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HomeMy WebLinkAbout0616 MINUTES PALM DESERT PLANNING COMMISSION TUESDAY - JUNE 16, 2009 w w w w w w w w w w w w w w w w w w w w w w w w w w w w w w w w w w w w w w w w w w w w w w w w w w w w w w w w w w I. CALL TO ORDER Vice Chairperson Limont called the meeting to order at 6:00 p.m. II. ROLL CALL Members Present: Connor Limont, Vice Chair Sonia Campbell (arrived at 6:03) Nancy DeLuna Mari Schmidt Members Absent: Van Tanner, Chair Staff Present: Lauri Aylaian, Director of Community Development Dave Erwin, City Attorney Tony Bagato, Principal Planner Kevin Swartz, Assistant Planner Pedro Rodriquez, Senior Code Officer Tonya Monroe, Administrative Secretary III. PLEDGE OF ALLEGIANCE Commissioner Schmidt led in the pledge of allegiance. IV. SUMMARY OF COUNCIL ACTION Ms. Aylaian summarized pertinent May 21 and June 11, 2009 City Council actions. (Commissioner Campbell arrived). V. ORAL COMMUNICATIONS None. VI. APPROVAL OF MINUTES Request for consideration of the May 19, 2009 meeting minutes. MINUTES PALM DESERT PLANNING COMMISSION JUNE 16, 2009 Action: It was moved by Commissioner Campbell, seconded by Commissioner Schmidt, approving the May 19, 2009 meeting minutes. Motion carried 4-0 (Chairperson Tanner was absent). VII. CONSENT CALENDAR A. Case Nos. PP/CUP 06-03 and TPM 34437 — GERALD FORD BUSINESS PARK, LLC, Applicant Request for approval of a first one-year time extension for a precise plan / conditional use permit to construct a 100,500 square foot business park, and a tentative parcel map to subdivide a 6.1-acre site into 13 parcels at 75-300 Gerald Ford Drive. B. Case No. PP 07-14— WILLIAM R. LANG, Applicant Request for approval of a first, one-year time extension for the Jensen's Shopping Center remodel which included a precise plan amendment for an extensive remodel, and a minor addition to an existing 76,195 square foot retail center on a 5.15-acre site bounded by Highway 111, Larkspur Lane and El Paseo. The remodel includes three architectural elements 42 feet in height. Project location: 73-547 - 73-613 Highway 111, 45-051 Larkspur Lane, and 73-540 - 73-580 El Paseo. Action: It was moved by Commissioner Campbell, seconded by Commissioner Schmidt, approving the Consent Calendar by minute motion. Commissioner DeLuna asked for and received confirmation that Consent Calendar Item B was the Jensen's Center asking for a one-year continuance. She asked if any thought had been given to phasing. For instance, the parking lot is in deplorable condition. She asked if there was a possibility that they would phase that. Ms. Aylaian said yes. The developer spoke to her and indicated that he would like a one-year extension and has plans to come in and talk to staff about phasing, in particular because he believed the parking lot needed to be addressed sooner rather than later, whereas there isn't a high demand right now for the gross leasable area. So he was looking at different ways he might want to phase the project. Staff would similarly encourage him to finish the 2 MINUTES PALM DESERT PLANNING COMMISSION JUNE 16�2009 parking lot improvements. Commissioner DeLuna asked if that needed to be stated in some way. Ms. Aylaian said no. Vice Chair Limont noted that there was a motion and a second and called for the vote. Motion carried 4-0 (Chairperson Tanner was absent). 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 No. CUP 05-02 — CITY OF PALM DESERT, Applicant Request for revocation of an existing conditional use permit which allowed a massage therapy establishment in a 2,000 square foot office suite located at 43-875 Washington Street, Suite E. Business Owner: Mei Jun Wang. Mr. Tony Bagato explained that staff was requesting that the Planning Commission revoke the existing CUP (Conditional Use Permit) for the massage establishment at 43-875 Washington Street, Suite E. There were two citations issued in May and the business is no longer in operation. Staff requested that it be revoked. The findings for revoking the CUP were in the resolution with the dates of the citations. Also, no one would be able to apply for a massage establishment here at this location for one year. He asked for any questions. There were no questions. Vice Chair Limont opened the public hearing and asked for any testimony in FAVOR of or in OPPOSITION to the proposed revocation. There was no one and the public hearing was closed. Vice Chair Limont asked for Commission comments. Commissioner Schmidt asked for and received confirmation on the location of the use. There were no other questions or comments and Vice Chair Limont asked for a motion. Action: It was moved by Commissioner DeLuna, seconded by Commissioner Schmidt, to accept the staff report and revoke CUP 05-02. Motion carried 4-0 (Chairperson Tanner was absent). 3 MINUTES PALM DESERT PLANNING COMMISSION JUNE 16. 2009 It was moved by Commissioner DeLuna, seconded by Commissioner Schmidt, adopting the findings and Planning Commission Resolution No. 2504, revoking Case No. CUP 05-02. Motion carried 4-0 (Chairperson Tanner was absent). B. Case No. CUP 07-02 — CITY OF PALM DESERT, Applicant Request for revocation of an existing conditional use permit which allowed a massage therapy establishment in a 685 square foot office suite located at 74-350 Alessandro Drive, Suite B-4. Business Owner: Xiang Li. Mr. Kevin Swartz stated that on April 16, 2008, Tranquility Massage was sold to Xiang Li by Jing Tao, the previous owner who was granted Conditional Use Permit 07-02 back on February 6, 2007. Mr. Li, the new owner, submitted an application for a permit back in July of 2008 and had his mother, Ms. Qiao, listed as an employee. During the background process in July done by the Police Department, Ms. Qiao was found to have a conviction for disqualifying conduct. Since Ms. Qiao was a large part of the business, the Police Department recommended denial. The application was denied and Mr. Li removed his mother, Ms. Qiao, added Ms. Jessica Duncan, and resubmitted the application. Throughout the application period, Ms. Qiao continued to communicate with City staff regarding the application, indicating that she was still a large part of the business. On December 18, 2008, the City conducted an inspection and found staff present and conducting business without an approved license. Mr. Swartz stated the findings for revocation of CUP 07-02 could be made since the owner has not complied with Palm Desert Municipal Code Sections 5.87.160 D, 5.90.010, and 5.87.030, which were all attached to the staff report. He explained that if the revocation was approved, no new application could be filed for a period of one year for the same use. Staff recommended that the Planning Commission revoke CUP 07-02. Commissioner Campbell asked if Ms. Qiao was terminated or if she was still in the facility. Mr. Swartz said they were no longer in the facility. Commissioner Campbell asked who was operating it. Mr. Swartz said no one at this time. Commissioner Campbell noted that they had a letter from Dr. Shah saying that someone else is in the facility right now, a new tenant with a business license. Ms. Aylaian stated that to her knowledge, they did not have a business license for this address. She believed they were licensed as a business at another location. They were not currently open 4 MINUTES PALM DESERT PLANNING COMMISSION JUNE 16, 2009 for business at this location. Commissioner Campbell clarified they were talking about Alessandro Drive. Ms. Aylaian said yes. Referring to the letter from the Shah Family Trust, Commissioner Campbell indicated that it said that the previous owner was terminated from the lease and he has a new owner that has signed a lease for one year and the new tenant has a business license in Palm Desert. She is in the Palms to Pines mall, she's been there for five years, and hasn't had any problem with her Health massage center. Commissioner Campbell asked if everyone had a copy of the letter. The Commission answered affirmatively. Ms. Aylaian explained that when massage establishments are opened in the city of Palm Desert, three things are required. They need to be licensed for land use (the conditional use permit), but they also need a business license. That business license is a different type of application, different review process, with different criteria required, so what they were looking at was the land use element for the conditional use permit. She believed that the people who proposed to move into this location do have a business license in another location where they do have a conditional use permit; however, this location also had a stand-alone massage establishment conditional use permit. They were closed and the City moved to revoke their conditional use permit based upon certain criteria and certain violations that Mr. Swartz pointed out in his report. Because this issue involves a stand-alone massage establishment that the Planning Commission expressed concerns about recently, and because later on the agenda they would be considering a moratorium on stand-alone massage establishments so that staff can further analyze the impact that they have on policing and enforcement in the community, and so they can further analyze what the balance of business types and diversity of business types are in the city as far as revenue streams. Staff thought it would be inappropriate to recommend keeping this stand alone CUP open and that it was better to use this opportunity to revoke the CUP and in the future if the moratorium is passed and the analysis is done on what is the appropriate number and type of massage establishments to have in the city, and they begin reviewing and issuing CUPs for them again, this issue could be addressed with other CUPs that might apply. So this really had nothing to do with the business that is proposing to move in, the revocation was based upon the violations that were against the business, Tranquility Massage, which was operating in the premises in violation of certain criteria spelled out in the Municipal Code for massage establishments. 5 MINUTES PALM DESERT PLANNING COMMISSION JUNE 16 2009 Commissioner Campbell asked when the business was closed. Ms. Aylaian deferred the question to Code Officer Pedro Rodriguez. She thought it was earlier this year. Mr. Pedro Rodriguez, Senior Code Officer, said he had a list of inspections they did at Tranquility Massage. He received information that they were not supposed to be operating sometime between January and the middle of February. He did an inspection of the facility on March 11 and he found no one there. It was 6:30 p.m. and one of the tenants next door stated that they had just left for the day, so obviously they were still operating. He did another inspection shortly thereafter and did find a Jessica Duncan working at the facility. She was issued a citation for not having a valid therapy license. About two weeks ago they were supposed to also be closed and he noticed the door was open and approached the people that were there. Dr. Shah, the new owner, had hired a contractor to do a tenant improvement and no building permits were on file for that, so he shut the job down and issued a stop work notice and that was the last that they had contact with them there. That was about three weeks ago. Vice Chair Limont asked for clarification about the citation and that they were definitely in violation of Palm Desert code. Mr. Pedro said that was correct. Every therapist should have a valid therapist license and this particular location did not have therapists on two or three different occasions that were licensed. The first time was just a warning; the other two they were cited, and after this last citation that was issued, about a month or two months ago, they could not obtain a license through the City, so they kind of just backed off and shut down and at that point they had already been told that their establishment was being revoked. Commissioner Campbell asked if Jessica Duncan had a license in another location, she needed to have a license for this Alessandro location as well. Mr. Rodriguez explained that Jessica Duncan was not connected to the other location that was trying to move into this place; she was connected only to Tranquility Massage. The person trying to move in now has a license at another location that is not transferable; they had to get a separate license for that location. It was another business. Mr. Bagato clarified that Mr. Shah bought the property about a month ago. They were in the process of revoking it, and there was an owner of another location here in the city that was going to want to speak, they bought the business rights, although the business wasn't operating. That's why there was a little bit of confusion. They were trying to go into this location, but the revocation was already in the process when they applied for the business license. They were told that they weren't going to approve 6 MINUTES PALM DESERT PLANNING COMMISSION JUNE 16, 2009 the business license, they were actually trying to revoke the CUP because of the problems they had with the previous business and getting them licensed. They were supposed to be closed for a couple of months because they were unlicensed and they were operating illegally. So that was probably some of the confusion. Vice Chair Limont asked for confirmation that Mr. Bagato made them aware of that at the time of application. Mr. Bagato said that was correct, and Dr. Shah and his attorney were here and would want to speak. It was kind of a separate thing, but they were trying to move here because of the existing CUP, although staff told them we were trying to revoke it. Commissioner DeLuna noted that in effect, there were two separate issues. Ms. Aylaian clarified that there was only one before the Planning Commission, and that was whether or not the CUP should be revoked for Tranquility Massage based on their repeated violations. Vice Chair Limont opened the public hearing and asked if anyone wished to speak in FAVOR of or in OPPOSITION to the proposed revocation. MR. TONY M. LU, 3333 S. Brea Canyon Road, #213 in Diamond Bar, CA, 91765, stated that he represents Ms. Deng, who is the new owner who recently purchased this business for about $15,000. Before she went through the transaction, she checked with the City to see if there would be any permitting issues. She was advised by Claudia, the City, that everything should be okay given that she had a different store called Health Systems on Highway 111 that has been in operation since 2007. She was informed that it should be pretty swift, pretty easy. Later on when she tried, she couldn't renew the CUP. She ran into problems saying that there have been several citations in the past, but this had already been after she had already spent $14,000 into this business and she has spent about $4,000 in tenant improvements. He said she is licensed to do massage therapy. Given that she has signed a year lease with Dr. Shah, she is on the hook. On the one hand, it is $20,000, that's what she spent, and on the other hand, there is another year left on the lease. She has never operated a business within this location; therefore, she would respectfully request that no further CUP be denied with respect to this location such that she could go in and conduct the business. And her position is important, like Dr. Shah. It was Mr. Lu's understanding that the center is presently only 50% occupied and he thought, although he wasn't speaking on Dr. Shah's behalf, that it would be in the landlord's interest to have a business establishment that is 7 MINUTES PALM DESERT PLANNING COMMISSION JUNE 16. 2009 going to bring business. The business that she has, called Health Systems, has been around for two years and never had any problems whatsoever with the City. Commissioner DeLuna pointed out that Mr. Lu talked about $4,000 that Ms. Deng spent in tenant improvements. She asked if that was done with the proper permits. Mr. Lu said it wasn't really a T.I. His understanding was that she had to tear down certain items to be replaced, so she didn't really construct T.I. per se. She had to take out all the debris, existing walls and things that were being repaired. That was what the $4,000 was for. Given that she ran into the obstacle, she stopped doing any further work. Commissioner DeLuna asked if she amended her application for a license to run a business from that location. Mr. Lu answered not at the present time. Commissioner DeLuna asked if her personnel have been licensed at that location. Mr. Lu stated that she has never operated a business in that location. Commissioner DeLuna thanked him. Commissioner Schmidt asked for clarification that she is operating a business presently in the Palms to Pines shopping center. Mr. Lu didn't know the name of the shopping center, but it's located at 72-655 Highway 111, Suite B-7; that's a different location and has been operating since 2007. Commissioner Schmidt asked if she wished to move from that location to the new location. Mr. Lu said no, it would be a second location. Commissioner Schmidt thanked him. Commissioner Campbell clarified that she did sign a lease and purchased the business. 8 MINUTES PALM DESERT PLANNING COMMISSION JUNE 16 2009 Mr. Lu said that was correct; $14,000 for the business and $4,000 for miscellaneous repairs, a security deposit of $1,500 and her monthly rent he believed was $1,200. And she is current, despite the fact that she is not running the business, she is still paying rent because she didn't want to get into any contractual disputes. Commissioner Campbell asked for confirmation that Ms. Deng didn't know anything about the CUP until she came to the City. Mr. Lu said her understanding was that she was going to go in there to either renew it or apply for one under her name. She was informed by the City that given her track record at the different location, it would have been very easy. At this time she had no idea as to what may have gone wrong back then when the previous owner was operating the business. If she had known, she would not have entered into this agreement. MR. GREG SWAJIAN, 74-090 El Paseo, stated that he is an attorney representing the Shah Family Trust, the owner of the real property. He said that in effect, as Ms. DeLuna mentioned, there are two issues going on here. Counsels and the new buyers have no connection whatsoever, including the personnel as he understood it, with the parties that received the letter in April of 2008, which was 14 months ago, or the various actions taken by Code Enforcement in order to protect and promote the city of Palm Desert. What they have is a new owner of the property as of about May 5, 2008; the Shah Family Trust purchased the property from Jorge and Iliana Vasquez, so they were no longer the owners of the property. And then they have a lease that was entered into as discussed by Ms. Deng, who has been operating, he believed from the information he received today that it is located next to the Von's at Palms to Pines, apparently without any issues whatsoever, looking for a second location. This is not a new CUP. It was his understanding, and Counsel for the Dengs could correct him if he was incorrect because he didn't represent them, but they also purchased the name Tranquility, so the old entity or old owners are gone, the name would remain, and that's where the CUP is located. So they didn't have offending owners, employees, independent contractors; he didn't know the previous folk, neither did the Commission. 9 MINUTES PALM DESERT PLANNING COMMISSION JUNE 16 2009 They were looking to continue to have the business here in Palm Desert and he thought one of the important issues, as he looked at the agenda and what was discussed, and he thought there was a slight perhaps play on words. One of the things they heard a few minutes ago was something about a stand-alone entity such as this massage parlor. But if they look at what is coming up, it is calling for a one-year moratorium on the issuance of conditional use permits for independent massage establishments. That wasn't necessarily stand-alone and he thought that was a slight misstatement that he thought was important. Obviously they have a history, and a history here in Palm Desert, which he was sure was important for them all. Secondly, if they take this independent, and if they are looking to make a second entity, they are now going from an independent to much more of a use that certainly is an independent. They now have two entities owned by the same folks, so they would be monitored at two locations and again, there is some sort of history as counsel has presented to them. He thought that was important for allowing the CUP to continue and he thought it was not in support and not contrary and in fact regarding the next agenda item regarding the one-year moratorium. Rather than going on to the next agenda item, Vice Chair Limont asked Mr. Swajian to address this item and summarize his comments. Mr. Swajian said they have a new owner as of May. He apologized to Dave Erwin for misspelling his last name. Secondly, they have a new tenant and a tenant that has a history with the City of Palm Desert. They were just wishing to continue the CUP with Tranquility. They bought the name, and he thought it was pretty clear by everybody they heard, including Code Enforcement, that there is no connection with the old entity that was cited and continued to be in violation through the early part of 2009. They were here to clean it up. Dr. Shah owns a number of properties, as the Commissioners were well aware, on Fred Waring and Highway 111 here in Palm Desert. He has helped the real estate commercial business down here, perhaps more than any other person in Palm Desert. Dr. Shah believes in this area, continues to invest his work, his construction, including his architect Narendra Patel, who does top notch work. So there is not a chance that someone of this kind of high end developer that we have here in the desert is going to do anything contrary in the best interest of his building for property values, which also assists his neighbors. 10 MINUTES PALM DESERT PLANNING COMMISSION JUNE 16�2009 Vice Chair Limont thanked him and asked if he had anything further that would help with the decision making. Mr. Swajian said as counsel he would be happy to answer any questions regarding the property. He had the lease and the document on the transfer of the property, so everything was backed up from the documentation he had here, which was consistent with Suresh Shah's communication to them of the last day or so. Commissioner DeLuna asked for clarification that Mr. Swajian only represented Mr. Shah and not Tranquility. He spent a lot of time telling them about Tranquility, but they were actually not his client. She asked if that was correct. Mr. Swajian said that was absolutely correct. Commissioner DeLuna thanked him. Mr. Swajian asked if there were any other questions. There no further questions. Mr. Swajian thanked the Commission. Vice Chair Limont asked if there was anyone else wishing to speak in FAVOR of or in OPPOSITION to the proposed revocation. Before closing the public hearing, Mr. Erwin asked Mr. Rodriguez about any records he might have regarding the current applicant for this location. That issue had been brought up and he thought the Commission should hear everything about it. Ms. Aylaian repeated the question for Mr. Rodriguez, asking for any history on the applicant for this location, on Health Systems, who represented they have a clean record here in the city. Mr. Pedro Rodriguez, Senior Code Compliance Officer, stated that as of last September when they started doing their monthly massage therapy inspections, they hadn't had any violations at the Health Systems over at 72-655 B-7. Every time they have been there, the facility has been clean, sanitation has been adequate, licensed therapists, and they haven't had any violations there at all. Everything was in complete compliance and they do have records of their inspections there and there haven't been any violations. Vice Chair Limont said it was her understanding that at the time that the applicant came in to apply for a CUP, that they were told we were in the 11 MINUTES PALM DESERT PLANNING COMMISSION JUNE 16, 2009 process to revoke it. She asked if that was correct. Mr. Bagato's understanding was they went to the Finance Department and spoke to Claudia about a month ago and said that there is an existing conditional use permit and they would like to come in and take over the business. At the time, Claudia had not been part of the discussion staff had been having with the City Attorney about revoking a couple of locations. He thought from their discussion with the Finance Department that they believed they could move forward and basically kind of take over the old business and operate it as a second location. About two weeks later, they came to speak to Planning about approving the business license and that's when Planning staff informed them that they were in the process of revoking it because of the issues with the former business owner. And so initially they talked to one department and thought everything was okay. They were in discussion with Claudia's boss; however, Claudia was the technician in Finance that wasn't aware that Planning was in the process of revoking the permit. So that's where he thought some of the confusion came in. But when they came to Planning, they had already purchased the business and were trying to actually process the tenant improvements, when he denied the plans for the tenant improvements (T.I.) because they were revoking the CUP. Vice Chair Limont asked approximately when that occurred. Mr. Bagato said it was two or three weeks ago when they came and spoke to him about the T.I., but they said they had met with Claudia about two weeks prior to speaking to him. Vice Chair Limont noted that the letter said the building was purchased on May 15, 2009. Mr. Bagato confirmed that Dr. Shah bought it in May and started renovations, like repainting it, back in May, but the business owner who signed the lease with Shah was about four weeks ago, before they came to Planning. So at this time, for this specific business, Vice Chair Limont said they did not have a CUP in place for this specific business. Mr. Bagato clarified that there is a CUP, that's what they were asking to revoke, but as he stated before, conditional use permits run with the land and so they wanted to come in and basically take over and apply for a new business license and work under the existing conditional use permit and work with the existing conditions, the hours and limitations. So when they met with Claudia, they thought they could just do that. So they weren't asking for a new CUP, they were asking that we not revoke it so they can start a new business under the existing one. When she mentioned earlier that they might be dealing with two separate issues, Commissioner DeLuna clarified that the only thing they were really dealing with tonight was whether or not to revoke the existing CUP. Any 12 MINUTES PALM DESERT PLANNING COMMISSION JUNE 16, 2009 other issue would have to come in separately. She asked if that was correct. Mr. Bagato said technically no, because they were asking for them not to revoke it because of their business application that they are trying to process. So it is still one issue. They have an existing CUP that staff is recommending be revoked and they are asking that it not to be revoked so they can operate a business there as a new business owner. Commissioner Schmidt asked for the date of the application for business license on the new location. Mr. Bagato didn't have that paper work. Mr. Erwin interjected that they were using a lot of different terms here and thought clarification would be helpful. A conditional use permit is a land use permit that runs with the land. That's what Dr. Shah is concerned about. The operation of a massage business requires three things: the conditional use permit for the location, a massage establishment permit, which is run through the Business License Department; it is not a particular business license, it is a massage establishment permit; and then the massage therapist must also have individual permit. So they were kind of mixing the conditional use permit and massage establishment permit and talking like it's a business license. It's not. It's another one that has much more detail to it than a regular business license would. But there is also a business license in addition. Vice Chair Limont reiterated that they were just talking about the CUP that goes with the land, which exists now and they were being requested to revoke it this evening. Mr. Erwin concurred. To clarify terminology, as pointed out by Dr. Shah's attorney, Ms. Aylaian explained that they do use the term both independent and stand-alone. At a staff level those terms are used interchangeably. They were not referring to the ownership and whether or not an establishment is one of a chain, a franchise, or has other locations. They were referring to the fact, whether they called it stand alone or independent, that it only provides massage services. It is not part of a hotel and there are no other uses associated with it. So she apologized for any confusion that may have caused, both on this issue and later when they talked about the moratorium. The terminology, either stand alone or independent, just referred to the fact that there are no other secondary uses associated with that location. Commissioner Schmidt asked if there was a secondary use on that property. Ms. Aylaian said no. Commissioner Schmidt indicated this was either a stand-alone and/or independent massage. Ms. Aylaian said yes. If revoked, Vice Chair Limont asked if the new applicant would have to come before Planning Commission. Ms. Aylaian explained that if the CUP 13 MINUTES PALM DESERT PLANNING COMMISSION JUNE 16,2009 was revoked, there could not be another application for a CUP for massage at this location for one year. Any recourse that the other business has would be a private issue between themselves and the landlord or themselves and the people they bought the business from. In response to Commissioner Schmidt's earlier question, Mr. Lu stated that his client went to speak to Claudia on Monday, May 12, whereupon she got the okay that it should be okay. On May 13, which was a Tuesday, she signed a lease. And on May 14, Wednesday, that's when she went back and tendered two checks to the City; one in the amount of $500 and the other in the amount of $60. So it was Monday, Tuesday, Wednesday from the 12th to the 14th Commissioner Schmidt asked what the checks to the City were for. Mr. Lu said it was his understanding that it was for the business license. Commissioner Schmidt asked if it was for the massage establishment permit. Mr. Lu said he wasn't clear. He didn't think his client was really clear as to what she was paying for. She was asked to make out two checks and she did so on May 14. Mr. Bagato clarified that one was for the massage establishment application license as the City Attorney pointed out, and the other one was for the business license. Commissioner Schmidt asked if she is a licensed massage therapist. Mr. Lu said that was correct. Commissioner DeLuna asked for clarification. The second time Mr. Lu got up to speak he said that City employee Claudia said it was okay. The first time he spoke he just said there was just an indication that there was no reason not to proceed. That was a different perception and she wanted to be clear that no one in the Finance Department said it was okay. Based on his notes and his understanding, Claudia said it should not be a problem. In fact, that his client was going to get this permit pretty fast, pretty soon given her history. He believed those were her words. 14 MINUTES PALM DESERT PLANNING COMMISSION JUNE 16 2009 Commissioner DeLuna thanked him. Commissioner Campbell asked if he had any idea when Dr. Shah purchased the property. Mr. Lu said that part he did not know. Mr. Bagato said May 15, 2009. Vice Chair Limont noted that the applicant applied for and gave the City checks for a business license and a massage permit while we were in the process of possibly revoking the CUP. She asked if there was just miscommunication there or if it was just because it was different departments. Ms. Aylaian suspected that was the issue. The departments are in separate buildings and they try to communicate well, but that doesn't always happen, or instantaneously. Vice Chair Limont reiterated that the applicant just went to the Finance Department and made out checks. Ms. Aylaian said that was her understanding. Based on the issue of the two checks, Commissioner DeLuna asked if the conditional use permit was denied or revoked, if Ms. Deng had recourse to try to receive a refund on the money that she spent for a license or permit. Mr. Bagato believed Claudia had already issued the refund; staff told them to refund it because of this. Commissioner DeLuna asked for confirmation that they were not out any money at this point. Mr. Bagato said not from the City's side. Vice Chair Limont closed the public hearing and asked if there were any further comments from Commissioners. Commissioner DeLuna understood that there was a bit of a complication, but they were still trying to deal with staff's request to revoke the CUP of a former business because of violations. She asked if that was correct. Ms. Aylaian said yes. In revoking that, Commissioner Schmidt said they totally got rid of any opportunity for the new licensed massage therapist to operate under that CUP. Ms. Aylaian said they preclude the opportunity for any businesses to operate as a massage establishment at that location for one year. Any subsequent massage use there would have to go through the public hearing process again after a year. Commissioner Campbell didn't think the new owner that signed the lease with Dr. Shah, and it seemed to be all in that period of time from May 12, 15 MINUTES PALM DESERT PLANNING COMMISSION JUNE 16, 2009 May 13, May 14 and May 15, that she should be penalized because of what happened in that same location and she didn't think the CUP should be revoked at this time. She didn't know and Dr. Shah didn't know anything about the history of what was going on. They heard also that the new tenant didn't have any problems whatsoever there in her present location to go ahead and move into a new location. She seemed to go ahead and was doing therapy and not just massage per se, but she is out of the money. She didn't know anything about the history of the location of what was going on. Everybody was out and she was coming in with a clean slate and the way business is now, they do want to go ahead and have everything leased as much as possible. The police would be in the facility like they do right now, probably monthly, and if there was anything that they find that's wrong, they can always revoke their license and the CUP. But she thought at this time it should not be revoked. Commissioner DeLuna said there was a reason they were considering a moratorium, and unfortunately, there were some things that have complicated this from being a clear cut issue. Nonetheless, she thought the issue before them tonight, not only on this issue, but subsequently, was establishing a moratorium on such stand alone or independent uses. Unfortunately, even though she agreed with what Commissioner Campbell had said, she didn't think it changed the purpose for the revocation of the CUP. Commissioner Schmidt asked if Mr. Erwin had some counsel for them. Mr. Erwin said they have before them the staff report and the factual circumstance, and the decision was left to the four of them. Vice Chair Limont agreed with her fellow Commissioners. She thought it was horribly unfortunate for the massage therapist; however, according to counsel, the CUP goes with the land and she thought that was the issue before the Commission this evening. This was not clear cut, it wasn't easy, and it wasn't just "we don't like stand alone massage parlors". That wasn't the direction they were trying to take here. But it was a serious situation, especially with this issue, so as much as she would like to say they could be separated out, she agreed with revoking the CUP. She asked if there was a motion. Action: Commissioner DeLuna moved that they support staff and revoke the CUP. Commissioner Schmidt seconded the motion. Motion carried 3-1 (Commissioner Campbell voted no, Chairperson Tanner absent). 16 MINUTES PALM DESERT PLANNING COMMISSION JUNE 16 2009 It was moved by Commissioner DeLuna, seconded by Commissioner Schmidt, adopting the findings and Planning Commission Resolution No. 2505, revoking Case No. CUP 07-02. Motion carried 3-1 (Commissioner Campbell voted no, Chairperson Tanner absent). It was noted that the Planning Commission was the final action on a conditional use permit, but the decision was appealable to the City Council, and the applicant may appeal. C. Case No. ZOA 09-253 — CITY OF PALM DESERT, Applicant Request for a recommendation to the City Council to approve a clarification to Palm Desert Municipal Code Chapter 25.112, Exceptions Based on Unconstitutional Takings. Ms. Lauri Aylaian explained that the item before the Planning Commission was a clarification of existing language in the Zoning Ordinance. This language dealt with circumstances in which an applicant with a piece of property they would like to develop believes that a strict application of the Zoning Ordinance would result in an unconstitutional taking of their property. In other words, they believe that they would lose all economic value or economic benefit of the property if the Zoning Ordinance is strictly applied. In instances like that, they could apply for an exception to the Zoning Ordinance and they are required to put forth a certain amount of information that would demonstrate why they believe that an exception needs to be granted in order for them to be able to retain some beneficial use and economic use of their property. She further explained that this was passed in 2005, and had not yet been applied. Staff was going through a case now where they actually received an application for an exception, and as they were working on the case, they were working with legal counsel, and the attorneys recommended that this modification be made to clarify explicitly that the Planning Commission has the ability to condition any exceptions that they approve. Throughout the Zoning Ordinance, it is implicit that any request brought before the Planning Commission does offer them the opportunity to place conditions upon it. It is not administerial approval, it is discretionary. Our attorneys recommended that we in this case say it explicitly in 25.112 which deals with the exceptions based upon unconstitutional takings. Staff's recommendation was that language be inserted which clarifies that the Planning Commission, upon granting an exception pursuant to this 17 MINUTES PALM DESERT PLANNING COMMISSION JUNE 16 2009 section, may limit the scope of the exception or impose conditions to achieve to the extent reasonably feasible the objectives of the standard or standards to which an exception is being granted, but without constituting a taking of the property without just compensation. Ms. Aylaian said that if they wanted an example, one of the ones they would most likely see was an exception that actually has been requested, and that would be an exception to a prohibition on building on a ridge on the hillside. If they could imagine, the hillside is topographically varied. Each parcel is different. It's difficult to make generalizations because the topography is so different from one parcel to another, but if an applicant wanted to build on their hillside parcel and they found that all the places they thought were buildable were actually ridges identified by the Hillside Ordinance, they could propose that an exception be granted so that they could build on that ridge because if they couldn't, they would not be able to develop their property. If that came before the Planning Commission, it was staff's belief that the Planning Commission already had the ability to, and should be able to, condition an exception so that, for instance, they could say they could build on this portion of the ridge, but not another. They could tailor it to be specific to that property, which staff believed was the intention of the existing Zoning Ordinance and was appropriate discretionary decision making by the Planning Commission in order to make an exception that comports to the intent of the standards for hillside development. She asked for any questions. She noted that there were a couple of interested parties in the audience. Ms. Aylaian also pointed out that the Planning Commission received a letter from Matteoni, O'Laughlin & Hechtman, attorneys representing the applicant for the case she mentioned wherein this is the first application they received for an exception to the Hillside Ordinance. That letter was distributed to the Commission and if they had not had an opportunity to read it, she recommended taking a minute to read through it to see their comments. (Commission did so.) Vice Chair Limont opened the public hearing, and referring to the Request to Speak cards, invited Mr. David Nelson to address the Planning Commission. MR. DAVID NELSON, 72-595 Beavertail Street in Palm Desert, explained that he is the owner of a five-acre parcel on Upper Way West, which as they knew, he has been trying to obtain approvals on from the City to build a single-family home on the parcel for about six and a half years now. He was at the meeting to oppose the City's proposed amendment to Chapter 25.112. This chapter 18 MINUTES PALM DESERT PLANNING COMMISSION JUNE 16 2009 now allows property owners to apply for an exception application to the zoning standards which, if applied to their property, would create a taking of private property, which is prohibited by Federal and State constitution. He understood that they received a copy of his attorney's letter opposing this amendment. They found out only on Friday that the City was considering this amendment. On March 13, 2009, he applied for the exception application. His application seeks exception to the zoning standards prohibiting development on ridgelines and restricting pad and building size. He submitted the application, all the required appraisal and engineering analyses, which showed that if these standards are applied to his property, it will result in an unconstitutional taking of his property. He would not be able to develop his property to an economically viable use. Under the existing Chapter 25.112, the Planning Commission was required to determine, based on the evidence received, whether the application of these zoning standards to his property would result in an unconstitutional taking. If so, the City could either buy his property or exempt his development from these standards. The problem with this proposed amendment is that if the Planning Commission finds that the zoning standards, if applied, would result in the taking of private property, it could impose new standards and conditions on the property. That made no sense to him. His exception application only asked whether the zoning standards that he identified for the prohibition of the development on the ridge and the restriction of the building pad result, if applied against his property, in a taking of the property. That is the only determination at issue. The Planning Commission should not be allowed to impose new standards which are not existing zoning standards and have not been subject to any sort of public review and comment and place them on his property. That is impermissible spot zoning and it was unfair and discriminatory against his property. Mr. Nelson's first request was for the Planning Commission to not recommend adoption of this proposed amendment, but if they do choose to recommend this proposed amendment, he would then request that it not be retroactively applied to his pending application. His attorney's letter addressed why this amendment should not apply retroactively to his property; and from his perspective, it was simply unfair and unreasonable to continue to change rules and regulations governing the application procedure while people are in the midst of the application procedure and have 19 MINUTES PALM DESERT PLANNING COMMISSION JUNE 16 2009 in good faith relied on those procedures in pursuing the development of their property. He asked that they please carefully consider his request and thanked them for their time. MR. BRUCE KUYKENDALL, 49-081 Sundrop Court in Palm Desert, stated that he was present to represent himself, Dave Baron, and their Barracuda LLC. They also own a five-acre parcel adjacent to Mr. Nelson's. They were also represented by Mr. Matteoni and they would be shortly filing their exception as well. He strongly felt that this was a continuation of the taking of their property that is unlawful. They wanted to go on record with every word that Mr. Nelson said to be applied to them. There was no one else wishing to speak. Vice Chair Limont closed the public hearing and asked for Commission comments. Commissioner DeLuna said she had a question to ask of one or both of them. Was it their intent to build on the ridgeline or was it their intent to build somewhere on the property? With all due respect, Mr. Kuykendall said he started back in 2002 with this process. He submitted numerous options. Their parcel was graded back in the '60's and there was roughly a 180-foot piece of that ridge that was leveled off back in the 1960's right at the end of the homesteading of these properties. They've tried a pad there, they've been denied. They did receive Planning Commission approval at one point, but immediately the City Council jumped on that. He had three different City Council members tell him that he would not build on that property on their watch. At that point, Jean Benson said they need to buy these gentlemen out if that was their stance. They went and talked to Carlos Ortega. He requested that they get appraisals on the property. They did that. They put up a Tolling Agreement while the Hillside Ordinance was passed. After it was passed, they received their Tolling Agreement unsigned and a letter from the City that they were no longer interested in purchasing their property. They have jumped through hoops, they are filing their exception, and they are paying for reports from appraisers and engineers. They've tried every little piece on there to try to make it. He's a grading contractor and has specialized in Palm Desert and hillside development and helped the Planning Commission set a lot of the standards that Bighorn had to adhere to. But then they went awry and now they are paying the price for the Hagadone property and 20 MINUTES PALM DESERT PLANNING COMMISSION JUNE 16. 2009 that project. The ridgeline that was drawn by the Planning Department pretty much encompassed all of the buildable sites on their property. It wasn't feasible to try to spend $250,000 to build a 10,000 square foot pad and they need a garage and a turnaround; it was not feasible. They are turning in reports to show that and this new amendment was just another continuation of the taking of their property, just handcuffing them. Commissioner DeLuna asked for clarification that the answer to her question was that they are only interested in building on the ridgeline of those lots. Mr. Kuykendall said he would build any where that is feasible, it just happened to be when the City Planning Department made their ridgeline map, which is a blown up topography of what they supplied them. They took a magic marker and pretty much said well, they can't go there, and you can't go over here, and so in reference to his parcel, it meant he couldn't even access it. So he has a $2 million piece of property that has no feasible use whatsoever. The only thing he could do was walk on it. Next door, while all this was going on, Stone Eagle came in and demolished 60 acres and didn't leave any of the prominent points or ridges that they were supposed to leave. He was getting a little sidetracked, but right across that imaginary property line and 30 feet from the sales office, and he was looking at their maintenance facility, their clubhouse, 500 cars parked, and right across that imaginary property line he couldn't do anything. Commissioner DeLuna said she could tell he was frustrated. Mr. Kuykendall said very much so. Commissioner DeLuna thanked him for his comments. Commissioner Schmidt said that this is a recommendation to the City Council to change the wording. That is their main goal this evening. She moved that they do just that, recommend this change. She thought the change clarified the existing ordinance and the intent of what is already there and should be done. It was unfortunate, and she knew what they were saying because she had heard it before a number of times, but their assignment this evening was to recommend to Council a clarification of somewhat vague language in the ordinance. She moved that they do that, just the way it is written. 21 MINUTES PALM DESERT PLANNING COMMISSION JUNE 16 2009 Commissioner Campbell thought they could go ahead and propose to Council to go ahead and change that amendment, but she thought these two people should be exempt from this amendment. Vice Chair Limont seconded Commissioner Schmidt's motion. Action: It was moved by Commissioner Schmidt, seconded by Vice Chair Limont, approving the findings as presented by staff. Motion carried 3-1 (Commissioner Campbell voted no.) Ms. Aylaian noted that it sounded like that motion, second and approval was for staff's recommendation. Mr. Erwin concurred. Commissioner Schmidt clarified that it was her understanding that in the recommendation, there was no reference to the Nelson or Kuykendall properties. Mr. Erwin said that was correct. Commissioner Schmidt said that was her intent. She wasn't certain they had the authority to exempt anyone. That was her only reason; she didn't think they had the authority to exempt anyone at this point. Vice Chair Limont agreed with Commissioner Schmidt. She was hoping this helped to clarify, because she knew this had been a difficult situation for them, the City and the Planning Commission. She was pleased because for her at least, it helped to say this is the original intent, because the ridgelines vary so greatly. Commissioner Campbell asked the City Attorney if he wrote the amendment. Mr. Erwin answered yes. Commissioner Campbell stated that she would change her vote. It was moved by Commissioner Schmidt, seconded by Vice Chair Limont, adopting Planning Commission Resolution No. 2506, recommending to City Council approval of Case No. ZOA 09-253. Motion carried 4-0. IX. MISCELLANEOUS A. Request for a recommendation to the City Council to adopt a one-year moratorium on the issuance of conditional use permits for independent massage establishments while long- term regulatory strategies are studied. Mr. Kevin Swartz stated that on May 19, 2009, the Planning Commission requested that staff prepare a report and recommendation to the City Council for a moratorium to be placed on conditional use permits for all independent massage establishments for a period of one year while the 22 MINUTES PALM DESERT PLANNING COMMISSION JUNE 16. 2009 City studies massage establishments. The Commissioners requested the moratorium, and in light of the Police Department activity at massage establishments because of illegal conduct and operating without an approved license. In the report, staff outlined the reasons for the moratorium and staff recommended that the Planning Commission recommend to the City Council a moratorium be placed for one year while staff studies the issue. He asked for any questions. Commissioner Schmidt noted that it seemed there might be several CUPs that were dormant and businesses that were no longer operating. She asked if that was correct. Mr. Swartz stated that he included a chart in the report; there were 19 approved CUPs and those were all active. Two of them were in front of the Commission today. If they didn't get appealed within 15 days, that number would drop down to 17. Out of the 19, 10 are independent massage establishments, 9 are secondary use massage establishments. He confirmed they are all in operation. Commissioner Schmidt reiterated that any CUP that has been running with the land that would house an independent massage establishment was either operational or non-existent. There were no CUPs just sitting out there that were issued to massage establishments that were no longer in business. Mr. Swartz concurred. Commissioner DeLuna thought it was worth noting that there if there are 19, 9 of which were either in day spas or hotel establishments, that putting a moratorium on the stand alone independent massage establishments while they study the need, no one who legitimately wanted a massage would be denied access to a reputable massage therapist. Commissioner Campbell asked if any applicants currently in the application process would be exempt from this moratorium. Mr. Swartz said that was correct. Mr. Bagato indicated that staff currently had no applications. Commissioner DeLuna asked what the process was to move this on to the City Council, and if it was approval of the resolution. Mr. Erwin confirmed that Planning Commission's approval of the resolution would move it to the City Council. It would be on a Council agenda. The way a moratorium works, the Council could initiate it immediately. The immediate enactment of it is good for 45 days. The Council, after a public hearing prior to the end of the 45 days, could extend it for 10 and one half months. That's how they got one year. Commissioner DeLuna stated that she would move to approve the resolution moving it to the City Council. 23 MINUTES PALM DESERT PLANNING COMMISSION JUNE 16 2009 Vice Chair Limont asked if they needed a public hearing on this matter. Mr. Erwin replied no. (Note: there was no one in the audience.) Action: It was moved by Commissioner DeLuna, seconded by Commissioner Schmidt, recommending approval of a one-year moratorium. Vice Chair Limont asked for discussion. Commissioner Schmidt noted that there was discussion regarding independent versus stand alone and asked if this language was sufficient to cover them all. Mr. Erwin said yes. Commissioner Schmidt stated that her second would stand. Vice Chair Limont called for the vote. Motion carried 4-0 (Chairperson Tanner was absent). It was moved by Commissioner DeLuna, seconded by Commissioner Schmidt, adopting the findings and Planning Commission Resolution No. 2507, recommending to City Council adoption of a one-year moratorium on issuance of conditional use permits for independent massage establishments while long-term regulatory strategies are studied. Motion carried 4-0 (Chairperson Tanner was absent). X. COMMITTEE MEETING UPDATES A. ART IN PUBLIC PLACES Commissioner Campbell reported that the next meeting would be June 17. B. LANDSCAPE COMMITTEE Vice Chair Limont summarized their discussion items. C. PARKS & RECREATION None. D. PROJECT AREA 4 COMMITTEE Commissioner Schmidt provided an update on their last meeting. 24 MINUTES PALM DESERT PLANNING COMMISSION JUNE 16. 2009 XI. COMMENTS Staff and the Planning Commission discussed the July and August meeting schedule. The Planning Commission canceled the July 7 and August 18, 2009 meetings. XII. ADJOURNMENT It was moved by Commissioner DeLuna, seconded by Commissioner Schmidt, adjourning the meeting by minute motion. Motion carried 4-0. The meeting was adjourned at 7:22 p.m. LAURI AYLAIAN, Secretary- aST:NOR LIMONT, Vice Chair • Palm Desert Planning Commission Am 25