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Home My WebLink About0703 MINUTES PALM DESERT PLANNING COMMISSION s TUESDAY - JULY 3, 2007 I. CALL TO ORDER Chairperson Campbell called the meeting to order at 6:00 p.m. If. PLEDGE OF ALLEGIANCE Commissioner Tanner led in the pledge of allegiance. III. ROLL CALL Members Present: Sonia Campbell, Chair Dave Tschopp, Vice Chair Connor Limont Mari Schmidt Van Tanner Members Absent: None Staff Present: Lauri Aylaian, Director of Community Development Dave Erwin, City Attorney Tony Bagato, Principal Planner Ryan Stendell, Associate Planner Mark Greenwood, Director of Public Works Bo Chen, City Engineer Tonya Monroe, Administrative Secretary IV. APPROVAL OF MINUTES Request for consideration of the June 19, 2007 meeting minutes. Action: Itwas moved by Commissioner Limont,seconded by Commissioner Tanner, approving the June 19, 2007 meeting minutes. Motion carried 5-0. V. SUMMARY OF COUNCIL ACTION Ms. Aylaian summarized pertinent June 28, 2007 City Council actions. MINUTES PALM DESERT PLANNING COMMISSION JULY 3 2007 VI. ORAL COMMUNICATIONS None. VII. CONSENT CALENDAR None. Vill. PUBLIC HEARINGS Anyone who challenges any hearing matter in court may be limited to raising only those issues he, she or someone else raised at the public hearing described herein, or in written correspondence delivered to the Planning Commission at, or prior to, the public hearing. A. Case Nos. TT 35271 and TT 35272, PALM DESERT GREENS ASSOCIATION, Applicant (Continued from March 6, March 20, April 7, May 15 and June 19, 2007) Request for approval of two tentative tract maps to subdivide 7.58-acres into 331 lots for property at 73-750 Country Club Drive, also more particularly described as APN's 620-272-014, 620-261-050, 620-251-039, 620-241-027, 620-094-026, 620- 082-035, 620-131-031, 620-141-001 and 620-151-034. Mr. Ryan Stendell explained that this item first appeared before Planning Commission on March 6, 2007. Since that time the Planning Commission allowed the applicant additional time to work with their neighbor on the possibility of coming to an agreement on a wall or landscaping solution between the two properties. He said the continuances gave staff plenty of time to take an in-depth look at this case. Mr. Stendell stated that both parties reported that they have been unable to resolve the internal issue. They have been meeting and trying to come to an agreement. An agreement still has not been met. During that time, staff came to the conclusion that there was not a reasonable nexus between the application and the condition for a wall between Suncrest Country Club and Palm Desert Greens. Staff's recommendation was to proceed with the original recommendation to move forward with approval of the subdivision. Mr. Stendell also requested 2 MINUTES PALM DESERT PLANNING COMMISSION JULY 3 2007 that the draft resolution be amended to delete Public Works condition of approval number two. Commissioner Limont had a question regarding the June 29, 2007letterfrom Mr. Gerhard Befeld. It brought up the original 1971 tract map and says, "provide for a 15-foot buffer zone consisting of a fence and screening landscaping maintained by the Palm Desert Greens Association, in lieu of a block wall..." She asked if that was an obligation that was set when Palm Desert Greens was constructed and if that was an existing obligation. Mr. Stendell answered that it was his understanding that the tract map was very vague and called for landscaping and fencing in that 15 feet. Landscaping is very subjective and doesn't say that it needs to be a row of oleander hedges, it just says landscaping and fencing. He deferred the semantics to the City Attorney, but staff and the City Attorney had reviewed this together and did not feel this subdivision would be going against the original approval. Commissioner Limont was concerned that if there is an obligation outstanding, that they not grant this subdivision until it has been taken care of. Mr. Erwin explained that when they originally looked at it, the condition was very vague. He did not go back and look at the original approval by the County to see the actual wording of the condition; this was what Mr. Befeld suggested was the wording. At this point he could not justify or find a nexus as part of this subdivision map to require the construction of a wall between the two properties. If this is a condition that should be enforced, they could look at that and see if it needs to be enforced, but they could not currently impose on this subdivision the construction of a wall between the two properties. Commissioner Limont said she didn'twant to do that, she wanted to make certain there isn't an existing obligation for that 15-foot buffer zone that's existing that needs to be addressed further. Mr. Erwin said it may well be a separate issue where they need to go back and look at the map and the original approvals and see if there is something they as a City should be enforcing. Commissioner Limont said she would be more comfortable with that before moving ahead. She said she realized this has been ongoing, but there is an outstanding obligation. Mr. Erwin thought this was something separate and apart from the approval. Commissioner Limont concurred. Mr. Erwin thought it was something that staff needs to look at and they need to get the original map and conditions, but it was separate from the current application. Commissioner Limont asked if Mr. Erwin was comfortable moving ahead with this as a separate issue. Mr. Erwin said yes. Commissioner Tschopp reiterated that there is no provision for any kind of screening or walls between this project and asked if later down the road they 3 MINUTES PALM DESERT PLANNING COMMISSION JULY 3 2007 thought some might be necessary and wanted that area maintained,whether it was a hedge or oleanders or so forth, if it would be too late to impose that kind of condition. Mr. Erwin said it was a matter of going back because the subdivision map is recorded. If that requirement is there, regardless of whether this is subdivided and this goes to a different property owner, it is a matter of record and they are subject to that condition and would be required to maintain that condition. Commissioner Tschopp asked if that would be the home owner or the home owner's association. Mr. Erwin said it could be either, whoever owns the property. Commissioner Tschopp commented that it would be difficult to enforce with that many members as opposed to one entity. Mr. Erwin said that was perhaps true. Commissioner Limont thought that was a really good point. Commissioner Tschopp asked if it could be conditioned that the home owner's association live up to the conditions/restrictions of the original mapping, putting the onus on them to maintain. Mr. Erwin said that would be a condition they would be imposing that he believed was already there. Commissioner Tschopp said the homeowner's association would be responsible for making sure that members/the owners maintain hedging if that was required. Mr. Ervin said that was his understanding of the condition, yes. Commissioner Limont asked if they could place that as a condition. Mr. Erwin said it was already a condition, but if they wished to reimpose it, he thought that would be fine. Chairperson Campbell said it was already there, so they didn't have to redo it. Mr. Erwin didn't believe they did, but they could if they wished. Commissioner Schmidt asked for clarification. She didn't see anything in writing that said the Portola Avenue easement was eliminated from the subdivision because of a future road widening. Mr. Stendell acknowledged it is a complicated issue. Staff removed condition numbertwo that stated that very clearly under Public Works. When this is a project that is getting ready to move forward, Public Works Department will do what they need to acquire that land. It should not be a condition of this map that they are not allowing a subdivision to occur because of a future road widening. Mr. Erwin stated that if the City wants that now, they might as well pay for it now and start it, because if they require this condition, he believed it is a taking and they have just bought the property. He did not believe it should be done in that manner. When they do have a project there, they will take whatever action is necessary to acquire the property. But to reserve it at this time for something that may occur in the future would create a taking by the City. Commissioner Schmidt asked if we did that at this time, it would be purchase via the Association. Mr. Erwin said assuming they were upset about it, and thought 4 MINUTES PALM DESERT PLANNING COMMISSION JULY 3 2007 they probably would be, they would probably file a demand for inverse condemnation on the property. Commissioner Schmidt indicated that on the other hand, if they approved this and someone purchases one or more of those easements along Portola and at a later time we decide we need that roadway, we would then be paying whoever purchased it or the Association if they did not purchase it. Mr. Erwin said that was correct. Commissioner Schmidt said she was assuming also that the purchase of this easement property that would be gained would be by an existing homeowneron that property. In otherwords, anyone couldn't go buy it. Mr. Stendell said that was correct; it was of value only to that specific property owner. In some cases the property was only 10- feet wide and the most was 16 feet wide. Commissioner Schmidt noted there was one 124 by 143 which is a pretty good size. Mr. Stendell said they are to be sold back to the individual property owners and were not big enough to do anything new on. Commissioner Tschopp asked if staff knew what the intent of the Palm Desert Greens Association would be if a homeowner decides not to buy the property directly behind them. Mr. Stendell deferred the question to the applicant. Commissioner Limont asked how they make certain thatthe barrier between Palm Desert Greens and Suncrest is acceptable to all parties. If they have 20 different homeowners on one side, how do they make sure there is continuity? Mr. Stendell said it was a case where it's an area only seen by two property owners. It is not visible from public right-of-way. In this situation, the City prefers to step back and let the property owners take care of it. It has only come up as a mechanism through this map. If Palm Desert had originally approved the project and it had certain conditions, the City would go back and enforce them, but in a situation like this, staff would prefer to let the land owners and the property owners handle it, especially when it involves interior land. Chairperson Campbell noted that the public hearing was still open and asked the applicant to address the Commission. MR. ROY CRON, President of the Palm Desert Greens Homeowners Association, 39-030 Cudy Circle in Palm Desert, said he was present to answer any questions. He added that the concern that there would be a hodge podge of walls on that perimeter would not take place. They have a strong architectural review committee,that chairman was 5 MINUTES PALM DESERT PLANNING COMMISSION JULY 3 2007 also present, and they were in the process of rewriting and restating those. As per their CC&R's, they would include that any walls that are placed on that perimeter/that easement would be of standard type construction that would best suit both their neighbor and themselves. They currently had brown slump stone. Again, this was an interior lot line, but they could guarantee what would take place. A homeowner couldn't build a wall without their approval. They can write those rules into their guidelines and into their restated rules and regulations. Chairperson Campbell pointed out that staff said that really had nothing to do with the application. Mr. Cron said he couldn't really hear anything that was said, the acoustics was terrible. Chairperson Campbell explained thatthe application before the Commission really had nothing to do with the fencing or fence screening, which was an interior problem. They were really just talking about the Portola wall. Mr. Cron reconfirmed that they were talking about the Portola easement. Chairperson Campbell concurred. Mr. Cron said he heard the City Attorney's point of view and what he thought he heard was that to not okay that portion of the map plan would not be in anyone's interest at this particular point. He asked if that was correct. Mr. Erwin said it wasn't exactly what he said, but was what he meant. Mr. Cron stated that they had no problem with either direction. If the City wished to pull the Portola side, they haven't taken a position on that at all. That property would be owned by the homeowner's association and they would deal with the City at that particular time. They would like to see it approved, only because it may or may not ever happen. It wasn't even in the future forecasting out to the year 2012. If the City does intend to take it, they should have done it sooner rather than later only because the people living on that particular easement portion and their realtors have to disclose if they want to sell their property, and it has a detrimental effect on the 6 MINUTES PALM DESERT PLANNING COMMISSION JULY 3 2007 property value. He asked that they approve the entire map plan, including the Portola easement. Commissioner Tschopp asked what the homeowner's association would do if a property owner doesn't wish to buy the property adjacent to them. Were there plans on how it will be maintained and what would be done? Mr. Cron said they can demand that they be maintained. They were not easy on the violators in their community. If a homeowner didn't buy that property, the association would still maintain it. Commissioner Schmidt asked if the property abutting Suncrest was deleted from the application, what impact that would have on their money raising. Mr. Cron said it would have a huge impact. He thought there were about 120 homes on that strip of property that borders Suncrest. It would have a serious effect on them. They need that map plan okayed. They worked with Mr. Befeld and would try to work with him. They tried to get him to the table. His last correspondence to them did have some interesting points in it and they certainly have asked him to continue discussions with them and they would be happy to work with him. They weren't ignoring them,they would do their best to take care of them. MS. MARIE BEFELD of Suncrest, 73-450 Country Club Drive, stated that one of the reasons they are in this right now is that she and Gerhard have been at Suncrest since 1982. Suncrest was built after Palm Desert Greens. In those days the County required chain link and oleanders rather than block walls because block walls would have scared a lot of developers away. So when they took over Suncrest, Palm Desert Greens had nice chain link fence and oleanders that looked great. Pretty soon, for whatever reason, they decided it was cheaperto letthe homeowners maintain the oleanders ratherthan the Association because it would save them money and somehow that got passed. Pretty soon some of the homeowners were pulling out the oleanders because they wanted to see the view or whatever, so at that time they were trying to fill Suncrest and didn't want to look at a bunch of back yards, so they took it upon themselves to plant on their side, and planted oleanders because they make a great barrier. Who would have known that they would get a disease and start to die? She felt they wouldn't be in this predicament if the Association had taken care of what they were supposed to do and not put it onto their home 7 MINUTES PALM DESERT PLANNING COMMISSION DULY 3 2007 owners. Meanwhile, they get complaints from Palm Desert Greens because Suncrest's oleanders are dying. They are taking them out, but technically they were supposed to be Palm Desert Greens' oleanders on their side in that 15 feet. She didn't know what else to say, but she did think it should be a condition. She didn't think it was fair for her residents to look at their back yards. If someone was to build a new project now, if Suncrest wasn't there and Palm Desert Greens went in, the City would require a wall and then whatever went in after that, the wall would be there. She said they weren't insisting on a wall, but something that is consistent and looks nice. It could be pyracantha, bougainvillea, etc. They were willing to work with Palm Desert Greens, but they feel they've maintained something Palm Desert Greens was supposed to maintain and they've maintained it for 15 years. Now they were complaining because Suncrest's plants were dying. Chairperson Campbell asked if anyone else wished to speak in FAVOR or OPPOSITION. There was no one and the public hearing was closed. Chairperson Campbell asked for Commission comments or action. Commissioner Limont said it was two separate issues. In other words, there was an issue with regard to the two associations and the border/perimeter. But the issue before them was really granting the tract map. She didn't have any hesitation as long as it was not going to obligate the City in any way, shape or form. If it's already a condition, great, otherwise she'd like to have it in there. Commissioner Tschopp thought the project should be approved because it would be for the common good of the residents of Palm Desert Greens. He also believed the original intent of the 1971 tract map filing should be enforced. He wished there was a way to handle Portola now because it would be much more difficult in the future, but since that's a nebulous date, they need to move forward at this time. Lastly, there are two nice pieces of property out there and he couldn't encourage the two home owners enough to get together for the benefit of everyone using the facilities on both sides of the fence to work it out. He knew they were trying to, but encouraged them to speed it up and do it. Commissioner Tanner agreed it is something that needs to be approved. He thought this was something that could have been taken care of long ago had there been representation. They tried to get it done two or three meetings 8 MINUTES PALM DESERT PLANNING COMMISSION JULY 3 2007 ago and it kept getting postponed. The issue between Palm Desert Greens and Suncrest couldn't be postponed any longer. Something had to be done. They need to work together as neighbors and find a way to make both sides happy. He thought they were moving in that right direction, especially if the tract map approved in 1971 so indicates and stipulates that there be fencing and some sort of a blocking between the two properties. He was in favor of approving the tract map, but also encouraged them to work a little bit quicker than what has been displayed over the last three months and get this done. Commissioner Schmidt had some deep concerns about this. It sounded great, grand and wonderful on the surface; however, she thought it was pretty clear that the boundary wall, fence or screening was really a requirement of Palm Desert Greens. The fact that Suncrest abuts to it now poses something she didn't think they had thought about. They were eliminating a minimum of 14 feet along a great periphery of Suncrest, which means they were bringing patios or whatever they decided to use that ground for if it is bought that much closer to Suncrest with no barrier/with no setback. She had problems with approving it and couldn't vote in favor of it because of the impact it has on a neighbor. Whether or not they share the cost of the wall or not was not an issue with her, it was the taking of ground for a private purpose that impacts a neighbor. That wasn't good legislation in her mind. Chairperson Campbell agreed with the other Commissioners. She thought the issue of the interior fencing was between the two clubs and asked for a motion. Action: It was moved by Commissioner Tanner, seconded by Commissioner Tschopp, adopting the findings as presented by staff. Motion carried 4-1 (Commissioner Schmidt voted no). It was moved by Commissioner Tanner, seconded by Commissioner Tschopp, adopting Planning Commission Resolution No. 2446 approving Case Nos. TT 35271 and TT 35272, subject to conditions as amended (deleting Public Works Condition No. 2). Motion carried 4-1 (Commissioner Schmidt voted no). B. Case No. CUP 07-07 - BEN SPERBER, Applicant Request for approval of a conditional use permit to allow a freestanding detached accessory structure/motor-home 9 MINUTES PALM DESERT PLANNING COMMISSION JULY 3 2007 garage in a rear yard setback 10 feet from the property line on property located at 77-770 Robin Road (APN: 637-320-045). Mr. Stendell reviewed the staff report and recommended approval. Commissioner Tschopp asked if staff heard anything from the adjacent Tucson homeowner. Mr. Stendell said he heard from one owner who was concerned about the proposal. After learning the location, his problem was solved and he no longer had an issue. That was the only contact. Commissioner Tschopp asked if RV's can be stored on a person's property in Palm Desert. Mr. Stendell said yes, as long as the property owner has approval. The application requires going through a formal process. If it was parked illegally, a property owner would likely get a visit from a code officer and that would trigger an application. Staff reviews the size of the lot to see if there is enough room, how it will be screened, and in this area there generally is enough room to house a structure. In most cases, they don't have that luxury or it isn't appropriate to store them, but on these larger lots they've had an opportunity to provide well-designed screening for RV's. Commissioner Schmidt asked if she heard correctly that this property owner also owns the lot to the north that would front onto Mountain View. Mr. Stendell said yes. The applicant could speak to his future plans, but he believed it was intended to stay within the family. The problem with the back property line is an issue of his. He had discussions with several of the neighbors in the area as well. He pointed out the location of one they had already approved and one they may or may not see a request on in the future. Commissioner Schmidt said there was an abundance of them already, perhaps a dozen or so. Mr. Stendell concurred. Commissioner Schmidt noted that they were large lots and carried them well. Commissioner Limont said it was her understanding that someone can have a conditional use permit, but their approval is if the setback is equal to the height of the building. It doesn't say the highest point in the building. Mr. Stendell explained that the precedent set for the area was to measure from the edge of the roofline. That's where the setback was measured from. There is no clear cut definition, but it was a determination made at one point and has been the precedent in the area. If they are ten feet high at the edge, they are ten feet from the property line. The theory is that as the roofline goes up, so does the distance. If the highest part of the roof was 13 feet,that part would be 13 feet away, and so on. That's how the interpretation had been made historically. Commissioner Limont felt the wording needed to be 10 MINUTES PALM DESERT PLANNING COMMISSION JULY 3 2007 changed because it says the height of the building, and the height of the building was going to be 18 feet. They start leading into assumptions and could get themselves into trouble. She knew there was a precedent and that they've done this before, but she thought these things needed to be cleaned up if this is what they mean. Mr. Stendell agreed that it leaves it to interpretation and that becomes the question--what is the interpretation. Commissioner Schmidt asked for clarification on the power lines. They haven't been buried. Mr. Stendell said they were still there. Commissioner Tanner noted that they were very hot lines and they would never see them buried. Commissioner Schmidt asked if they were high power lines. Mr. Stendell wasn't sure, but they checked with the Building Department about what could be built under them, what was happening with them, etc. His understanding is that Building & Safety is okay with building under them because they are staying. Commissioner Schmidt said she was amazed that they were still above ground with all those beautiful homes out there. Commissioner Schmidt said she has a little bit of trouble with the guest house being underneath the lines, but that was already checked out by staff. Mr. Stendell said that was a concern of one of the Public Works staff and Mr. Stendell checked with the Building Department, and under certain circumstances it could be done. Commissioner Schmidt noted that these require permits. Mr. Stendell said absolutely. Commissioner Schmidt asked if those had been pulled yet. Mr. Stendell said no, permits could not be pulled unless they received approval of the conditional use permit. Commissioner Schmidt asked for clarification that no construction should be going on. Mr. Stendell concurred. Anything going on would be without permits and at the applicant's risk. He was pretty confident there was nothing going on out there. There were no other questions. Chairperson Campbell opened the public hearing and asked the applicant to address the Commission. MR. BEN SPERBER, 77-770 Robin Road in Palm Desert, was present to answer any questions. Regarding the power lines, he said he has been working with Edison for 10 years on that situation. It would be about $60,000 to move just that one section, plus the other neighbor. They tried to compromise, but nothing could be done other than spending that kind of money. But they have set guidelines on height restrictions under a dwelling or building and they were good under their requirements. 11 MINUTES PALM DESERT PLANNING COMMISSION JULY 3 2007 Commissioner Schmidt noted that it also runs along the east boundary of his other lot. Mr. Sperber said they were on three lots: his and the two to the west, and it stops. Then it goes north and south. In the 1990's they upgraded that, right before the City incorporated that area, and they put it underground. He's been there 25 years. Commissioner Schmidt thought it was a shame the power lines were there. Mr. Sperber said he tried hard to get rid of them, but there was an issue with the developer to his east and that one pole feeds that whole development. It was a major situation. There were no other questions. Chairperson Campbell asked if anyone wished to speak in FAVOR or OPPOSITION to the application. There was no one and the public hearing was closed. Chairperson Campbell asked for Commission comments. Action: It was moved by Commissioner Tanner, seconded by Commissioner Schmidt, adopting the findings as presented by staff. Motion carried 4-1 (Commissioner Limont voted no). It was moved by Commissioner Tanner, seconded by Commissioner Schmidt, adopting Planning Commission Resolution No. 2447 approving Case No. CUP 07-07, subject to conditions. Motion carried 4-1 (Commissioner Limont voted no). C. Case No. DA 02-01 Amendment #1 - EAGLE 6.5 LLC, Applicant Request for a recommendation to City Council for approval of an amendment to a development agreement allowing the increase in number of fractional shares from 4 to 12 fractional interests per home within "Stone Eagle" located west of Homestead Road, Highway 74 and the Palm Valley Storm Channel. Ms. Aylaian indicated that in November of 2002 a development was approved called the Stone Eagle development. It is a golf course and dwelling units in the Cahuilla Hills in the south side of town. As part of that 12 MINUTES PALM DESERT PLANNING COMMISSION JULY 3 2007 project, a development agreement was approved. The development agreement allowed up to 16 dwelling units to be sold at the developer's sole discretion in units of up to quarter shares. That meant any single dwelling unit could be owned by four separate people who occupy it during separate periods of the year. The development has proceeded ahead. Many of the parcels have been sold. The developer still retains ownership of roughly 15 units. As of this point, they've asked to amend their development such that rather than selling the remaining units in quarter shares, they can sell them in up to 1/12 shares, which would allow up to 12 owners in a single property, each of whom would own the property for no more than a month. Ms. Aylaian said the recommendation before Commission is to approve the development agreement. That being said, with the development of Stone Eagle, there have been a number of environmental type issues that have developed and that have resulted in neighbors in the area complaining about different elements of the project. Those elements were being addressed outside of this and mostly deal with the built environment. There are problems and concerns regarding a perimeteraccess road,drainage into the two canyons that come down from that area, and regarding some aesthetic treatments.The proposed amendment to the development agreementwould not physically change anything in the built environment. It does not entitle more dwelling units, greater intensity, greater height or anything along those lines. It strictly addressed the ownership. Therefore, staff felt it appropriate to separate out this item and bring it to Planning Commission and asked for Planning Commission's review and approval, if appropriate. The applicant was present and would be able to answer questions. Ms. Aylaian pointed out that during their review, staff thought these were going to be sold so that a single owner could own 30 consecutive days. The amendment to the development agreement was prepared with that assumption. Staff subsequently learned that the applicant would like the flexibility to sell those 30 days so thatthey aren't consecutive. In otherwords, someone could buy two weeks in January and two weeks in July. That being said, it started to look, feel and smell just like a timeshare project, so staff included in the resolution the approval of the development agreement and noted before going to Council for approval, they would negotiate a fee that is typically charged to timeshare projects. The fee is handled on a case by case basis; it is a public facilities impact mitigation fee and they would negotiate the amount of that fee specific for this project with the applicant before it went to the City Council for approval. Chairperson Campbell asked for any questions of staff. 13 MINUTES PALM DESERT PLANNING COMMISSION JULY 3 2007 Commissioner Limont said she would recuse herself because she is in escrow on a piece of property that adjoins this property and left the room. Commissioner Schmidt asked if the units they were talking about were interspersed within the already sold units, or if they were a phase to the side somewhere. Ms. Aylaian thought they were dispersed, but deferred the question to the applicant to explain which ones he still owns and where they are physically located. Commissioner Schmidt was also curious about the present occupancy rate. She asked how many are sold and occupied. Ms. Aylaian clarified that they currently are entitled to sell up to 60 dwelling units. At this point they have only divided into 44 lots on which there could be 46 units, so 17 of the 46 are unsold, but as far as where they are located, the applicant could address that. When this was originally approved, Commissioner Tschopp indicated it was 60 homes with a maximum of four owners in any one home. Ms. Aylaian concurred. Commissioner Tschopp said it now was going to potentially go from 60 homes to potentially 720 different owners. He asked if there was anything in the original agreement or development that enticed the City or had the City approve it based on the low numbers of units. Ms. Aylaian said there was nothing that she was aware of; she was not involved in the project at the time, but had gone back and reviewed the file and was not aware of anything like that. Commissioner Tschopp said the low number of homes was a part of it, but questioned if the low number of owners was not an issue that she saw in the original data. Ms. Aylaian said no, not that she had seen any indication of. Commissioner Schmidt asked if there was language that addresses the resale of a home which has presently been sold and if they could fractionalize it on resale. She asked if that had been talked about. Ms. Aylaian said no, the agreement was between the applicant /developer and the City and did not involve any subsequent owner unless the City Attorney provided some correction. Mr. Erwin stated that normally once the unit is completed and sold,that satisfies the development agreement as far as that goes. Now with the 12 intervals in these number of units, once those are sold, they don't address resales. Commissioner Schmidt clarified that her question had to do with the existing units that have already been sold and if they come up for resale. If she owned one and wanted to sell it, could she sell it as a fractional ownership. Mr. Erwin said he thought not. If it is an individual owner that wants to break it into intervals, the owner would have to come back to the City to do that; it was his understanding that the ones sold now are 100% ownership. 14 MINUTES PALM DESERT PLANNING COMMISSION JULY 3 2007 Commissioner Tanner asked if a 25% owner on an original piece could then sell it to three fractionals. If there were four individuals who bought originally, which is what was originally presented, if 25% decided to put it on the market, could they sell to three fractionals. Mr. Erwin said no; they could sell their quarter, but not to three fractions. There were no otherquestions and Chairperson Campbell opened the public hearing and asked the applicant to address the Commission. MR. TOM CULLINAN, 74001 Reserve Drive in Indian Wells, said he would like to address the genesis of this request. What they've found at Stone Eagle is a lot of national and international members that are looking for a shorter period place to stay at the club when they play golf. They originally had 24, a group of three units, that they were going to put into quarter shares, which would have been about 12 particular spots available forthose national members. That would not be enough. They were finding that their national membership allows them to play 21 days of golf during the season and then was kind of unlimited during the summer, so they were kind of looking for a 21- day use pattern that would happen over different weeks, not over 21 straight days. They might go to the club for a week in November, a week in January and a week in April to use their 21 days. They were finding they need more availability for that. The word timeshare was brought up and he said they cringe when they hear it. They look at theirs as a club residence where they are encouraging club members to take advantage of this as opposed to going directly to the general public for a vacation home. This is really a place to stay at the club for club members. Even though they respect staff's view, they didn't believe the facilities use fee is appropriate because it really is a private residence club as opposed to "timeshare". They don't have a hotel associated with it, they aren't doing three days, two nights stays and giving a free tv to come and view the property. The marketing is done much differently and appeals to a different demographic then the "timeshare". He said theywouldn't increase the amount of traffic in the community. When a resident is not there, he would be able to come back and use the club, but generally they wouldn't, so there isn't increased traffic from the "national" member using the fraction. 15 MINUTES PALM DESERT PLANNING COMMISSION JULY 3 2007 Mr. Cullinan said they don't buy particular weeks. What happens is they go into a pool to where the first person on the list of 12 selects three weeks they would like to use,then go to the number two person, and go down the list and then go through and fulfill those weekly requests. Some they can't fulfill because they may want the same weeks, then they go to the second choice. The next year it rotates again so that the person who picked 12th now picks first, so there is a rotation there to where people can kind of every few years get the weeks they want and weren't just selling a particular week. They believed it would be an asset to their club. They were getting a great group of members, national members,that are joining from all around the country who use the restaurants here in town and shop and they think they are great additions to have in the city of Palm Desert, albeit they are not here full time. Commissioner Tanner asked if the fractional use, the 1/12th 30 days, is truly fractional. It can be a certain month and four weeks, or two weeks in December and two weeks in February. So it isn't 30 contiguous days, it is like he said on a rotating schedule. Mr. Cullinan said that was correct. There could be a situation where they had someone there two weeks in a row, but that would be unlikely. Commissioner Tanner asked what happens if the 30 days are not used by one of the fractionals. Does it go into a rental pool and who benefits from that if days weren't used? Mr. Cullinan said they were approaching it more as a club program to where if a person is not there, another member of that particular club could use it with an appropriate fee. If they went one step further, maybe another club member that's not part of the club residents club could use it with an appropriate fee. They would manage the operation through the club house. The general manager there would be responsible for implementing the program and there would be some type of moderate split with the owner, nothing like what they would see with the fractional 50/50. It would be more of an accommodation. It wasn't a money maker to run a rental management program for that. There was no financial gain to operate it at all. 16 MINUTES PALM DESERT PLANNING COMMISSION JULY 3 2007 Commissioner Tanner asked for confirmation that it wasn't a financial gain for either one of them; on the side of the club or the side of the fractional owner. Mr. Cullinan said no. Commissioner Tanner reiterated that it was just a convenience if someone wants it. Mr. Cullinan said they have a homeowner's association that has a relationship with a club to manage it and they pay a fee. He said it was almost a dead cost fee; there was not a profit built into that. Commissioner Schmidt asked where they were with some of the environmental concerns and the creek. Mr. Cullinan said that Ten Lennon, his partner in the project who was not present at the meeting, has been handling that end of it. He hated to speculate. He read the same material that the Planning Commission was provided and has a good understanding. He said that he and Ted have lived here a long time and they have always been good stewards on the developments they do and at the end of the day do the right thing. He believed they would be able to positively find a solution for that certain discussion and debate that is going on. Commissioner Schmidt asked if there were any ongoing get togethers going on presently. Mr. Cullinan knew there was a Director's meeting here at the City a few weeks back. He wasn't aware of when that next meeting would be and thought someone on staff might know. Ms.Aylaian introduced the City's Director of Public Works, Mark Greenwood, and Bo Chen, the new City Engineer. She said that Mr. Greenwood has really been heading that up and was in charge of putting together the Director's Hearing and could probably most appropriately address any questions on these issues. Chairperson Campbell noted that it really wasn't part of this application. Ms. Aylaian said that was correct. Chairperson Campbell indicated they should stick with the application before them. Chairperson Campbell asked if there were any other questions for the applicant. 17 MINUTES PALM DESERT PLANNING COMMISSION JULY 3 2007 Commissioner Tschopp asked if the potential was for 720 members of the club. Mr. Cullinan said when doing that math it sounded a little scary. He didn't believe the market was ever that deep. They did have about 27 of the homes sold. He believed the CC&R's would preclude a private individual from doing "club residents club'; it had to be the declarant, which is Stone Eagle, to set one of those up. They didn't believe the market is 720 deep, but they certainly believed it was more than 12 deep, which is what they can do now. They realized that people were going to come here less than they thought. It's a membership that comes in and they are members of other clubs all around the country that come in for a couple of weeks a year. When people start factoring in the cost of owning an entire home for two weeks of the year, it precludes them from making the jump, so they believed this was a good outlet for those residents who want to come and experience the desert for two to four weeks during the season and have a really great place to stay. Commissioner Tschopp asked if these units were segregated from the 20- some already sold. Mr. Cullinan said they have some blocks that they held back from marketing that they would envision these going on. There are some areas where most of the lots are sold on a particular street, but to go in and identify one unit in the middle of five to make that a "club residents unit" would probably be politically challenging. Their residents receive the same mailing. They only had one call because they know what they are doing would be the right thing for the club and forthe members thatwantto partake. In the community,they only have 43 home sites. Commissioner Tschopp asked if he anticipated any of the existing homeowners at some point in time wanting to fractionalize / timeshare. Mr. Cullinan didn't believe they were able to and that wasn't how they were looking at this. They were looking at it more as an opportunity for their members as opposed to a straight real estate play. He thought they would have to come to the City and didn't believe their CC&R's allow them to fractionalize or do a club residence. 18 MINUTES PALM DESERT PLANNING COMMISSION JULY 3 2007 Commissioner Tanner asked if going from four to 12 was a monetary issue for them to continue this project. Mr. Cullinan replied no. He said the dollars were the same whether they sell four for$500,000 apiece or 12 for$250,000 or whatever the math is, it kind of came out the same. But what they were finding is that when they do the one-fourth share, which is 13 weeks, the national membership is good for 21 days of golf during the year and they feel like they are buying too much time that they won't use and would ask if they can rent it. They didn't want to get into that rental program and would rather have another resident of the club stay there as part of this club residents program rather than to "rent it out"when they aren't there. So the 13 weeks don't fit with their membership program and that was the reason why. Chairperson Campbell pointed out in the staff report that staff viewed the proposed project as a timeshare. She asked if they had any problem paying the fees if this project was approved. Mr. Cullinan said yes, their views differ from staff's on their vision of what this project is. This isn't the Marriott Desert Springs--the Marriott Desert Springs is a beautiful communitythere and they do a greatjob, but that isn't what this is about. He said it seems like that is a little bit of a tough constraint to put on what they call a residents club where they have club members there and more of a fellowship situation as opposed to "strangers" coming in and out and renting them and putting them on vacation rental by owner. That wasn't what this was about.This isn't about buying a timeshare and getting a personal gain by renting it out to other people in high season. That he could see having a fee warranted, but that wasn't what this was about. Chairperson Campbell viewed it in a different way. If they have an enclosed private community and she was living in a home and the home next to her had people coming in and out every two weeks, some could be quiet, some could be partying all the time, and that wasn't what she was paying for her home right next to this other home that was going to have people going in and out of every two weeks. That was her objection in private communities. Mr. Cullinan said the only rebuttal is that a person could buy and rent it out and have the same situation there. They would have club members there that hopefully would treat the neighbors in the community with a higher standard and higher regard than just a 19 MINUTES PALM DESERT PLANNING COMMISSION JULY 3 2007 person coming in off the street. He thought with the rules, regulations, peer pressure and the security, it wouldn't be an issue. They have a pretty tough membership process to get in and usually those people were somewhat respectful of others. Chairperson Campbell noted that in a condo she owns and the condo next door, that's what they are doing. Mr. Cullinan could understand if they were out renting them and whoever has a deposit could rent and stay there. That wasn't what this was about and would really be controlled by the club members. They could lend to a son, daughter or family member and they couldn't really control that, and that happens in the summer. The kids come down and that's when they have challenges because they get the golf carts out and drive around. Generally speaking, the member knows when a guest is there and is totally responsible for them. They don't just walk away and then leave it up to the member to rectify the problem. So it wasn't just an in and out with the general public getting qualified to be there. There were no other questions for the applicant and Chairperson Campbell asked for testimony in FAVOR or OPPOSITION to the application. MR.TI M BARTLETT,73-382 Salt Cedar Street in Palm Desert, stated that he had two major objections. First, he wanted to clear up some of the statements made earlier. The developer wouldn't be here if there wasn't a monetary benefit. The increased traffic is a fact. Urban Land Institute, a well respected information guide, estimates a difference between four units and 12 units is a factor of five as far as usage. What happens when there are four owners is generally some of those four people know each other or are family members and they tend to care more about who else is in their residence when they aren't. If something is broken or something is damaged or someone acts inappropriately, there are just four people and they can figure it out. When that number becomes 12 people, it's a whole different ball game. The applicant says he won't be in the rental business, and he was sure he didn't want to be, but he could guarantee that's going to be part of this project. What happens is they change the nature of a private, high-end exclusive community into a timeshare. It smells like a timeshare and looks like a timeshare. Admittedly, it's a high-end 20 MINUTES PALM DESERT PLANNING COMMISSION JULY 3 2007 timeshare and very wealthy folks who would live here, but wealth doesn't always guarantee better behavior. He thought they really needed to look at this from a broader view. Mr. Bartlett said he was quite surprised to find out that there was any timeshare element in the project. He just learned that fairly recently himself. He read the EIR about six times and neverfound a statement that reflects anything to that, although he was sure it was in there. None of the staff reports mentioned it, although he was sure it was in there. He looked over this project many many times and hadn't seen any mention of it. The first objection was directly related to traffic. Again, traffic would increase and 12 members would use it a lot more than four members, they would care less about who stays there when they aren't there, they are going to care less about what's in there and not in there, and rental does become a big factor. It was just the nature of the beast. Whether high end or low end, that was going to happen. The second issue, which the Director of Planning did a good job of trying to steer them away from, is giving the developer another concession when he hasn't met his obligations or conditions of approval. Tom stated that they have been in the community and always do the right thing; without this project, he would tend to agree with him, but this was the only project he knew of other than Shadow Mountain that's been done in Palm Desert. Shadow Mountain has been done for quite some time. They have not done the right thing here. The project has been open three years for playing golf. They turned half of the property he owns in Cahuilla Hills adjacent to the project into a swamp. It was a dry canyon and now it is a swamp. There is a gutter of foul smelling,tainted, human waste contaminated waterthat runs continuously down his property and has forthree years. He could no longer even visit his property because his dog gets violently ill every time he goes there, so he can't go to his property any more. He was going to build his dream home there and now didn't know what he was going to do. For them to say they would do the right thing is clearly not the right thing unless they consider turning a dry canyon into a swamp doing the right thing. 21 MINUTES PALM DESERT PLANNING COMMISSION JULY 3 2007 He noted that one of the Commissioners asked what was happening and he understood the Planning Director's and staffs interest in separating the issue, but since the Council, when they approved the tract map for the residential project(and he didn't know if they had an opportunity to read the minutes of September 22, 2002), but the Council at that meeting were planning to delay the approval of the tract map until they got assurance from the developer that this water issue would be resolved and that was four years ago. The developer said yes, they would take care of the matter and at that time the Council approved the tract map. In his humble opinion, the Council made the connection between the existing development and future approval of future developments. Giving the developer another concession when he is violating the conditions of approval on the main project he thought was wrong. Mr. Bartlett said he had with him two pages of EIR, grading plan and governmental agency violations that he submitted, as well as a letter he sent to Mr. Hargreaves, who was acting as city attorney for the Director's Hearing. He said that might have some interest to them and said at the Director's Hearing, there were 12 items brought up; items the developer had failed to comply with. One of the items was the water issue and was probably the most significant. He thought it was significant for everyone in Palm Desert, not just the people who live adjacent to that property. Mosquito Vector Control has been there and identified it as a mosquito habitat. They all knew that West Nile Virus and e-coli are real dangers. They are found in the valley and identified. Mosquitos carry those diseases along with a lot of other scary diseases. Mosquitos have a 15-mile range, so he didn't think anyone in Palm Desert was safe. When they combine high nitrate water with human waste contamination with mosquitos, they were almost assured of an e-coli situation or West Nile situation. Those aren't always life-threatening and might not kill you, but they seem to impact the very young and very old. But people do die from those diseases. He didn't mean to say there would be a swarm of mosquitos killing everyone in Palm Desert and didn't believe that to be the case, but he thought it was very probable that mosquitos would carry one or both of those diseases. He indicated that currently the City is working with a water testing agency for the last three months since the last Director's Hearing. Apparently it would happen in the next month or so and they could 22 MINUTES PALM DESERT PLANNING COMMISSION JULY 3 2007 verifythe contaminated water issue, but they start with the abandoned well. CVWD closed down a well because of some detected contamination, because of human waste contamination, so they start with bad water. What they added to it he didn't know and they would find out. That's what was running down the creeks. Mr. Bartlett encouraged the Planning Commission not to approve this until they do the right thing. If this was purely not an economic consideration, then no harm no foul to them. That's what they were telling the Commission. It is not economic, so fine, they can wait. But for three years there has been human waste water running down his property. The developer made an attempt early on to stop the water. Essentially he put on two diapers in the canyon to try and trap the water. He did make an attempt. Those attempts failed and he has since kind of washed his hands of it and so far they have agreed to come down once a quarter(once every three months)to clean out the non-native vegetation. That's what they have agreed to so far, which to him was remarkable. If he was dumping human waste contaminated water on someone's property on a continuous basis 24- hours a day seven days a week and he proposed once a quarter to come down and send a suit to the dry cleaners, he couldn't make that proposal with a straight face. He thanked the Commission for their time and submitted his letters (see attached Exhibit A). MR. BILL CARVER, 72-275 Upper Way West, stated that they are on the other dry river bed from Tim's property, which was on the other river. To get back to the subject of the proposal, Mr. Carver said from his point of view, although his wife felt a little differently about it, but he thought that Ted has done a pretty good job of trying to overcome and mitigate some of the problems they are having with his development, and from what he sees, he has had a lot of problems on the other river, the other stream bed on the other side, which was a much more difficult problem than the problem the applicant was facing with them. Mr. Carver said this request has definitely disturbed him a little bit. He was aware of the fact that this would be a situation where there would be multiple ownerships;four. This in his mind was turning into a hotel. It was like a 60-room hotel and people would be coming in and out of there. Maybe the guy who takes it for 21 days is only going to take it for 10 days and have a friend come in for the other 10 days or overnight. He saw this as becoming a lot different project than a 23 MINUTES PALM DESERT PLANNING COMMISSION JULY 3 2007 residential project in a rural area. That concerned him. He didn't know the answer as far as how they could have this, but it seemed to him if they allow a quarter interest, they can then know they have some people who are interested in the property itself and not just the use. That's the one thing that had him concerned as neighbors. They weren't expecting to have a hotel next to their property. He thanked them. There was no one else requesting to speak. Chairperson Campbell asked if there were any rebuttal comments from the applicant. Mr. Cullinan said he wanted to speak to the point of use of property. As with any community down here, people could buy the particular unit and rent it out as much as they want. That happened at The Reserve, it happened at The Vintage and at The Lakes. It happened at some more than others. He shared a different opinion on the amount of use. He didn't think it would be substantially more,whether they had four that didn't use it and would probably want to put it up for rent. That was his rebuttal on that point. On doing the right thing, he thought everyone had a difference of opinion on what the right thing is. He said they always do their very best to find a solution that is feasible to do. Chairperson Campbell closed the public hearing and asked the Commission for comments. Commissioner Schmidt asked for the number of the quarter share units. Ms. Aylaian said right now they are entitled up to 60 quarter share units; however, at this point there are only 46 parcels and of those 17 remain unsold and 27 have whole ownership. Once they have been sold to a single owner, then as they heard earlier, they couldn't be sold as quarter shares. That would mean there are 17 quarter shares. Commissioner Tschopp asked if there was any code that defines the difference between timeshare and fractional ownership. Ms.Aylaian said our code treats fractional and timeshare ownership the same. It was kind of a nebulous terminology in the hospitality industry. The interval is kind of like a long period of time for timeshare. Some sources say that fractional ownership is no more than four fractional units per year. Some say fractional ownership is up to 12 units per year. She didn't think there was consistent terminology in the industry on that. 24 MINUTES PALM DESERT PLANNING COMMISSION JULY 3 2007 Commissioner Schmidt asked where in Ms.Aylaian's view the fee would kick in. Ms. Aylaian said that the way it is set up in the Zoning Ordinance, timeshare is permitted and defined as being associated with a 500 or greater room hotel and an 18-hole golf course. There was really only one hotel that met that criteria and that was Marriott Desert Springs which has timeshare with it. There were a number of other projects in the city that they refer to as timeshare, but they technically didn't meet the code definition of timeshare, but they operate like timeshare. Some have club residents ownership and the same type of terminology that they heard this evening. Some flat out call themselves timeshares. But the City ordinance only addresses "timeshare" and establishes an exact fee associated with timeshare if that timeshare is associated with a 500-room hotel. Commissioner Schmidt noted that Ms. Aylaian was saying in her view the proposed project is a timeshare. Ms. Aylaian said that when someone proposes a project that is not associated with a 500-room hotel that operates as a timeshare, they negotiate a different development agreement on a case by case basis specific for that project and establish fees that are appropriate for it, depending on the peculiarities of that case. So these fees are not the timeshare fees established in the ordinance, because it doesn't technically meet the definition of timeshare in our ordinance, but they have some other public facilities impact mitigation fee, or they have project amenity fees, one time access fees,annual access fees, and a host of different fees associated with it depending on what type of project it is. Commissioner Tanner had a two part question. Of the homes that have currently been sold by this development, how many have been sold as non- fractional. In other words, 100% of the dwelling is the owner's. Ms. Aylaian replied that all of the ones sold to date have been sold whole ownership; none are fractional. Commissioner Tanner said part two of that question was as a result of this, understanding that the whole owners know that potentially there are four owners to the house next door theoretically, he asked if those owners were notified that the applicant has come to the City and asked to increase the four to 12. He asked if they knew that this was a possibility and potential. He asked if there had been any feedback. Ms. Aylaian explained that the public noticing requirements forthis project required that all property owners within a certain distance of the property be notified. So the developer uses a title company to provide the names of all those owners. All of those people were notified and she only received one call from someone who reported that they did own property there and was wondering what was going on. 25 MINUTES PALM DESERT PLANNING COMMISSION JULY 3 2007 Commissioner Tanner asked for confirmation that there were no complaints or concerns about increasing them from four to 12. Ms. Aylaian said she didn't not hear of them, other than the one call she received that was more of an inquiry and confusion rather than a complaint. Commissioner Tschopp said he understood and liked the concept and thought it would be a great benefit to Palm Desert to bring more potential upscale individuals and families to the city who spend their dollars in the city and use other amenities, businesses, restaurants and so forth. He wasn't sure about the number of when something goes from a fractional ownership to a timeshare ownership, but 12 owners sounds much closer to timeshare than four. He could remember when this project first came before them. To him this is a very sensitive piece of property in a very sensitive area and the idea of a maximum of four owners would make it a very limited upscale development. Now they were talking 12 and in his mind they've crossed the line. Whether it was timeshare, fractional ownership, or hotel, they have crossed the line. He didn't feel like he had enough information at this point to approve it. He didn't know what the statistics say on the impact on traffic and usage and so forth. He didn't feel in some ways qualified to make that decision without that information. He knew the timeshare fee was to offset the additional costs, and he agreed with that, so would have to say it is definitely a timeshare. Most private clubs have restrictions on renting homes out, such as The Vintage, The Reserve, Toscana, Indian Ridge, so it wasn't like a homeowner could rent their home out for short periods of time without the club, when they find out, getting on the homeowner, so he took umbrage there. He believed that at some point in time other current owners will step forward who also want to subdivide or get a variance for their homes because it will be good money for them to do so. So at some point in time fully developed out they would have 60 homes up there with the majority being timeshare. The way it is being presented with the lack of information, he was not in favor of it at this point in time. Chairperson Campbell agreed. As she stated earlier with her condo, to go ahead and have four interests in one home is enough. People don't normally rent their homes forjust 30 days, it would be a year or a lease for longer than that, so she was not in favor of this application. Commissioner Tanner said the question he asked about single owners, the answer was, if he heard it correctly, was at this point they have no fractional owners there. He was inclined to leave it at four. The reason he was inclined to do that was because of their success in selling these to individual people certainly presented itself to them tonight. They have no fractional owners 26 MINUTES PALM DESERT PLANNING COMMISSION DULY 3 2007 there and to potentially increase to 12 would certainly be defeating the City of Palm Desert's purposes and maybe the applicant's, too. He was not in favor of increasing from four to 12 at this point. Commissioner Schmidt said some of her concerns were a little bit different. Since they have the staff report which includes the administrative hearing minutes that talks about all the environmental concerns and downstream human waste, she would really like to see some of that mitigated before they increase density. She was surprised that fractional ownership was allowed to begin with, but thatwas before she was on the Planning Commission. She thought with such an upscale development, they could handle that. She wasn't so sure about this. She thought it defeated the purpose of that hillside. So she was not in favor of it at this time. Commissioner Tschopp said he would make a motion for denial, but noted they didn't have the appropriate resolution in their packets. Ms. Aylaian stated that staff could return with a resolution of denial at the next meeting. Commissioner Tanner asked if they should leave the public hearing closed or reopen it. Chairperson Campbell said it was closed now and asked if staff was going to come back with a resolution of denial and open the public hearing again. Mr. Erwin stated that if their action is to deny it, they could close the public hearing now and take action on the resolution at their next meeting. They need not continue the public hearing. If they wished to hear further evidence or comments, then they should continue with the public hearing open. Chairperson Campbell stated that the public hearing has been closed, they would have a motion of denial and a resolution of denial for adoption at the next meeting. Before doing that, Commissioner Schmidt asked if the applicant could withdraw his proposal and go back to the drawing board before being denied. Chairperson Campbell said he could do that. Mr. Erwin further clarified that he could do that or request a continuance, or something else that the Commission would be willing to approve. Commissioner Tanner noted that this needed to be done tonight. Chairperson Campbell concurred, before they vote. Mr. Erwin thought the applicant would like to continue it with the public hearing open if the Commission was willing and not deny it tonight. Chairperson Campbell clarified that they were requesting a continuance to the next meeting on July 17 and to not have a resolution of denial. Commissioner Tschopp stated that he was only in favor of a continuance if there was going to be new or more revealing information. Otherwise, there 27 MINUTES PALM DESERT PLANNING COMMISSION JULY 3 2007 was a lot of information to gather. At this point in time he would stand by the decision that it should be denied and let the applicant bring additional information or do further study and come before the Commission and start the process over with more information. It wasn't a close vote here. He thought they needed some real information in order to change their minds at this time and saw no need to continue it. He was in favor of denying it and letting them restart the process. Chairperson Campbell agreed;there was no reason to continue the public hearing just to have the applicant come back with the same information. She asked for a motion. Action: It was moved by Commissioner Tschopp, seconded by Commissioner Tanner, by minute motion directing staff to prepare a resolution of denial for adoption at the next meeting (July 17, 2007). Motion carried 4-0-1 (with Commissioner Limont as an abstaining vote). (Commissioner Limont rejoined the meeting at this time.) IX. MISCELLANEOUS A. Discussion of conversion of required open space for development purposes for property located at 74-360 Magnesia Falls Drive. Ms. Aylaian explained that this project has been before the Planning Commission once. In a couple of different guises it has been before the Architectural Review Commission. It has also been before the Landscape Beautification Commission. Before dragging the applicant through yet one more iteration, staff wanted to present the concept to the Commission and have a little bit of discussion as to what is being suggested so they can either put the applicant out of his misery or encourage him to keep trying. Mr. Bagato stated that in a general sense this is a current application, but not a public hearing. He wanted to touch on some of the highlights on the concept of converting open space in projects, because while this is a current project, staff was anticipating the issue coming up again in the future on other projects. He showed a picture of the triangular-shaped property at Magnesia Falls and explained that it was part of the open space area for this residential development approved in 1987. It's a Planned Residential zone which 28 MINUTES PALM DESERT PLANNING COMMISSION JULY 3 2007 requires a 40% minimum open space area and on this particular project, the triangular lot was the open space. Last year Mr. Sipovac, along with the Association representative, proposed a project for five two-story units that staff supported at the time. The two- story design gave some benefits to site planning because the required square footage in two stories took up less land. That application was denied in part because of some opposition in the neighborhood. They are surrounded by one-story development and there was concern about access along the rear. Mr. Bagato stated that the applicant redesigned the project and he gave the Commission a preliminary site plan with four units, but they would be one story and the driveway would be off Magnesia Falls. Part of the problem with the design is the 12-foot landscape easement in the front of the project. The one-story design with the amount of hardscape in his opinion negatively impacted the site planning design. The driveway is approximately 40-feet wide and there is a lot of hardscape encroaching into the landscape easement and not a lot of landscaping. The way the garages are designed, cars in some of the units could back out, but access was problematic when cars are pulling out a long distance out of the far end garages if someone is parked outside the garage at the unit next to them. So there could be some circulation issues. Mr. Bagato said he has been looking at the application and ways to modify the design and maybe eliminate another unit. The other issue that came up is that this is an open space area that was part of the original approval. The project was approved at seven units per acre and that's what the density is for the project. To even put one home on this triangle lot would require a change of zone because the density is already at the maximum at seven units. He said he reviewed the original approval for the project and the staff report said there was 54% open space for this specific project. The triangle portion totaled 13% of that area, so even if it was developed, it would leave the main project at 41%. So even if they converted this area, the original approval would still comply with the 40% required by the Zoning Ordinance. With the current proposed density, the four units was approximately 6,000 square feet, plus another 1,000 or 2,000 square feet of hardscape. The total site area would still have 50% or more of open space for this new project. 29 MINUTES PALM DESERT PLANNING COMMISSION JULY 3 2007 From a staff standpoint, Mr. Bagato thought they would be able to meet the zone requirements for the open space requirement. His hesitation with this current design was not being in favor of it and would like to work on improving the design with the applicant, but the general discussion came up on the long-term policy on converting open space in general. Staff wanted to have that discussion with the Commission before making changes to this project. Commissioner Schmidt asked for the total square footage of the triangular- shaped property. Mr. Bagato said it is a little over 18,000 square feet. Commissioner Tanner asked how much of it was buildable. Mr. Bagato explained that under the PR zone, there wasn't a lot coverage maximum, theyjust had to maintain open space and code says 40% minimum. With the current design, there was over 50% of open space. Commissioner Tanner noted that the open space would be in the west end triangular portion. Mr. Bagato concurred. Commissioner Limont indicated that she attended the Landscape Beautification meeting and had both the City Manager and a Council member say they were going down a slippery slope if they start allowing conversion of open space. She thought to have a discussion forthe Planning Commission that warrants taking the time of staff and the Planning Commission they needed to have the facts. She said staff did a beautiful job of explaining, but there was a lot of information flying and the reality is they needed to know under what guide the original development was approved and they needed to look at it. She thought they also needed to be aware that there was a very, very strong warning from the City Manager and a Council person in that meeting to say that conversion of open space is not what Palm Desert wants to be doing, now or in the future. Open space is there specifically because that's what we want as a city and want to see. One of the thoughts is to look at our open space requirements and see if the open space we have for parks ends up under conservation so they don't have to worry about building. Herthought was they needed more facts before having this discussion. Commissioner Tschopp noted that Mr. Bagato's question had to do with open space; how much to keep and if they have latitude in sneaking up on that. If it was just a question of open space, no,they all want open space and the answer would be no. To him, there are always exceptions and this was kind of a difficult piece of property that right now is worthless to anybody. It isn't open space, it is just kind of there. Having said that, when they had the 30 MINUTES PALM DESERT PLANNING COMMISSION JULY 3 2007 other hearing, neighbors were opposed and there were concerns on different issues. There was an issue of having condo projects where there were a few owners who turned them into rental units and thought there was a whole kind of issue that went along with this open space. If it was just open space, the answer was no, they want open space. But for something like this, he would like to see some alternatives, but he didn't think it needed to be maxed out. He knew an applicant's idea would be to build as many units as they could possible squeeze on there, but said we should keep in mind that the original intent in 1987 was to have open space and let's try to preserve that and then clean up this area and make it more usable for the people who live around there and the people that own land. Chairperson Campbell said they didn't like the project before because it was too much. She felt the current plan still had too many units. When they see all the garages, there wouldn't be any grass there, it would all be cement. Once that turn is made, it was unsafe and accidents would happen. That piece of land didn't look like it needed anything on it. Commissioner Tschopp thought it needed something. Chairperson Campbell agreed that it needed to be beautified. Commissioner Schmidt asked for confirmation on the location since the sign on the project had fallen over and she couldn't read it. From her description, she asked if this ownership was part of the project she described and if those were rental units, or condos owned by people and then rented. Mr. Bagato said they are ownership. The lot in question is a common area lot currently owned by the homeowner's association. It was subdivided as a separate lot to maintained as a common area. He said it wasn't really landscaped and not done as a usable common area, it was more desert. He said some of the problems the HOA has had in maintaining it is people are dumping tires on it or just trash in general. Commissioner Schmidt asked if it was in front of a fence and wall. Mr. Bagato said it was next to the channel, but didn't go into the channel. He confirmed that the property was all up in front and the Assocation owns that property. Commissioner Schmidt asked if this was to help the Association treasury. Mr. Bagato said yes. Commissioner Schmidt asked for the purpose of the 10-foot City easement. Mr. Bagato explained that there was a required landscaped easement, and that was one of the reasons staff brought the issue before the Landscape Beautification because there was no real definition of how much landscaping is supposed to be in the landscape easement, but the amount of hardscape in the current design he thought negatively impacted that easement; it was supposed to be for landscaping with minimal hardscape. 31 MINUTES PALM DESERT PLANNING COMMISSION JULY 3 2007 Commissioner Schmidt thought what they were shown was too dense for that triangular piece of land. It was really an unbuildable site and that was probably why it was open space to begin with, because they didn't see fit to build on it then. She didn't see building here. She walked the site and thought it would be a nightmare with the cars backing out and two of the garages in the easement. It wasn't right in her opinion. Mr. Bagato asked if they could design something that still meets the code requirements for open space and benefits the area by enhancing what is currently there, if the applicant would have some kind of assurance that converting open space in general was not going to prohibit him from getting a project approved. The applicant had reservations about redesigning. Mr. Bagato had concerns with the current design and wasn't sure he would recommend approval, so he was looking at working with the applicant on modifying the design to something he thought would be more beneficial, a better site plan and work betterforthe site while still maintaining open space. Commissioner Schmidt asked if this tied in to the existing sewer and utility easements for the other projector if it would be a brand new deal. She asked if it had been reviewed environmentally for potential impacts on the flood plain out there. She had a lot of concerns. That is a very dense project to begin with and this didn't seem right to her under any configuration. She liked it the way it was as open space. Commissioner Tschopp thought the problem started in 1987 when theywent to open space and piled it up in this corner. Right not that's what it looked like to him--they needed open space and piled it in the corner because it was a difficult spot to build on. It didn't do anyone any good right now. They had the parks right across the street and there was open space out there, so he wasn't opposed personally if approached with some type of development that didn't try to maximize out that area, but actually took that piece of triangular land and made something of it that actually looked better. But don't try to maximize development. Number two, get the neighbors behind them and bring them in and show how they can take that open space, make it nice so it looks good, and he wouldn't be opposed to doing something better with it. Commissioner Tanner concurred with Commissioner Tschopp. The term density was used. They were being shown four units on a piece of property that looks like it maybe could handle one decent sized unit. He would certainly not entertain anything greater than two and maintaining a small amount of open area for what needs to be done to make it pretty. He said not to come back with four, or three, but maybe two. 32 MINUTES PALM DESERT PLANNING COMMISSION JULY 3 2007 Chairperson Campbell stated that staff had their views and would leave it up to them and the developer. Action: None. X. COMMITTEE MEETING UPDATES A. ART IN PUBLIC PLACES Chairperson Campbell reviewed items of interest from the last AIPP meeting. B. LANDSCAPE BEAUTIFICATION Commissioner Himont reported on the issues discussed at their last meeting. C. PROJECT AREA 4 COMMITTEE Commissioner Himont indicated that the next meeting would be in September, but noted that at a previous meeting affordable housing was brought up. She thought Palm Desert was doing a good job and believed our city provides the largest amount of affordable housing in the valley. It's mandated by the State, but they were right up there. D. PARKS & RECREATION Commissioner Tanner summarized key discussion items. XI. COMMENTS Commissioner Schmidt asked if Ms. Aylaian wished to talk about historic districts. Ms. Aylaian explained that this was a little bit of a follow-up conversation from the miscellaneous item they discussed at the previous meeting regarding infill projects in south Palm Desert. She stated that she would like to do additional research before discussing it further. She noted that Commissioner Schmidt had some suggestions of other ideas they might be able to investigate. Commissioner Schmidt said it was based on what they discussed last time in existing neighborhoods. 33 MINUTES PALM DESERT PLANNING COMMISSION JULY 3 2007 Commissioner Limont said she spent a couple of hours with K Kaufman and a photographer from the Desert Sun going around looking at the neighborhoods and the old neighborhoods. She said the photographer was wonderful and he loved the old neighborhoods and was amazed. As possibly another direction to staff, Commissioner Limont noted that they don't have as much helicopter traffic as they do during season and she thought it was an excellent time to come up with, unless the City Attorney said otherwise, to forbid or update landings at Bighorn. Ms. Aylaian asked if she was suggesting a proposed amendment to the Zoning Ordinance to specifically prohibit helicopters. Right now we don't permit helicopters any where, but it wasn't called out. She asked if Commissioner Limont was asking that we would specifically prohibit them. Commissioner Schmidt asked if that was under the City's purview or if it was an aviation issue. Ms. Aylaian indicated that the City doesn't govern air space, the FAA does, but if they look at the actual landing on the ground and look at it as a land use issue, they might be able to address it and prohibit it from residential zones. Commissioner Limont thought it would avoid problems with large areas that could be landed upon in Bighorn, and if they could have an ordinance that prohibits that, that would be great. Commissioner Schmidt noted that one problem is if they fly over the reserve and bighorn sheep. Commissioner Limont clarified that she was specifically talking about landing and would let the FAA worry about air space. Ms. Aylaian thought that if they were prohibited from landing in south Palm Desert, they might not be flying over the reserve in the first place. Commissioner Tschopp said he would be really careful about involving the press early on in things they are doing. He didn't think it was a good precedent to set and really cautioned against doing that until the Planning Commission and staff has had a chance to review issues. He didn't think they should air issues and get the paper all fired up on something until they've had all the facts and have been able to review them. He was vehemently opposed to doing it the way it was being done. Commissioner Limont indicated that the press was present for the meeting and called to ask what neighborhoods she was talking about and she took them to those neighborhoods. Commissioner Tschopp said he understood, but thought it was putting the cart before the horse. Knowing how certain publications work, it was not a good precedent they want to set and she should be careful. If that happened to him, he would probably defer it to the Chair and the Chair could talk with staff and go from there. That was his opinion. 34 MINUTES PALM DESERT PLANNING COMMISSION _ JULY 3, 2007 Chairperson Campbell noted that otherwise it could get into the newspaper before they know anything about it. Commissioner Tschopp also said they shouldn't form an opinion that doesn't have all the facts and don't want to move forward on it, and it puts undue pressure on everyone. Commissioner Schmidt said the paper might put a spin on it that wasn't desired. Commissioner Tschopp also complimented Ms. Aylaian and staff. He thought they were doing a good job. She is a new director with new commissioners and thought everyone was doing a great job. Ms. Aylaian thanked him and thanked staff for bailing her out over the last couple of months because they've been short staffed and short handed and have really helped. She also apologized to the Public Works staff; she thought they would be done by 7:00 p.m. Chairperson Campbell noted that the next meeting would be July 17 and asked for a motion to adjourn. XII. ADJOURNMENT Itwas moved by Commissioner Tanner,seconded by Chairperson Campbell, adjourning the meeting. Motion carried 5-0. The meeting was adjourned at 8:00 p.m. AURI Secretary ` ATTEST: eu �� )L-( SONIA M. CAMPBELL, Chair Palm Desert Planning Commission AM 35 TRB May 17, 2007 EXHIBIT A Robert Hargreaves Recel W at PWnnkV CORM Acting Hearing Officer, Assistant City Attorney Dabs„,'f,11eA14 Cwtfa '�. and All City of Palm Desert e 73-510 Fred Waring Drive Palm Desert, CA 92260-2578 Re: Stone Eagle Director's Hearing Report Rebuttal Dear Mr. Hargreaves: Thank you for officiating the Director's Hearing. Often a fresh view of the facts concerning a controversy by a new parry can result in a just resolution. As the Assistant City Attorney I imagine you are representing the will of the City as defined by its codes, ordinances, statues, and general and specific plans. Furthermore, I would expect that you or other staff members will insure that the conditions of approval of a project are fulfilled. As stated in the report the purpose of this hearing is to evaluate the results of mitigation measures and determine compliance with the project EIR. I understand that once you hear the evidence you are to make a written recommendation to the Director of Public Works who will make the final determination. Unfortunately, the only "evidence" offered in the Director's Hearing Report is the "testimony" of a number of consultants. While I acknowledge that the City has and will likely continue to employee these same consultants for various projects, in this case, none of them were contracted by the City. All of the consultants were paid by the developer and consequently are biased. We were led to believe that the consultants were hired by the City, in fact Homer Croy; Acting Director during Mark Greenwoods absence during sick leave confirmed this to me in no uncertain terms. Consultants by their very nature offer expert advice to confirm what you want them to confirm. Asking a consultant to review compliance with his own project is like asking an Architect to do his own plan check and final inspection. Interestingly, very little of the evidence provided by the surrounding property owners has been considered. Please allow me this opportunity to offer my rebuttal to the information contained in the report. 1. Runoff into Bruce Creek The developer has done an exceptional job trying to charge the residents of Cahuilla Hills with contributing to the water in the creek. In fact, they do, some water does seep into the creek. There are thirty individuals that reside in eleven homes and five vacant lots with irrigation that can possibly contribute to the creek. CVWD estimates that on average a person consumes 100 gallons per day. If we then add for example 400 gallons per day for the five irrigated lots we get a total of 5,000 gallons per day, assuming no loss to evaporation and percolation which are a requirement of the County septic systems. Conversely the golf course irrigation is somewhere between 1,000,000 and 1 - r; �R?B 2,000,000 gallons per day. Due to the undulating topography I'll bet it is even higher. Anyone who witnessed the earth moving could confirm that all lose or fractured decomposed granite was scraped off the mountain, (with an enormous amount of additional blasting required), then pulverized to pea gravel and then spread over the entire turf area to a depth of six inches. Consequently the turf, which by its very nature only survives in well draining soil, rests on six inches of pea gravel which lies on solid granite. It is similar to a bald man's toupee, in a shower his scalp will get wet, but most of the water simply runs off. Don't let the developer fool you, this came as no surprise. One merely has to inspect the golf course and see that the holes drain right into the two creeks mentioned. In fact, actual portions of Bruce Creek have been filled in with twenty or more feet in some areas, toped with turf; consequently portions of the creek are directly irrigated. In other areas drainage pipe extends past their property line to convey water to the creek. No effort has been made to control the surface or subsurface runoff, even though the EIR clearly warns of its eventuality and in fact recommends further study, which was never performed. Earth Systems informed us at the very first meeting that irrigation water runoff was specifically excluded from their contract. The plastic lining "diaper" that was installed in Bruce Creek was affixed with hydraulic cement. By doing so, back pressure drove the subsurface water to seek a new path of least resistance which coincidentally made it enter the creek at an adjoining branch of the creek appearing like it was coming from existing residences. Except for during and immediately after rain, the diaper has been dry. It is completely ineffective. The statement that the sophisticated irrigation management system minimizes runoff to the greatest extent possible is also false. The turf is irrigated with long intervals which creates the greatest amount of runoff. Stone Eagle's golf course irrigation has turned downstream portions of two normally dry desert canyons, Bruce & Ramon, into wetlands complete with harmful algae, non-native vegetation and insects, of most concern, ideal disease carrying mosquito breeding habitat. The stagnate and low flow algae covered surface water in both canyons combined extends over a mile in length and provides ideal habitat for breeding mosquito's. The high nitrate, human waste contaminated water, Stone Eagle uses for irrigation, nearly insures that some mosquitoes will carry E. coli bacteria and the West Nile Virus. As you may know, these conditions can be life threatening, especially to mature individuals, with just one bite from a contaminated mosquito. With a normal range of five miles, no one in Palm Desert is safe. The statement that the net result is no harm to the environment couldn't be further from the truth. I no longer enjoy my property. My dog gets violently ill every time we enter the canyon. She has learned to avoid drinking the water; however, she still gets poisoned by the plant material thriving in the contaminated water. The only water test presented, which the Director and the developer tried to imply was acceptable was from the Fruit Grower's Firm which identified the water as good for growing Bermuda grass. It was no surprise. Human waste contaminated water is good for growing just about anything. 2 ,.. TRB The recommendations offered are ludicrous. A large portion of my property is continuously contaminated with foul water which creates algae, weed and insect proliferation. Offering to clean it up every quarter is an outrage. The City Council was aware of this condition when Stone Eagle gained approval of their residential tract map. In fact, at the City Council Meeting of September 22, 2006, see pages 17 through 19, they prudently addressed the problem and diligently gained the developers assurance that the problem would be solved. Surprisingly at an earlier council meeting they forgave a $1,000,000 drainage fee because presumably they were led to believe that the developer would be making $1,300,000 worth of improvements to Bruce and Ramon Creeks to control drainage. In fact, the funds were used to construct scenic water features for the aesthetic benefit of future residents of Stone Eagle. 2. Golf Course Perimeter Fencing and Road The perimeter road is not shown on any plans, nor mentioned in the EIR. Portions of the road which currently led to nowhere perform no function and yet have been substantially improved. In fact, they are ready for paving. The portion that concerns us most is adjacent to the driving range and travels westerly to the large acreage between the conservancy land and the golf course ideal for residential development. I believe that members of staff and other City officials are allowing this unpermitted road to remain knowing the application for additional residential development is forthcoming. One merely has to inspect the developed condition of this roadway to confirm ulterior motives; as I pointed out in a letter to the developer confirming his commencement of grading five months prior to receiving the grading permit. The cart path was designed to convey emergency vehicles, as well as other vehicular access and equipment. Fish & Game has approved welded wire fabric fence in every City in the valley, chain link is not their preference nor is it allowed in the City of Palm Desert. 3. Access to Adjacent Properties No comment. 4. Maintenance of Debris basin Eliminating the low-flow bypass of the Debris basin has nothing to do with disturbing the surrounding terrain, since it has already been disturbed. It will over time however, prevent the natural flow of sand from replenishing the sand blown out of the canyon resulting in the loss of all vegetation. Allowing the developer to pump water out of the basin at his leisure will insure failure based on his performance to date. 5. Temporary Equipment Pad This pad is also absent from any plans including the grading plan, even though large quantities of earth were moved. 1 have been informed that it is to be used as a sod and tree farm, none of which were even contemplated in the EIR. Interestingly there is no landscape plan, a basic requirement for every development. 3 TIRB 6. Golf Course Exceeded Allowed Acreage of Turf If in fact that is true, no comment. 7_ Water Source For Golf Course Irrigation If the EIR contains mandates that staff later determines is unnecessary and wasteful what good is it? 8. Snack Bar Once again there is mention of an open air pavilion in the EIR; however, it became their fully conditioned secondary clubhouse complete with a full kitchen, which is not mentioned in the EIR. There is no mention of the snack bar nor is it shown on any approved plans. 9. Maintenance Building Buildings require ARC approval. Metal buildings are prohibited in Palm Desert. Once again a direct violation of the EIR. 10.Comfort Station The EIR clearly states that the comfort stations be self contained not on septic and have natural materials not stucco as they are constructed. 11.Residential Pads Palm Desert's Hillside ordinance, in place at the time clearly states:" Policy 1: In order to maintain the natural contours of the hillsides, developments shall be designed as to require minimal grading and avoid a padding or staircase effect as a result of extensive cut and fill slopes" 12.Archeological Sites The EIR clearly calls for three sites to be investigated further. They were later destroyed without investigation. I believe that the City has not acted in good faith, has supported developer claims knowing they are false, has delayed taking any action until ideally suited for the developer's interest, has conspired with the developer for future development, has gifted the developer with unusual practices and has knowingly disseminated false information. Furthermore, I believe the City has failed to enforce the conditions placed on the project and more specifically the Palm Desert Charter and Municipal Code, the Penal Code, the General Plan, the West Hills Specific Plan and the conditions of approval including the EIR. Following is some of the Municipal Code and Penal Code Violations. The violations of the General Plan, the West Hills Specific Plan and the conditions of approval including the EIR are too numerous to include herewith, however, they have been documented in previous correspondence. 4 Palm Desert Municipal Code: 8.20.020 Unlawful property nuisances. F. Land graded without an appropriate city permit which causes erosion, subsidence or surface water drainage problems of such magnitude as to be injurious or potentially injurious to the public health, safety and welfare or to be injurious or potentially injurious to adjacent properties; J. Any swimming pool, spa, pond, fountain or other body of water which is, may become, or which has become polluted, stagnant, a breeding place for insects or otherwise hazardous, odorous or unsightly; M. Premises so maintained as to cause the accumulation of polluted or stagnant water when such water causes a hazardous or unhealthy condition, breeding areas for insects, or erosion of foundation walls or soil; N. Maintenance of property so out of harmony or conformity with the maintenance standards of adjacent properties as to interfere with the reasonable enjoyment of property by neighbors, and depreciate the aesthetic and property values of surrounding property; R. The substantial lack of maintenance of grounds, landscape, shrubs, plants or vegetation within the city which are viewable by the general public from a public right-of- way or viewable from neighboring properties such that the property values of surrounding properties are reduced or such that the aesthetics of surrounding properties are detrimentally affected; 10. Dead, decayed, diseased or hazardous trees, hedges, weeds, shrubs and overgrown vegetation, cultivated or uncultivated, which is likely to harbor rats, vermin or constitute an unsightly appearance, nuisance, fire hazard, or that is detrimental to neighboring properties or property values, 11. Refuse and waste matter defined in this chapter, which, by reason of its location or character, is unsightly and interferes with the reasonable enjoyment of property by neighbors, detrimentally affects property values in the surrounding neighborhood, or which would materially hamper or interfere with the prevention or suppression of fire upon the premises. (Ord. 638 § 1, 1991; Ord. 541 § 1 (part), 1988) 24.12.040 Subject sources and their control requirements. All performance standards and test methods referenced in this section shall be based on the methodologies included in the Coachella Valley Dust Control Handbook. F. Public or Private Paved Roads. 1. Any owner of paved roads shall construct, or require to be constructed all new or widened paved roads in accordance with the following standards: a. Curbing in accordance with the American Association of State Highway and Transportation Officials guidelines or as an alternative, road shoulders paved or treated FRB with chemical dust suppressants or washed gravel in accordance with the performance standards included in subsection (13)(4) with the following minimum widths: i. Average daily tripsMinimum shoulder widths ii. Five hundred to three thousandfour feet iii. Three thousand one or greatereight feet b. Paved medians or as an alternative, medians surrounded by curbing and treated with landscaping, chemical dust suppressants, or washed gravel applied and maintained in accordance with the performance standards included in subsection (D)(4). 2. Any owner of public or private paved roads shall remove or cause to be removed any erosion-caused deposits of greater than two thousand five hundred square feet within twenty-four hours after receiving notice by the city or the AQMD or prior to resumption of traffic where the paved area have been closed to vehicular traffic. (Ord. 1074 § 2, 2004; Ord. 1056 § 2 (part), 2003) 24.20.050 Discharge of pollutants. A nonstormwater discharge to the storm drain system is a violation of this chapter except as specified below. A. The prohibition of discharges shall not apply to any discharge regulated under a NPDES permit or waiver issued to the discharger and administered by the state of California under the authority of the EPA; provided, that the discharger is in full compliance with all requirements of the permit or waiver and other applicable laws or regulations. B. Discharges from the following activities will not be considered a source of pollutants to waters of the United States when properly managed: water line flushing and other discharges from potable water sources, landscape irrigation and lawn watering, irrigation water, diverted stream flows, rising ground waters, infiltration to separate storm drains, uncontaminated pumped ground water, foundation and footing drains, water from crawl space pumps, air conditioning condensation, springs, individual residential car washing, flows from riparian habitats and wetlands, dechlorinated swimming pool discharges or flows from fire fighting. (Ord. 843 § 1 (part), 1997) 24.20.200 Concealment. Causing, permitting, aiding, abetting or concealing a violation of any provision of this chapter shall constitute a violation of such provision. (Ord. 843 § 1 (part), 1997) 24.20.210 Acts potentially resulting in violation of federal Clean Water Act and/or Porter-Cologne Act. 6 TR Any person who violates any provision of this chapter, any provision of any permit issued pursuant to this chapter, or who discharges waste or wastewater which causes pollution, or who violates any cease and desist order, prohibition or effluent limitation, also may be in violation of the federal Clean Water Act and/or Porter-Cologne Act and may be subject to the sanctions of those Acts including civil and criminal penalty. Any enforcement action authorized under this chapter should also include notice to the violator of such potential liability. (Ord. 843 § 1 (part), 1997) 26.46.030 Conditional uses. The following uses and structures shall be permitted in the D district subject to the issuance of a conditional use permit by the planning commission: A. New residential, commercial, industrial, and agricultural structures permitted by the underlying district regulations involved, and when they comply with all of the conditions listed below: 4. Landfills, improvements, developments, or other encroachment effect on the one-hundred-year flood level such that the water surface elevations of the one- hundred-year flood are increased by more than one foot shall be fully off-set by requirements for stream improvements meeting with the approval of the chief engineer of the affected flood control district; 26.46.040 Prohibited uses. The following uses are specifically prohibited in the D district: A. Excavations that will tend to broaden the floodplain or direct flood flows out of the natural floodplain; B. Landfills, improvements, developments, or other encroachments that would increase water surface elevations of the one-hundred-year flood more than one foot or that cannot be fully offset by stream improvements as provided in Section 26.46.070; C. Storage of floatable substances or materials which will add to the debris load of a stream or watercourse. (Ord. 97 § 1 (part), 1975: Exhibit A § 25.26-4) 25.46.070 Special standards. A. Development of hillside canyon areas shall not occur until hydrology is submitted which specifies techniques for management of runoff. The exact location of development shall include the determination resulting from a hydraulic study. B. Other standards required under conditional use permits shall also apply. (Ord. 212 § 1 (part), 1979: Ord. 97 § 1 (part), 1975: Exhibit A§ 25.26-7) 7 TB 27.12.069 Drainage devices. A. Except on slopes, drainage devices shall be constructed with minimum gradients as follows: Portland cement concrete construction - 0.5%; air-blown concrete construction - 0.5%; asphaltic concrete pavement- 0.5%; soils swales - 0.5%; pipes - 0.4%. B. Drainage devices constructed on slopes shall have a minimum gradient of five percent. Such drainage devices shall be constructed of air-blown concrete or Portland cement concrete with suitable reinforcement. Closed conduits, unpaved swales and asphalt concrete drainage structures shall not be used for slope drainage. C. Drainage devices shall be constructed to convey drainage to an established private or public water course, channel, storm drain or public street and shall be of a design to prevent erosion. 27.12.140 Nuisance prevention. The permittee shall take such steps as are reasonably necessary to prevent creation of a nuisance, including but not limited to spillage, dust, erosion and noise control. (Ord. 294 (part), 1982: Ord. 126 § 1 (part), 1976: Exhibit A § 27.2-8) 27.12.200 Final inspection. No final inspection approval or certificate of occupancy shall be issued by the building official until final approval of the finished grading has been given by the city engineer. (Ord. 465 § 2 (part), 1986) 28.10.060 Floodways. Located within areas of special flood hazard established in Section 28.06.020 are areas designated as floodways. Since the floodway is an extremely hazardous area due to the velocity of floodwaters, which carry debris, potential projectiles, and erosion potential, the following provisions apply. A. Prohibit encroachments, including fill, new construction, substantial improvement, and other new development unless certification by a registered professional engineer is provided demonstrating that encroachments shall not result in any increase in the base flood elevation during the occurrence of the base flood discharge. B. If Section 28.10.060(A) is satisfied, all new construction, substantial improvement, and other proposed new development shall comply with all other applicable flood hazard reduction provisions of Chapter 28.10. (Ord. 985 § 1 (part), 2001) 8 28.10.070 Mudslide (mudflow) prone areas. A. The floodplain administrator shall review permits for proposed construction of other development to determine if it is proposed within a mudslide area. B. Permits shall be reviewed to determine that the proposed site and improvement will be reasonably safe from mudslide hazards. Factors to be considered in making this determination include but are not limited to the: 1. Type and quality of soils; 2. Evidence of ground water or surface water problems; 3. Depth and quality of any fill; 4. Overall slope of the site; and 5. Weight that any proposed development would impose on the slope. C. Within areas, which may have mudslide hazards, the floodplain administrator shall require that: 1. A site investigation and further review be made by persons qualified in geology and soils engineering; 2. The proposed grading, excavation, new construction, and substantial improvement be adequately designed and protected against mudslide damages; 3. The proposed grading, excavations, new construction, and substantial improvement not aggravate the existing hazard by creating either on-site of off-site disturbances; and 4. Drainage, planting, watering, and maintenance not endanger slope stability. (Ord. 985 § 1 (part), 2001) Penal Code Sections: 370. Anything which is injurious to health, or is indecent, or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property by an entire community or neighborhood, or by any considerable number of persons, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway, is a public nuisance. 374.7. (a) A person who litters or causes to be littered, or dumps or causes to be dumped, waste matter into a bay, lagoon, channel, river, creek, slough, canal, lake, or reservoir, or other stream or body of water, or upon a bank, beach, or shore within 150 feet of the high water mark of a stream or body of water, is guilty of a misdemeanor. (b) A person convicted of a violation of subdivision (a) shall be punished by a mandatory fine of not less than two hundred fifty dollars ($250) nor more than one 9 TR thousand dollars ($1,000) upon a first conviction, by a mandatory fine of not less than five hundred dollars ($500) nor more than one thousand five hundred dollars ($1,500) upon a second conviction, and by a mandatory fine of not less than seven hundred fifty dollars ($750) nor more than three thousand dollars ($3,000) upon a third or subsequent conviction. (c) The court may, in addition to the fine imposed upon a conviction, require as a condition of probation, in addition to any other condition of probation, that any person convicted of a violation of subdivision (a), pick up litter at a time and place within the jurisdiction of the court for not less than eight hours. We are only making three requests, which have not changed from day one: Mitigate the water flowing in Bruce and Ramon Creek, this can be accomplished by increasing and channeling the flow and prohibiting contact with soil, with some weekly maintenance if necessary , which if the water is recaptured will pay for itself over time, (similar to the onsite stream created for the enjoyment of the members); remove and renaturalize the equipment bunker and the roads leading to it; and maintain the debris basin. Should you wish to discuss this matter, please do not hesitate to contact me. Sincerely, Timothy R. Bartlett, Palm Desert Resident 10 Stone Eagle EIR, Grading Plan & Governing Agency Violations Prepared by Tim Bartlett on June 1, 2006 Bruce Creek *ignored EIR engineering consultants facts: "Ephemeral wash cutting through bedrock is dry" EIR III-28, no surface water and no groundwater to a depth of 60' ES-5, two seeps do not have free water EIR 111-57, nearest water source for sheep is located 1.5 miles north northwest EIR Vlll-10 *Failed to meet requirements, "Hydrologic conditions would not be affected by this development' EIR V-9 "no significant cumulative impacts to affected drainage systems" and "net reduction in anticipated runoff discharge EIR VI11-4 *Failed to "prepare and submit for department approval a storm water pollution prevention plan and a detailed re-vegetation/enhancement plan for the restoration of the dry wash habitat EIR 111-58 and failed to "remove silt and revegetate after each major event" EIR III-29 *Omitted "low flow outlet structures to allow 10-yr or less to pass" EIR III-29 *Failed to "remove invasive non-native plant species on affected lands" EIR III-57 Irrigation Water *Omitted study of irrigation water runoff, only studied storm water runoff and project required to retain 100% of the 100-year storm SEIR-18 e Ignored EIR engineering consultants facts: "Positive measures should be taken to finish grade the building pads and other improvements so that drainage is directed away from foundations and the tops of slopes into controlled drainage devices. Experience has shown that even with these provisions a shallow groundwater or subsurface condition can and may develop in areas where no such conditions existed prior to development; this is particularly true where a substantial increase in surface water infiltration results from an increase in landscape irrigation" Geocon 21-22 *Failed to "prohibit non-storm water discharge into storm drains" a NPDES requirement EIR 111-41 and failed to follow streambed alteration agreement • Ignored EIR engineering consultants facts: "Mosquito carrying E coli bacteria found in Desert is related to high nitrate levels of water" EIR II-9 111-39 and 40% of water returned to aquifer EIR III-38 and the relatively flatter Reserve used as estimate for water usage is false due to undulating topography of Stone Eagle EIR 111-43 Goff Course •Exceeded maximum 92 acres of turf and 10 acres of desert landscaping EIR 111-42 and failed to gain approval of additional golf car paths *Omitted "potable ground water for tees and greens to regulate nitrates" EIR 111-42 *Failed to use acceptable material for the chain link sheep exclusion fence, and failed to gain ARC approval. *Failed to gain ARC approval of "Open air" pavilion which is a fully conditioned mini-clubhouse overlooking the 19"' hole EIR 111-84, 111-100 and added an open air pavilion overlooking the 9"' hole without including in EIR *Failed to use "structures planned for the project will consist of stucco and rock veneers that emulate the color and texture of the surrounding landscape" EIR III- 99, IV-4 *Failed to use contained septic system for comfort stations, used leach field *Exceeded grading boundary with additional driving range tees and additional turf not shown on grading plan *Failed to remove temporary equipment pad and roadways leading to it *Exceeded "all rock in fill soil shall be no greater than 3" diameter" EIR 111-24 and exceeded "unprotected graded slopes no steeper than 3:1,H:V" EIR 111-25 *Removed 100+ year old barrel cactus to use for golf course when restricted for use in natural open space AMEC 16 Residential Village *Failed to avoid staircase effect with minimal grading Hillside Planned Residential Zoning: Policy 1: "In order to maintain the natural contours of the hillsides, developments shall be designed as to require minimal grading and avoid a padding or staircase effect as a result of extensive cut and fill slopes" EIR 111-2. *Destroyed three archeological sites that required further investigation *Failed to remove silt and revegetate washes after each major event EIR I11-29 *Violated 404 Permit: bank protection will be designed to allow native vegetation to be planted PACE 5& 6 Agency ReportinglViolations *Failed to prevent leaky fuel storage tank and illegal human waste discharge during construction CRWQCB EIR 111-41 *Failed to follow SCAQMD requirements EIR 1I1-81 *Failed to complete agency notification to USFWS, CDFG, Army Corps. EIR 111-59