficient to safeguard any potential threat to the bighorn sheep associated with the Canyons at Bighorn development. Ms. Culbertson replied that it was. Chairperson Ferguson opened the public hearing and asked that the developer/applicant speak first to explain the nature of the development, then those in favor, then those in opposition, and then a short rebuttal period for the applicant to address any concerns raised by the opposition. � 27 MINUTES PALM DESERT PLANNING COMMISSION JUNE 3, 1997 MS. KATHRYN THOMPSON, 19700 Fairchild Road, Suite 170, Irvine California, stated that they had a siide presentation. Ms. Thompson told commission that she really appreciated this opportunity to present this project to them and said that it was one of the finest projects she has been involved with and she has been in this business for about 30 years. She said that in addition to herself, the President of Winmar/Safeco Properties was present, Mr. Eddie Hendrickson; the Vice President, Mr. Larry Olson, from Safeco Properties; the President of Heartland, Mr. Warren Smith who is the General Manager of the current Mountains at Bighorn and who would be the Manager of the Canyons at Bighorn when the project is constructed was also present. She thought that most of the commissioners were probably familiar with Mr. Smith since he has been in the Coachella Valley for a long time and worked with the Sunrise Company. She indicated that they had a slide presentation and described the first slide as the location of the property which is at the southeasf corner of Highway 74 across from the Mountains at Bighorn. She stated that this is a very important landholding and it would complete, as stated earlier by Mr. Drell, the other half of the mountains. When this is completed, it would be one continuous project with two golf courses and very high quality. There would be 519 acres. The next slide showed what was originally approved in 1991 to review the background. This was the property that was Altamira and adjacent to it was a project called Sun Creek which was submitted and it was her understanding that it was never approved, however the EIR for both projects was certified at that time. Altamira had 344 acr.es, a total of 422 residences, for a 1 .23 density. The Sun Creek property had 123 acres with nine holes of golf, 230 residences with a density of 2.83. The two communities allowed for 654 units on 467 acres. A new vision was formed in 1996 when Winmar, a division of Safeco Insurance acquired both properties, as well as became a part in the Mountains at Bighorn. Instead of moving ahead according to the existing development entitlements, they decided they should take a fresh look at the market conditions, at the environmental concerns, traffic and the infrastructure for the project. Based on what they learned about the market's preference to more environmentally sensitive and less overall density, they began a new planning process for the land holdings within the parameters of the current City's approved EIR. She showed slides that demonstrated some of the desert landscaping and rocks that would be part of the planning for this project. She stated that the proposal was for a much lower level of density on 519 acres. Ms. Thompson then showed commission a slide showing the former approval with the buffer area highlighted and the site with the buffer included. She explained that the current project with 519 acres would have °� only 350 residences or .68 density compared to the 654 on the original 28 MINUTES PALM DESERT PLANNING COMMISSION JUNE 3, 1997 approval. The core of the new community was an 18-hole golf course �""'' designed by Tom Fazio which is slated to be the premier course in the desert, both in terms of the golf experience and the environmental suitability. She thought that Mr. Fazio was probably America's most sought after golf course architect. He was very selective on which projects he would do and it took more than seven months for them to persuade them that this project was an opportunity to extend his design capabilities in a project with the high quality that he demands. He designed two other courses in the desert at the Vintage and the Quarry and he usually would take only one or two courses west of the Mississippi since he is from the East Coast and this would be his first in the city of Palm Desert. They were very excited that he has selected Palm Desert for his next course. The course featured 98 acres of irrigated fairway within a larger 175-acre golf envelope of desert landscape. The course formed an open space framework allowing views from the community to both the floor-of the Coachella Valley and the surrounding layers of mountains. Surrounding the course was a series of individual neighborhoods with homesites and she stressed homesites because this would not be a grid layout of a subdivision. There would be 350 homesites with lots ranging from 7,000 square feet to more than one acre and in some cases several acres. Ms. Thompson showed slides of the concept view of the main entrance and a shot that was the inspiration for the main entry to the � Canyons and an artist rendering of that concept. The entry would be opposite Cahuilla Drive and would lead through a desert canyon landscape to the central clubhouse and individual neighborhoods. The neighborhoods were linked to the club and each other by a network of private roads and trails. The emergency access was located at the north and south boundaries and a tunnel for a golf course connecting the Mountains at Bighorn was located on the southwest corner. The plan contributed to the surrounding community and created a finished entry to the city from the south as well as completed the mirror image sister of the Mountain at Bighorn. At the west along Highway 74 the canyon's edge was designed to contribute and be part of the most important scenic corridor. The project would build an earthen berm land form, a natural landscape element rather than a conventional block wall. It would obscure the views of the development but would also allow the public to keep open the views to the mountains beyond. The berm would run the entire long frontage with a width of 100 feet from Highway 74 to the interior roads and would contain rock outcroppings and native planting. At the north and east a plan had been worked out with the neighbors to insure the layout. MR. STEVE WALKER, 200 Fortieth Avenue East in Seattle Washington, pointed out the location of Highway 74, the north side of the property at � 29 MINUTES PALM DESERT PLANNING COMMISSION JUNE 3, 1997 Cahuilla Hills Way, the Bighorn Institute and 400 yard buffer, the main driveway going into the community which they were calling Canyon Drive, the location of the clubhouse and Ironwood and stated that they worked with their neighbors (Ironwood, Indian Hills Condominiums, the Summit and different neighborhoods) to make sure they would be a good neighbor to them . and some of those neighbors were present today. He said they were working with Ironwood to make sure they were not obstructing their views and with the Indian Hills Way Association to try and determine how to vacate a street to make it a better situation since it was now a dead end street and people drive in there to party. Ms. Thompson stated that Mr. Walker was the President of Heartland and she said that there were several others present to answer technical questions. She noted that at the south, which there had been a lot of conversation about tonight and which has been a major controversy in the previous plan, additional protection had been incorporated with the 400-yard zone and no development has been established surrounding the northern boundary of the Bighorn Institute pens. The near quarter mile buffer of no development meant no golf, no roads, no homes and it resulted in an additional 57.3 acres of protection to the existing agreements with the Institute. She stressed that this was on top of over 5900,000 that the applicant has already paid to the Institute and was not asking to be repaid because the pens were not being moved. On top of that, they were agreeing to pay the additional 5750,000 payment to the City to help fund the Department of Fish and Game's ongoing research in recovery and continued augmentation of the bighorn sheep. The City in approving this new proposal has the opportunity to insure that this important landholding is finally built out as one single high quality very low density community in keeping with the well-established Bighorn community which the commission was very familiar with. Because the property was in the Redevelopment area of the city, the added benefit to the city would be the additional tax increment that would be available for the Agency. Heartland, Winmar, Safeco Properties as a single entity has both the financial strength and the corporate integrity to make this a reality. Approval of this plan would also end a long litigious land use chapter in the City's history by adopting a plan everyone in the city could be proud of. In the 30 years that she has developed projects in Southern California, she said she has never experienced a group of public agencies that have worked so hard to come up with a plan that all agree are within the best interests of the public and the environment. The plan was a model of cooperative "can do" spirit on behalf of all the parties who worked out this plan, which included the City of Palm Desert and she congratulated the City Manager, Mr. Drell, and Mr. Joy for 30 MINUTES PALM DESERT PLANNING COMMISSION JUNE 3, 1997 their long and exhaustive meetings that they have had over the last few �"` months to get where they are; The Army Corps of Engineer; Mr. Smith; the California Department of Fish and Game and she didn't think they could say enough about how much they have been involved and their good advice on this project and Mr. Taucher and Mr. Brennen were present tonight; the U.S. Department of Fish and Wildlife had been consulted and was involved in their meetings and they met with the Bureau of Land Management and were in the process of helping them with some of the issues they have outside this project; the Coachella Valley Water District; and she really appreciated the input they have had from the Bighorn Institute. They might not agree 100 percent, but she believed they all had rolled up their sleeves and have tried to make this a project that everyone could be proud of. Each entity had worked diligently to make a plan that accomplished each agency's objectives. She said that sometimes they seemed to be at odds with each other. That assured a-ce�tainty about the future of the important part of the City of Palm Desert and it preserved the requested buffer and other mitigation for the Bighorn Institute to continue the work with the bighorn sheep, which she applauded. Tonight they were respectfully requesting approval of the project and their team was present and she asked that questions be directed to her and she would introduce the appropriate party to answer the technical � questions. Commissioner Campbell asked Ms. Thompson about the 5900,000 given to the Bighorn Institute. Ms. Thompson explained the check was the first installment and some interest payments and believed the total was around $930,000. Commissioner Campbell asked if the payment was for the Institute to move the sheep pens. Ms. Thompson agreed and explained that it was part of the settlement agreement, but in light of where they were today, the applicant said they would not ask for the money back, and they would be giving them more money and the 400-yard buffer. Commissioner Campbell thought that was very generous. � Chairperson Ferguson asked if anyone wished to address the commission in FAVOR of the application. w�r 31 MINUTES PALM DESERT PLANNING COMMISSION JUNE 3, 1997 MR. FRANK TRANE, 72-840 Calle de la Siila in Ironwood Country Club, stated that he was delighted that the new development was going along in the first class and high class development style compared to what was approved in 1991 . He had been in touch with one of the principals of Winmar and they reached an agreement on their development next to the property that he and two other property owners in Ironwood own. They also reached agreement on what was to be done with the cul-de-sac at the end of Carriage Trail that goes through Ironwood. With those revisions that would no doubt come before staff in a form of a revised development plan, he was delighted that they were going ahead with the project. Chairperson Ferguson asked, as a former resident off of Carriage Trail, what the specific revisions were. Mr. Trane explained that they were twofold. One was that they have entered into an agreement to acquire the land under the turn around that was currently under Carriage Trail. What happened many years ago when the property at Ironwood was developed was that a turn around was put in, approved by the City, but the land under it was not made part of the subdivision, but the turn around was on the behalf of it. Consequently the '� land was sold to Altamira and the turn around still remains there and was of � great value to the property values of those homes along Carriage Trail. Through no fault of the new developers, the Carriage Trail residents wanted � the turn around.back so they have entered into an agreement to acquire the turn around land that would be under the turn around that is already existing on Carriage Trail. That was the end of the old Portola Road that used to go all the way through and he believed it would now have a crash gate on it to allow safety services to go through there. The other three properties that were the westernmost part of Ironwood were in Tract 20960. He owned one and Mr. Russ Burkett who was also present at the meeting owned one and another man named Larry Gale owned the other. They were the contiguous property owners of the new development from Ironwood and they have reached an agreement today with Heartland and that agreement involved : creating a view easement which is next to the wall that is the westernmost boundary of their property. He said the applicant could expand on that further if commission wished, but that was the only comment he had. . MR. GARY LYONS, 160 Menil Place in Bighorn, stated that he and his wife have been involved with Palm Desert for over 25 years and have been here in the valley for that amount of time and have come to realize that the best � community in the desert is Palm Desert and when they looked to where they 32 MINUTES PALM DESERT PLANNING COMMISSION JUNE 3, 1997 � wanted to build their home to enjoy their later years, it was obvious that the most quality product they could find was in Bighorn. He thought it was the unanimous opinion of all the homeowners in Bighorn to see the continued development of this project to it's fullest. Bighorn was one of the few developments throughout the desert that has maintained the desert quality and the environmental protections that they all enjoy and it has brought to Palm Desert a national and international reputation which he felt was both beneficial to both and hoped that the Commission would vote to proceed with the proposal as it had been presented. MR. JIM LOPEZ, 25 Covington Drive in Palm Desert, stated that he has been a proud resident of Palm Desert for the last 17 years and has been active in the community on several committees and he was in favor of the project tonight. He said that he has been sensitive, as well as the City has been sensitive,-as to the development of the community. Especially as it pertained not only to the environmental part, but to the aesthetics. He felt the project itself would hold a very positive nature in that it would be a great entrance to the city from the south. He was looking forward to the project being approved. � MR. TIM SKOGGIN, 73-102 Skyward Way in Palm Desert stated that he has been a resident of Palm Desert for 18 years and has lived in the cove for 17 and through the years they have seen several projects come and go and this one seemed to be the most "balanced and appropriate" project to date. It seemed to keep all parties happy, it seemed to address the density issues and several of the issues that have been brought up and was the best use of the area and would conclude that part of the city. He thought it seemed to be the right approach to take and looked forward to a positive response. MR. CHUCK STROTHERS, 73-425 EI Paseo, stated that his office has been in Palm Desert for 19 years and he has done subdivisions and commercial buildings, residences and developments throughout the valley. He said he didn't own property in Bighorn, he wasn't doing business at Bighorn, but he was present as a fellow developer and he understood the commitment to quality, planning, environmental issues and to quality of life that this team has put together for this project over a long period of time. They have a new enthusiasm up at Bighorn that they have all seen and there were new ownership and new management and they have experienced great success over the last year. The development team was well funded, well motivated, and he thought one that could endure difficult times that may reappear like they have endured over the last six years and he encouraged the commission � 33 MINUTES PALM DESERT PLANNING COMMISSION JUNE 3, 1997 to pass this project on with a favorable vote to the City Council because he didn't know what else they could do to make a better development out of this � piece of ground. MR. DAN POPPERS, publisher of Golf News Magazine, 73-280 EI Paseo in Palm Desert, stated that he was in favor of the project and wanted to point out that the designer, Tom Fazio, has a world recognition and fame for what he does and it brought tremendous pride to this community to have someone like that, a designer with that reputation that comes here and wanted to let the commission know that from his perspective they have been publishing since 1984, that this is the finest project that he has seen in Palm Desert. MR. KEN SMITH, 45-751 Manzo Road in Indian Wells, stated that he also owns residential property in Palm Desert and has lived in this community for nine years. � He felt this project was not only important for him and others in terms of what they were looking for within the next five or ten years and someone mentioned that it has not only brought recognition to the Palm Desert area, but also to the valley. He said it was so important to him that he brought his 13 year old son with him tonight so that he could hear what it was the Planning Commission was looking at, what it was they were doing, and his son would be entering high school next year and Mr. Smith was thinking in terms of what this would provide for his son and the community � and his son would hopefully make his home here in 15, 20 or 30 years down the road when he finishes college. He was looking forward to the commission's approval of this project. He said his son's name was Bradley. Chairperson Ferguson welcomed Bradley to the meeting. MR. YOHAN PERSLOW, 71-850 Jaguar Way in Cahuilla Hills, stated that he has been involved in about 100 golf courses all over the country and this project was extraordinary. His company worked a lot with environmental corps engineers all over the country and felt this was an extraordinary project that the city should be very proud of. Chairperson Ferguson asked if anyone wished to speak in OPPOSITION to the proposed project. MS. EMILY HEMPHILL, an attorney with the law firm of Selzer, Ealy, Hemphill, and Blasdel, stated that their offices were in Rancho Mirage, California. She indicated that she was at the meeting representing Guy Laliberte and Mario Pascucci, two individuals who in partnership own a � 34 MINUTES PALM DESERT PLANNING COMMISSION JUNE 3, 1997 triangular piece of property within the buffer zone. She said they were `�""' opposing the project at this time and were requesting that the city give further consideration to the conditions of approval as it affects their property for several reasons. First, they recognize the quality of the development that Bighorn has engaged in to date and didn't doubt that the quality of development would continue in that regard. They also fully expected that they indeed have made appropriate arrangements with the neighbors to the northeast and northwest. They didn't believe, however, that the consideration that had been given to the property that was owned by Mr. Laliberte and Mr. Pascucci had been adequate and in order to assure that they too were able to recognize the full economic viability of their property. As the buffer zone was currently drawn, essentially the economic use of their property was gone and they were unable to sell that property to a reasonable buyer given its existence within the buffer zone. While putting a condition within th� c�nditions of approval or a caveat within the conditions of approval saying that the City reserves the right to not impose that buffer zone on any third other than the folks from Bighorn, essentially no reasonable buyer would look at this, recognize the existence of the buffer zone and still proceed to purchase this property from her clients. Furthermore, the imposition of a condition within the conditions of approval that indicate that the applicant should negotiate within good faith to purchase this property which was � formerly called the Del Gagnon property they believed was not adequate to protect the interests of the current owners, Mr. Laliberte and Mr. Pascucci. Essentially their ability to develop the property was futile at this point because it was clear that from the environmental documents available for this project that this buffer zone was viewed as critical to the captive breeding program at the Bighorn Institute. While they did not take an issue with the work that the Bighorn Institute is doing, nonetheless they believed that placing this property in the buffer zone without any sure way to assure adequate compensation of fair market value essentially placed the burden on private property owners to serve the larger public good in an excessive way. They further felt that the requirement that Mr. Laliberte and Mr. Pascucci essentially come to the City of Palm Desert so that they could be turned down because of the existence of the buffer zone was essentially requiring them to expend funds, expend time and expend energy on an effort that would be futile. They believed that the conditions of approval on this project must more stringently provide that this property should be acquired for its fair market value and that that be accomplished prior to the project going forward. It was only in this way that they could assure that the fair market value and the adequate investment backed expectations that they had when they acquired this property in 1978, long before Bighorn came along, that it � 35 MINUTES PALM DESERT PLANNING COMMISSION JUNE 3, 1997 � _� could be achieved. She therefore asked the commission to modify the � conditions of approval to impose more stringent conditions that require the � project applicants to purchase the property for not less than its fair market value and to provide to the City and to the current owners of the property proof of that the fair market value and their willingness to purchase it prior to the project moving forward. Chairperson Ferguson asked Ms. Hemphill how many acres her client had. Ms. Hemphill replied approximately 12 acres. Chairperson Ferguson asked when Ms. Hemphill said fair market value if she was referring to post approval of this application or preapproval of this application. Ms. Hemphill stated that obviously approval of the Bighorn project has caused significant damage to the property's value because of the existence of the buffer zone and she contended that her clients would be entitled to the preapproval value. Chairperson Ferguson asked if their property was landlocked in any way. v he believed that there is an existin easement that � Ms. Hemphill replied that s 9 goes into the Bighorn area. (She asked someone in the audience if that was correct and they concurred.) Chairperson Ferguson asked if that was affected in any by the buffer zone or if there was restriction as to automobile access. Ms. Hemphill stated that the easement extends outside the buffer zone north into the project. Chairperson Ferguson asked why Ms. Hemphill believed that the legal requirement of good faith negotiations was inadequate to protect her clients. Ms. Hemphill indicated that essentially the only statement in the existing conditions of approval was that they must negotiate in good faith. There was nothing that said the City would assist her client in assuring that a good faith effort would be made. Under the way the condition was approved at the present time, any type of an offer could be made without proof of value being given in any way, shape or form and if that offer was not accepted by her client, the applicant could simply say they tried and it didn't work and that � 36 MINUTES PALM DESERT PLANNING COMMISSION JUNE 3, 1997 was too bad and they were free to move forward and in the meantime her �"" client was stuck with p�operty that essentially has lost all of its value. Chairperson Ferguson commented that by inserting the words "fair market value" she was simply providing a substitute for the words "good faith" which was . equally ambiguous. Ms. Hemphill stated that they also believed that the commission should be inserting something into the conditions of approval that placed the onus on the applicant in order to prove to the City that in fact fair market value and good faith was utilized. By utilizing the conditions of approval as they are stated now, the burden of proof was on her client to do that and her client was doing nothing with his project that requires mitigation, therefore they believed that the burden should be placed on the applicant in order to prove that those efforts have been made. Chairperson Ferguson asked if Ms. Hemphill had specific language that she wanted the commission to consider. Ms. Hemphill replied that she didn't have it written up, but she would be � happy to submit it to the commission in writing. Commissioner Jonathan said he would like to see if they could align responsibilities here. The restrictions that have been placed on the buffer zone were placed by various governmental agencies if he was correct. Federal agencies and state agencies. Ms. Hemphill said it was her understanding that the buffer zone is in response to comments provided by federal and state agencies and suggested that Mr. Drell could clarify that. Commissioner Jonathan noted that the application before commission was complying with those recommendations and what the commission was reviewing was in compliance with those recommendations. If Ms. Hemphill was seeking fair market value from the applicant, the development of that property was bound by the recommendations by those federal agencies. He asked what the fair market value was of undevelopable land and why Ms. Hemphill was attaching responsibility to the applicant in this application before commission. Ms. Hemphill stated that with respect to government regulation there were several cases and much case law on record that indicates that if government � 37 MINUTES PALM DESERT PLANNING COMMISSION JUNE 3, 1997 � regulation eliminates ali economic viability and all reasonable investment backed expectations on private property, then that qualifies as a taking that requires just compensation which is essentially equal to fair market value. At this point it appeared to her client that the applicant is the appropriate party to provide that compensation because it is the applicant's project that is essentially imposing the buffer zone on this particular property. Commissioner Jonathan asked if Ms. Hemphill would be prepared to continue ownership of the property without restrictions and "cast their lot" with Fish and Game to see if they would allow them to put in houses or offices oc hotels. Ms. Hemphill replied that they already knew that was futile. Commission Jonathan said that came back to his earlier question of why Ms. Hemphill was seeking redress from the applicant. The applicant would probably rather have a golf course there with multimillion dollar homes and homesites. He asked what the applicant had to do with Ms. Hemphill's problem. Ms. Hemphill stated that essentially the applicant has engaged in negotiations with these various different agencies and has settled on mitigation measures °; that are perfectly acceptable to them and in the process of all of this her � client was essentially kept out in the cold as though his property rights were of no consequence. Chairperson Ferguson asked if the Bighorn Institute had honored their previous settlement agreement if Ms. Hemphill's client's property would be in a buffer zone. Ms. Hemphill replied no. Chairperson Ferguson asked if Ms. Hemphill had considered filing suit against the Bighorn Institute as a third party beneficiary of that agreement. Ms. Hemphill said they would certainly discuss that with the client. Mr. Drell stated that he agreed with Commissioner Jonathan's comments. The condition for the creation of the buffer was not the choice of the applicant and it was negotiated with "a gun to their head". Therefore, it would not be his obligation to provide whatever just compensation might be necessary at some time in the future. Along the same lines, if this property had filed for an application first and the buffer was imposed, it would not have been their obligation to buy the � balance of the property within the buffer from The Canyons. The timing of the 38 MINUTES PALM DESERT PLANNING COMMISSION JUNE 3, 1997 ' application or who the applicants were had nothing to do with the creation or the �"` requirement under CEQA for the creation of this buffer. Secondly, as he was sure counsel was aware, there was a lawsuit filed by Mr. Gagnon when the buffer was originally imposed and in the settlement of that lawsuit agreed to by the owner of this property was that until such time as a request for development was proposed, there could not be any taking or inverse condemnation since there had been no denial of development rights. There has been no CEQA process on this property, so the process by which those cases that Ms. Hemphill has cited determined that an inverse condemnation has occurred is a process of filing for development with the City going through whatever process was necessary to determine what building rights exist and then a decision. That process had not yet occurred. Chairperson Ferguson concluded that what Mr. Drell was saying was that they need to exhaust their administrative rights; Ms. Hemphill was saying that they could see the liglit at the end of the tunnel. Mr. Drell stated that whether she sees it or not, it was required to occur. Ms. Culbertson added to Mr. Drell's point that under CEQA there was only an authority to mitigate if they have discretionary authority over the property at the time you mitigate. To the best of her knowledge and as Mr. Drell told commission, there were no discretionary applications before the City nor has there been a discretionary approval on this property before, so the � buffer didn't actually apply to this property at this time. Chairperson Ferguson noted that he was aware of the law in this area since he represented a client in a similar situation and he was not at all unsympathetic to the person who finds himself with no beneficial use of his property and was being told to sue the federal government. Ms. Hemphill stated that she would like to make a comment in reply to Mr. Drell. With all due respect, she begged to differ as to what exactly the settlement agreement said on the Del Gagnon litigation affecting this property. It merely said that her client would not be prejudiced in terms of future development; however, it was clear to any buyer in the marketplace if they looked at that property that they couldn't do anything with it. There is case law out there that says when it is clear that exhaustion of administrative remedies is a futile effort, it is not required. Chairperson Ferguson asked if anyone else wished to address the commission in opposition. MS. JOAN TAYLOR, representing the Sierra Club, 1800 South Sunrise Way in Palm Springs, stated that as indicated in her fax to the commission yesterday, the Sierra Club is opposed to this project. She felt the � 39 MINUTES PALM DESERT PLANNING COMMISSION JUNE 3, 1997 � � environmental review warrant was inadequate and was requesting a continuance and the preparation of a subsequent EIR. She stated that the review time has been extremely short, less than ten days. Therefore their comments might not be totally complete and they would reserve the right to make more. She pointed out that an Addendum was only legally proper for minor technical changes to a project. In this case the project would be more than 50 percent bigger than the former project that was reviewed by an EIR. In addition, there would be hillside development proposed which was not proposed before. In view of the statements made tonight, in particular the one that said the mitigations proposed now are more stringent than before, they took exception to that and believed they were less stringent. Formerly in the EIR it called out a minimum 400, and as large as a 600, acre buffer. Now it was a maximum 400 acre buffer. That was the crux of the matter. In sum, the project's impacts to peninsular bighorn sheep were more significant than they were before at a time when the continued existence of the peninsular bighorn sheep was more tenuous than ever before. Ms. Taylor stated that Mr. Joy told her tonight that two pages of the fax did not get transmitted yesterday and with the commission's indulgence she wanted to �ead them tonight so that the commission would know what it said. She said: "The Canyons at Bighorn proposes to develop 20 homes on a hillside � area of the project which has not been proposed for development before. � Development on these hillsides, if not some of the development in a portion of the alluvium, constitutes a take of habitat for an endangered species. The project also has p_otential impacts to endangered desert tortoise. The Addendum discusses these potential impacts, asserting that the tortoise occur within the buffer. The Addendum fails to indicate where within the buffer these tortoise occur. Close to the edge near the development? They don't know. What assurance is there that these tortoise will not range onto the proposed development area, or that they do not occur in that portion already? The Addendum either fails to answer these critical questions or alludes to past studies without producing information on the protocols used, the dates of the studies or providing the studies themselves, as an EIR would. The bottom line is, the fact that the project may affect an endangered species immediately triggers the requirement for an EIR so there can be adequate review." Chairperson Ferguson interrupted to inform Ms. Taylor that the two pages referred to by Mr. Joy he believed began two pages farther down from where she was at. Ms. Taylor said that her copy was from a reprint, not in a fax format, so she asked what the last paragraph was that they received. 40 MINUTES PALM DESERT PLANNING COMMISSION JUNE 3, 1997 � Chairperson Ferguson indicated it was the one that said the project mitigation is adequate. He believed it was second to the last page. Ms. Taylor said that she would just like to make a note about the tortoise. Promises to survey were not mitigation. That was legally inadequate as mitigation. She stated from the letter that: "Since the Addendum's information and analysis of impacts, particularly biological ones, is inadequate it is impossible to judge the adequacy of the mitigations proposed. As stated above, they vitiate even the ones proposed for Altamira. Another grave concern is the nature of the mitigation on page 17 for payment of 5750,000 to California Department of Fish and Game. This mitigation is contingent on the development not being legally challenged in court. This is not real mitigation; it is improper; it is illusory." She indicated that additionally, it was evident from the testimony tonight that the buffer zone was incomplete and has holes iri it. "Based on the above, it is clear that this is a substantially changed project occurring in a substantially changed circumstance with new information available that was not available before. All of which trigger the preparation of a new EIR. Moreover, the mitigation proposed in the former EIR is not being required. None of this has been adequately addressed in the current environmental review. As stated before, a subsequent EIR is needed � to provide the public and the decision makers with enough information and sufficient opportunity to review and comment so the City can be able to make an informed judgment on this very serious matter." She added that the findings in the Addendum were based largely on opinion and not on substantial evidence in the record, so similarly the Planning Commission findings based on the Addendum would also be flawed. Chairperson Ferguson stated that he wasn't sure that Ms. Taylor could reserve her right to add additional evidence. The commission had to vote on this tonight unless they continued the matter. Ms. Taylor said that they were requesting a continuance because there hadn't been enough time for review and comment. Chairperson Ferguson stated that if the commission votes on this matter tonight, her reservation in a legal sense would be null and void. He noted that she has appeal rights and she could raise new issues on an appeal. Ms. Taylor stated that was Chairperson Ferguson's opinion. � 41 MINUTES PALM DESERT PLANNING COMMISSION JUNE 3, 1997 Chairperson Ferguson concurred and asked where Ms. Taylor came up with the figure 50 percent larger than the previous project. If it was geographic or number of homesites. Ms. Taylor said it was number of acres. Chairperson Ferguson asked what it was in terms of residential units. Ms. Taylor said she basically hadn't broken it down that way, however, this was a greater than 50 percent larger project and was not a minor technical change. Chairperson Ferguson said that if they weren't physically putting homesites on the land, how it mattered what the difference in acreage was. Ms. Taylor said that now the development wrapped around the Bighorn Institute whose activities were more important than ever before and there were much greater impacts on the Institute. Chairperson Ferguson asked Ms. Taylor to submit a complete copy of her statement for the City's records. Ms. Taylor stated that she had the original and submitted it (attached hereto as Exhibit A). Chairperson Ferguson asked if anyone else wished to speak in opposition to the application. There was no one. He asked if the applicant's representative would like to offer a brief rebuttal. Ms. Thompson stated that in regard to the Laliberte property, they were conditioned to make•a good faith offer to buy the property. They did so last fall and that offer was turned down. She believed, based on the acquisition price for the Coachella Valley Water District property, that they made an offer that was substantially higher and she said they did try. Chairperson Ferguson closed the public hearing and invited comments from the commission. Commissioner Jonathan said that the legal matters and the purchase of property was not an issue for Planning Commission and thought it would ultimately be � resolved in another venue. With regards to the project and the application itself, 42 MINUTES PALM DESERT PLANNING COMMISSION JUNE 3, 1997 he has been on the commission since the start of this project and has seen the � �"` presentations from day one by the various parties and he thought the project kept getting better. He was very pleased with it and he would be ready to accept it as presented. He thought it would make a great addition to the City and felt it was a wonderful use of land that at some point would be developed in some way and some things that have actually been approved previously were so much more disruptive to the city and our environment than what is before the commission. He thought it was a win-win situation. Commissioner Fernandez agreed with Commissioner Jonathan. He thought they could be very proud of a project like this. The applicants put forward a lot of effort and he welcomed this project with open arms. Commissioner Campbell stated that she was in agreement with the other commissioners."�She felt that Winmar had done everything in their best power to satisfy all of their neighbors and this project has been going on for many years and she was in the audience when Mr. Hayhoe originally tried to solve the problems and she was in favor of the project. Chairperson Ferguson stated that he would like to address the question that he posed to Ms. Culbertson during staff comments. Based on any additional evidence "�` that was presented tonight, most notably half of page 5 and page 6 of the Sierra Club's written objections, if she was stilf of the same opinion that she was at the . beginning of the hearing that the mitigation measures currently in place in the application were sufficient to accommodate any potential hazard to the bighorn sheep associated with The Canyons at Bighorn project. Ms. Culbertson replied that she was. She hadn't had a chance to study this, but there were only three small paragraphs that were missing from what was faxed to the City. One of the paragraphs asked about the nature of the mitigation number 17 for the payment to be not owed if there is litigation. That is now litigation only by public agencies. The other part had been stricken in the conditions of approval. She pointed out that while it was absolutely true that under normal circumstances mitigation was not future studies, in this case there had been well over 560,000 of tortoise studies on this property plus a very recent survey by one of the leading, if not the leading, expert in desert tortoises and a federal government employee, in concert with the Department of Fish and Game, as purported in the record, and these were dispositive, while not dispositive for the federal government, they gave her a very comfortable feeling regarding the status of tortoise on the most likely areas of its location in the property ownership. Without permission of other property owners, there was no right to trespass onto their property to do studies, although she wanted to assure the commission that the 100 percent tortoise survey assured � 43 MINUTES PALM DESERT PLANNING COMMISSION JUNE 3, 1997 that no grading would proceed without that being completed and a disposition of that made. She said that she also wanted to point out some things that were brought up that were not in the letter. Their findings were based on complete and substantial evidence. She didn't know how anyone could reach the conclusion that they were based on opinion unless they were referring to the very expert opinion of the California Department of Fish and Game, the public trustee for the sheep, and in that case they were guilty. They were the public trustees for the sheep and were an organization dedicated to resource protection and have a large number of bighorn experts on their staff. She couldn't think of better evidence than that. She had heard nothing and had no reason to change her opinion as recommended to the City or Commission. Chairperson Ferguson congratulated Ms. Thompson on a wonderful presentation. The material submitted to the City was thorough, complete and everything that he needed to look at to evaluate the project, together with her presentation tonight. With respect to the environmental impact or potential environmental impact of this project, he was of the view that more than adequate protections to the environment exist. He said that at the risk of sounding glib, he thought this piece of land had been EIR'd to death. But that was to take nothing away from Ms. Taylor's comments. He realized that she was making her record tonight and was preserving her rights and the rights of her interest group in that regard, however, � he was entitled to his opinion. In regard to the 12-acre parcel, he believed that unfortunately the 12-acre parcel somehow got caught up in the middle of this and kind of concurred with Commissioner Jonathan that there was a host of remedies and he wasn't sure the applicant was one of them. He indicated his opinion as to others among the federal government, the Bighorn Institute, state government, and perhaps the City of Palm Desert. His only observation was that it was regrettable for the owner of land that has suddenly been stripped of its use for whatever reason and it was a difficult situation. However, he was not willing to entertain the condition that the applicant be required to acquire this property at fai� market value. At some point they were required to make a good faith attempt and Ms. Hemphill knew the legal definition of good faith and if she was unsatisfied that the applicant made a good faith attempt, presumably she could come back to the city. He said he knew this particular area of land intimately since he lived in Ironwood just off of Carriage Trail for the first four years he was in Palm Desert and he walked that area with his son frequently, almost every evening on nice nights, and he couldn't be more pleased with the development that was being proposed. He thought it would add an excellent completion to the development of south Palm Desert east of Highway 74 and he looked forward to watching it as it develops since he still lives in the cove area and he truly appreciated the time, attention, effort and detail that have gone into this application, not only from a planning 44 MINUTES PALM DESERT PLANNING COMMISSION JUNE 3, 1997 standpoint, but by the comments of the residents of the city, both those that live �""` appurtenant to the property and those that didn't. It was apparent that they did their homework and in his opinion they did a great job. Mr. Drell said that in that the City has some obligation to respond to specific criticisms of our environmental review process, for the record he wanted to have the environmental consultant respond to those specific issues raised by the representative of the Sierra Club. Chairperson Ferguson thought she had done that. Mr. Drell said she did it in a general sense, but he thought she needed to give a more expansive justification for her conclusion. Ms. Culbertson said that she knew the commission had taken this into consideration, but she wanted to call the commission's attention to the City prepared written response and the portions of the Sierra Club letter that they received yeste�day afternoon. Again, she would not dwell on matters she already addressed such as the time to review and comment. There was no specific time; it was over ten days and she understood there was a meeting with the City to discuss the documentation, although she was not present. There was consultation that was referred to in there that was attempted--in some cases it was successful and some cases it was not with various groups. The City's use of an Addendum � was completely proper. She felt that what was important to remember here was that there were two documents here. An Expanded Initial Study that conducts the rigorous analysis required under Section 21 166 of the California Environmental Quality Act #o determine if the evidence is still fresh and accurate. That is one part. The other part is the Addendum which makes the minor revisions. The document before the commission both goes through the test and makes the updates in consultation with the public agencies and whoever else would agree to consult with them when they were approached, as to those mitigation measures. The decline in the bighorn sheep was important. However, it was not caused by this project and it was going on at the time that this project EIR was originally certified, it was going on before that EIR was certified, and it is still going on. In spite of the substantial decline in real estate development over that period of time and it was just starting up now, because of the economy that decline has continued. There were many good people working on that decline, but as the letter from the Department of Fish and Game states, that money payment in addition to the buffer would go a long way to assisting them because everyone knew that money was the key impediment to bringing on any of these recovery programs. She felt the other points were covered in her presentation. Chairperson Ferguson pointed out that the Commission was entitled to rely on expert opinion such as that of Ms. Culbertson, Dr. Johnson, Dr. Carothers, � 45 MINUTES PALM DESERT PLANNING COMMISSION JUNE 3, 1997 � certainly the Department of Fish and Game as a governmental body, and those were expert opinions that carried weight, they were evidence, and they were substantial findings. He said he was not an environmental expert. He could look at the reports and weigh them, listen to Ms. Taylor read her letter and read the response and come up with his own independent opinion, which he has done, but to say that they couldn't elicit expert opinion and rely on it he felt was incorrect. He asked if there was a motion. Commissioner Jonathan stated that he would move to adopt the findings as modified by staff. Chairperson Ferguson asked how they were modified. Commissioner Jonathan said by testimony received, as well as Inventory of Applicable Revised Mitigation Measures. Action: Moved by Commissioner Jonathan, seconded by Commissioner Fernandez, approving the findings as presented by staff. Carried 4-0. Moved by Commissioner Jonathan, seconded by Commissioner Fernandez, adopting Planning Commission Resolution No. 181 1 , recommending to City Council approval of GPA 96-1, C/Z 96-7, Vesting TT 25296 Revision, Vesting TT 28575 and Second Addendum to FEIR SCH#91012061 as amended, subject to conditions. Carried 4-0. ' � IX. MISCELLANEOUS None. X. COMMITTEE MEETING UPDATES None. XI. COMMENTS Mr. Drell asked commission if at the July 1 meeting, Cal State San Bernardino could a presentation to the commission and asked if they wanted to have it before the regular meeting. Chairperson Ferguson said he would. Mr. Drell suggested a 5:30 p.m. dinner and study session in the Council Chamber at 6:00 p.m. Commissioner Jonathan stated that he would be out of the country. Chairperson Ferguson concurred. Mr. Drell noted that commission would receive a report on ' the presentation information. 46 MINUTES PALM DESERT PLANNING COMMISSION JUNE 3, 1997 � XI1. ADJOURNMENT Moved by Commissioner Campbell, seconded by Commissioner Fernandez, adjourning the meeting by minute motion. Motion Carried 4-0. The meeting was adjourned at 9:39 p.m. � , � ST PHEN . SMITH, Acting S cretary ATTEST: � JAMES ATO FER U ON, hairperson Palm D sert Planni ,'Com ission � /tm �,, � 47