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HomeMy WebLinkAbout2012-09-18 PC Regular Meeting Minutes CITY OF PALM DESERT PALM DESERT PLANNING COMMISSION MINUTES • TUESDAY, SEPTEMBER 18, 2012 — 6:00 P.M. COUNCIL CHAMBER 73-510 FRED WARING DRIVE, PALM DESERT, CA 92260 I. CALL TO ORDER Chair Sonia Campbell called the meeting to order at 6:02 p.m. II. ROLL CALL Present: Commissioner Roger Dash Commissioner Connor Limont Commissioner Van Tanner Vice Chair Nancy De Luna ir . Chair Sonia Campbell Staff Present: Dave Erwin, City Attorney Lauri Aylaian, Director of Community Development Mark Greenwood, Director of Public Works Kevin Swart, Assistant Planner Christina Canales, Assistant Engineer Monica O'Reilly, Administrative Secretary III. PLEDGE OF ALLEGIANCE Chair Campbell led the Pledge of Allegiance. IV. SUMMARY OF COUNCIL ACTION Ms. Aylaian stated the City Council met September 13, 2012, and discussed two items of interest: 1) continued discussion of a consultant to be selected for updating the Housing Element. After deliberation, the City Council rejected all the proposals that have been received and directed staff to solicit new proposals, explicitly requesting the update for the Housing Element and requirements that taw are in SB 244. Staff hopes to return to the City Council with a recommendation at MINUTES PALM DESERT PLANNING COMMISSION SEPTEMBER 18, 2012 the first meeting in October; and 2) the City Council extended a temporary signage program for 90 days. The program was devised and initiated early in the summer to assist residential home builders with better visibility during the weekends for their marketing efforts. Staff hopes to address the signage program during the update of the zoning ordinance to see if it should be a permanent program. V. ORAL COMMUNICATIONS None VI. CONSENT CALENDAR A. MINUTES of the Planning Commission meeting of September 4, 2012. Rec: By Minute Motion, approve as presented. B. REQUEST FOR CONSIDERATION of an extension for Tentative Parcel Map 36338 at Avondale Country Club. Case Nos. TPM 36338 / HTE 10-388 (Avondale Country Club, 75-800 Avondale Drive, Palm Desert; and RBF Consulting, 74-130 Country Club Drive, Suite 201, Palm Desert, Applicants) Upon a motion by Limont, second by Tanner, and 5-0 vote of the Planning Commission, the Consent Calendar was approved as presented. VII. CONSENT ITEMS HELD OVER None Vill. PUBLIC HEARINGS A. REQUEST FOR RECOMMENDATION to the City Council for consideration of modifications to the prior approvals for Villa Portofino (southwest corner of Portola Avenue and Country Club Drive) including: a conditional Certificate of Compliance to confirm the prior subdivision of a portion of property; a Tentative Tract Map; a modified Precise Plan; an amended and restated Development Agreement; architectural elevations for 72 new condominium units on Lot No. 5 of the proposed map; and an exception to the current moratorium to allow roof decks. Case Nos. DA 11-516, PP 98-21 Amendment No. 2, and TTM 36404 (VP Builders, LLC, 76-081 Fred Waring Drive, Palm Desert; and Country Club Drive Investors, LLC, 28071 Las Brisas Del Mar, San Juan Capistrano, Applicants). Commissioners Nancy DeLuna and Van Tanner recused themselves from law participating due to potential conflicts of interest. 2 GAPlanning\Monica OReilly\Planning Commission\2012\Minutes\9-18-12 min.docx MINUTES PALM DESERT PLANNING COMMISSION SEPTEMBER 18, 2012 Mr. Kevin Swartz, Assistant Planner, reported that on February 25, 1999, the City Council approved Ordinance No. 907 for a Senior Housing Development """ Agreement, a General Plan Amendment, a Change of Zone, and Precise Plan 98-21 for a health and wellness resort known as Villa Portofino. The project consisted of 161-bed skilled nursing facility, 150-bed assisted living facility, 288 villa units, and 182 casita units. In September 2000, the City approved a Parcel Map Waiver creating the 13-acre parcel along Portola Avenue. He displayed tract maps. He continued to report that sometime between 2001 and 2004, the previous property owner submitted a condominium plan to the Department of Real Estate without City approval. When recorded with the County of Riverside, the plan resulted in unapproved parcels that still exist today. In 2008, the developer reported that he sold the 13-acre parcel, including the Portola Avenue frontage required to be improved under the Development Agreement for the dedication of Portola Avenue. The property transfer was done without the approval of the City, which is required by the Development Agreement. Sometime after 2008, Royce International filed for bankruptcy and the unapproved parcels became bank-owned. The parcels were then sold to new owners. Mr. Swartz stated that today there are three owners: Country Club, LLC, owns the 13-acre parcel on Portola Avenue; VP Builders/Family Development owns a 9.63-acre parcel and a 22.6-acre parcel; and JJL Property Investments owns 11.21 acres. Over recent weeks, Family Development received a title report. The title report concluded that VP Builders/Family Development owns the common area within the 11.21-acre W parcel, and JJL Property Investments only owns the airspace for the 40 condos. He stated VP Builders/Family Development and Country Club Investors submitted an application to move forward. The original entitlements in regards to density, unit count, setbacks, building height (if roof decks are denied), and parking will remain the same as previously approved. The site consists of a clubhouse, 36 casita units, and 84 condominium/villas units. Mr. Swartz stated the two property owners are requesting to bring the property back into compliance by amending the Development Agreement to address issues including, but not limited to: ownership; amending the CC&Rs; construction of the temporary emergency vehicle access road (off of Portola and having to be installed before the next building permit issuance); a bonding for Portola Avenue and the secondary access road improvements, creating City approved parcels through a conditional Certificate of Compliance; Tentative Tract Map 36404; and coming to a conclusion regarding the unapproved pad height elevations on the 11.21-acre parcel abutting Casablanca. The Tentative Tract Map and Certificate of Compliance will approve prior subdivisions of the property that do not comply with the Subdivision Map Act today. The Tentative Tract Map will also include the dedication of Portola Avenue right-of-way. Prior to the recording of the final map, the owners will enter into an improvement agreement with the City to address the construction as outlined in Section 2.2.3 of the Development Agreement. The applicants would also provide an improvement bond for the WNW completion of Portola Avenue right-of-way and the secondary access 3 GAPlanning\Monica OReilly\Planning Comm ission\2012\Minutes\9-18-12 min.docx MINUTES PALM DESERT PLANNING COMMISSION SEPTEMBER 18, 2012 permanent improvements. The applicants have agreed to complete the bonded improvements within two years of when the Development Agreement and final map are recorded. In regards to the unapproved pad heights abutting Casablanca, in 2008 the City rescinded an approved grading plan when differences between the pad elevation shown on the precise grading plan and the mass grading plan were discovered. The proposed pad elevations on the rescinded grading plan range from 219 to 222 feet, which were much higher than the original mass grading plan elevations (ranging from 214 to 216 feet). During that time period, residents from Casablanca expressed their concern with the pad elevations to City staff and the City Council. Staff informed all parties interested in the project that the unimproved pad heights would have to be corrected before structures are constructed. Today the proposed preliminary grading plan attached to the tract map shows the pad elevations range from 215 to 217 feet. This is one foot to two feet higher than the 2000 mass grading plan. Staff's concerns with the proposed pad elevations arise from complaints driven by Casablanca residents, and from a drainage standpoint. The City Engineer states that the pad height elevations will drain appropriately. Earlier in the year, the applicant held a neighborhood meeting with Casablanca and Villa Portofino residents. VP Builders/Family Development notified the City that they have a signed agreement in place stating that Casablanca approves the proposed pad height elevations. Since JJL Property Investors owns a portion of that property and is not part of the entitlements, staff requested a letter from Casablanca acknowledging that they understand that construction or removal of the dirt may not commence within several years. Today the top of the dirt pad height ranges from 220 to 221 feet, and the proposed pad elevations would go to 215 to 217 feet. Mr. Swartz displayed photos of the pads. He indicated that the letter from Casablanca homeowners' association dated August 29, 2012, is attached to the staff report in support of the proposed pad height elevations, and acknowledging that Lot 2 may not be graded or constructed for several years. He stated that since receiving the letter, several residents from Casablanca reported that they still have concerns with the pad heights remaining at the unapproved height. Since JJL Property Investors owns a portion of the lot and is not part of the current application, the City cannot condition the applicant to restore the pad heights to the elevations shown on the preliminary grading plan until construction occurs. Casablanca does have an agreement with VP Builders/Family Development to stabilize and maintain the pads in the meantime. If dust control becomes an issue, the City will involve Code Enforcement. Mr. Swartz stated VP Builders/Family Development is proposing 72 condominium/villa units on Lot 5 of the Tentative Tract Map. He displayed a photo of the lots. He continued that on August 28, 2012, the Architectural Review Commission approved the proposed 72 condominium/villa units. The 4 GAPlanning\Monica OReilly\Planning Commission\2012\Minutes\9-18-12 min.dou MINUTES PALM DESERT PLANNING COMMISSION SEPTEMBER 18, 2012 applicants are proposing six buildings with 12 units per building, which is consistent with the existing approvals. The proposed buildings will be consistent and match the existing Tuscany architectural style. The stucco, wrought iron treatments, clay tile, and colors will be compatible with the current architecture. He noted that the original units were approved with covered carports. The applicant is proposing tandem garages per unit. In addition, the applicant is proposing the rectangular buildings to include two elevators each instead of one elevator. VP Builders/Family Development is requesting an exception to the current moratorium to allow roof decks on the proposed 72 units. On February 9, 2012, the City Council adopted Urgency Ordinance No. 1232 on the issuance of building permits, conditional permits, and other entitlements for construction of roof decks. Mr. Swartz explained that the City Council has always been adamant on maintaining privacy of residents. The building height of the proposed six buildings is 31 feet 2 inches, and is current to what is out there today. The building height with the proposed roof decks goes to approximately 36 feet to the top of the pitch. During the original public hearings, Palm Desert Greens residents were concerned with the height and privacy views of the buildings along Country Club Drive. Mr. Swartz reported that the applicant scheduled a neighborhood meeting for September 12, 2012, and invited residents from Palm Desert Greens and current Villa Portofino residents. The applicant provided a line of sight study showing a person standing on a roof deck looking towards the rear yard of Palm Desert Greens homes. Staff believes that privacy of the Palm Desert Greens residents would be adversely impacted. He stated that the applicant has new line of sight studies from the south, east, and west here today that they would like to show to the Planning Commission. Mr. Swartz communicated that based on the previous line of sight studies that the applicant submitted, staff believes that the proposed roof decks would pose a threat to the privacy of the neighboring residents and recommends that no exception to the moratorium be granted. He mentioned that two letters opposing the roof decks have been received. Mr. Swartz reported that there is also a letter from JJL Property Investors, and they are here to express their concerns to the Commission. Staff is recommending approval to the City Council for the modifications to Precise Plan 98-21, amended and restated Development Agreement, Tentative Tract No. 36404, a Conditional Certificate of Compliance, and 72 new condominium/villa units without the proposed roof decks. He offered to answer questions. Commissioner Connor Limont asked for clarification that the buildings would be 31' 2" with an elevated pad height of one to two feet. 5 GAPlanning\Monica OReilly\Planning Commission\2012\Minutes\9-18-12 min.docx MINUTES PALM DESERT PLANNING COMMISSION SEPTEMBER 18, 2012 Mr. Swartz responded no and displayed a photo of the location of the future casita units. He noted that the 72 condominium units are consistent with the existing villas at 31 feet in height. Commissioner Limont asked for clarification that the two-bedroom units would only have one parking spot per condo. Mr. Swartz replied yes. The condos and villas were approved for one parking stall, which is allowed since it is under the Senior Overlay Zone. Commissioner Roger Dash understood that there was one owner at one time, now there are three owners. The original plan was to have skilled nursing, assisted living, condominiums, and casitas. He asked if that's still the plan or are they talking about different lots. Mr. Swartz answered it is still the plan. What they are talking about is legalizing the parcels. The skilled living and assisted living were always approved for the 13 acres. The skilled nursing is to the north, and the assisted living is to the south. The project is proposed for 288 villa units and 182 casita units, which is consistent with the original entitlements. Commissioner Dash stated that the lots are owned by different people. He asked if they are all working together to provide the services as identified. Mr. Swartz responded two of the three property owners are working together. The third property owner is still looking at title reports and figuring out what he owns. At this time, the other two owners are moving forward. Chair Campbell declared the public hearing open and invited the Applicant to address the Commission on this matter, followed by any public testimony IN FAVOR or OPPOSITION. Mr. Rudy Herrera, VP Builders/Family Development, handed to staff 30 signed letters from the current Villa Portofino homeowners in support of the roof decks and the proposed project at Villa Portofino. He acknowledged and thanked staff from the Planning Department, Engineering Division, the Directors, the City Attorney, and the City Manager for working hard to put them on the Planning Commission agenda tonight. Mr. Herrera stated that this has been the most difficult entitlement process of his career. At the beginning of the entitlement process there were three property owners: VP Builders, JJL Property Investments, and Country Club Investors. They were working together to work out the various issues. However, Mr. Herrera stated, along the way JJL Property Investments, the owner of the 40 airspace units in Lot 2, went completely dark to VP Builders, Country Club Investors, and to the City in regards to mapping and the entitlement process. JJL Property Investments previously worked with them on a day-to-day basis up until the 6 &Planning\Monica OReilly\Planning Commission\2012\Minutes\9-18-12 min.dou MINUTES PALM DESERT PLANNING COMMISSION SEPTEMBER 18, 2012 issue of ownership of Lot 2 arose. It left the other two owners with no alternative but to move forward without JJL Property Investments. At this time, JJL Property Investments are not part of the Planning Commission process. They are not gaining or losing entitlement rights. Mr. Herrera communicated when they entered into the due diligence process to purchase the property, they knew there were issues that included: compliance with the Map Act, status of the Development Agreement, completion of the Portola Avenue improvements, CC&Rs compliance, secondary emergency access, maintenance agreements, traffic signal, landscaping, retention and drainage easements, Water Quality Management Plan, relations with Casablanca homeowners, and pad heights. He said the staff report was very well written and detailed. He stated that all the issues have been addressed and resolved. The only item they would like to discuss is the roof decks, which they will present shortly. Mr. Herrera stated with the Planning Commission's approval, this will be the first step in closing out a very long list of outstanding issues that has plagued the development for years. The approval would also give the City certainty on the public improvements, as well as life safety issues. He offered to answer questions, and requested to reserve the right to address any items that might be brought up during the public testimony. Commissioner Dash inquired who is going to be responsible for the improvements at the beginning of Country Club Drive and going south. Mr. Herrera answered VP Builders and VP Land will be bonding for those agreements with the City, and there is a separate agreement with Country Club Investors. From the time the final map is recorded, they will have two years to fully complete the Portola Avenue improvements. Upon recording of the final map, the dedication of the land would be given to the City. He added that they would be putting up completion bonds to complete the work. If they fail do so, the City will have bonds to call on to have the work completed. Commissioner Dash asked if the utility poles will be removed on Portola Avenue and if the street would be widened. Mr. Herrera responded that the street would be widened to the right-of-way, and the power lines would not be removed. He said the lines are not allowed to be undergrounded. Commissioner Dash noted that there are no power lines exposed on Portola south of the area; beyond Hovley there are no power lines. He asked where those lines are. Mr. Herrera replied that he did not know, but as you travel north the power lines do exist. He mentioned that due to the voltage the lines carry, they cannot be undergrounded. 7 G\Planning\Monica OReilly\Planning Comm ission\2012\Minutes\9-18-12 min.docx MINUTES PALM DESERT PLANNING COMMISSION SEPTEMBER 18, 2012 Mr. Vincent Barbato, VP Builders/Family Development, stated he is going to address the roof decks issue. He explained the redesign was a direct response to the market and market requests. The existing product did not have garages, and they have been told that residents prefer to have them. The existing residents also had floor plans that had certain issues, so they have addressed and corrected them as well. One of the greatest assets of the community is the views, but they realized not everybody gets to appreciate those views with the current design. Approximately 50 percent of the residents get to enjoy the views and by virtue of the floor plan the other 50 percent do not. The roof decks would allow all residents to enjoy the views. He explained that the units that are 12-plexes are compatible with the current 12-plexes that are there now. They have four units downstairs and eight units upstairs. Four of the units upstairs will face the view to the south, and the other four units to the rear will not. The units to the rear will face a retention wall. In order to give those residents a view, they designed the roof decks so they could also look to the south and enjoy the view. He said they designed the decks towards the rear of the building, which creates physical barriers that prohibit people from being able to look into other residences. He mentioned they completed line of sight surveys. He also mentioned when they met with Palm Desert Greens and current Villa Portofino to present the line of sight study, no one in attendance objected or raised questions. He displayed the line of sight study, and said that the distance between the two properties is 200 feet. He also presented photos from Google Earth showing the different im views from Villa Portofino and the side of the street into Palm Desert Greens. Mr. Barbato displayed new line of sight studies and gave a brief description of different views. He stated the study shows they are not affecting the privacy of any of the residents. Mr. Barbato noted the Architectural Review Commission supported and approved the roof decks. He asked the Planning Commission to support the roof decks and thanked them for their consideration. Mr. Barbato offered to answer any questions. Commissioner Dash asked Ms. Aylaian and referred to the ordinance that created the moratorium. He said there is a statement that says, "Notwithstanding any provisions of the Municipal Code to the contrary, no issuance of permit of any nature shall be approved or any request for roof decks within the 10 and a half months." He asked if that is in conflict with the request that they are faced with. Ms. Aylaian responded that the City Council can grant an exception to a moratorium. If the Planning Commission wanted to recommend the roof decks, their recommendation would go as part of the entire package for the City Council's review. The Planning Commission cannot grant an exception to the moratorium, but they can make a recommendation to the City Council that an exception be granted. Chair Campbell asked how many roof decks are on each building. 8 GAPlanning\Monica OReilly\Planning Commission\2012\Minutes\9-18-12 min.dou MINUTES PALM DESERT PLANNING COMMISSION SEPTEMBER 18, 2012 Mr. Barbato said each building has four roof decks and referred to the photo. Chair Campbell asked if all the tenants would have access to the roof decks. Mr. Barbato replied no. The only people that have access to the roof decks are the owners themselves. Chair Campbell continued with public testimony. She asked Mr. Tokheim to step up to the lectern, and stated to him that the Planning Commission received his letter. The letter states that he did not receive a notice of this public hearing, and requested staff to check if he was notified. Mr. Swartz stated that staff sent out a notice to owners of property within 300 feet of the surrounding area. He mentioned that he has not had a chance to go through the mailing labels to verify that a notice was sent to Mr. Tokheim. Some notices were returned, but the notice to Mr. Tokheim was not sent back. During the Public Hearing, he would go through the labels to make sure a notice was mailed out. Mr. Tom Tokheim, JJL Property Investments, stated that he did not receive a notice for this hearing, but that he has in the past. He communicated he has legal representation and consultants continuing to work on this project. There is a question on the ownership and a difference of opinion regarding the ownership. Mr. Tokheim mentioned he met with Mr. Swartz earlier in the day and received a copy of the notice and staff report. At that time, he showed Ms. Aylaian and Mr. Swartz information from his title company and his lawyer. He stated that the tax bill he received indicates that the parcel (Lot 2) is 11.48 acres and not 11.21 acres, as presented on the photo. Correspondence he has received since closing escrow in February 2010 also references 11.48 acres. Mr. Tokheim said Mr. Swartz mentions ownership in his staff report, and that there is an agreement within the City and the other organizations as far as what the title is. As he reviews the grant deeds, it definitely talks about real property but he has heard tonight by two individuals about airspace units. He said he is not sure if people are in agreement that it is airspace units or part of the parcel or the entire parcel. There is a question as to the ownership of the entire parcel, and he assured the Planning Commission that he has been receiving all the notices and the tax bills that show the 11.84 acres. He stated that no information has been shared with him or his partner regarding the Tentative Tract Map application. They were part of the project up until the question of ownership was raised. It came to his attention sometime in June, and there was a dormant period from April till mid June. He stated that over the summer and through vacations with a couple of different attorney firms, consultants, and title companies they have been working around vacation trying to clarify ownership. They have not opted out of any map application, they are continuing to finalize the results of their inquiries. He stated that he wished his attorneys and his civil engineers were at the meeting tonight, and 9 GAPlanning\Monica OReilly\Planning Commission\2012\Minutes\9-18-12 min docx MINUTES PALM DESERT PLANNING COMMISSION SEPTEMBER 18, 2012 wished they had everything nailed down. He stated there is a question on the ownership of the entire 11.21 or 11.84 acres. What he saw today in the Tentative Tract Map application was that there is an irregular rectangle parcel on the right side sectioned off, and part of another parcel is taken up. He stated until the ownership issue is resolved, he does not know how that could be done. Aside from the ownership issue, he or his partner have no understanding of what separating the parcels would have on their ability to develop it in the future. He said he could tell from the discussions tonight there are other agreements in place with regards to the parcel or part of the parcel that they are not knowledgeable of, and have no understanding with regards to pad heights, clean up, and stabilization. Mr. Tokheim feels that they have a right to understand what the agreements are for this parcel. Chair Campbell interjected and asked the City Attorney if they could move forward or if the item needed to be continued. Mr. Dave Erwin, City Attorney, responded that there is discretion with the Planning Commission to move forward. They have looked at the ownership issue, and they have not seen anything that would indicate that Mr. Tokheim is owner in fee in this. There is some question about his ownership. Mr. Erwin stated that he does not believe there is anything that would keep the Planning Commission from making a recommendation to the City Council at this time. That ownership issue, if there is a problem and a question, will be resolved before anything is done on the property. Chair Campbell asked if Lot 5 is the one in question for this evening. Mr. Erwin replied that is correct. Mr. Mark Greenwood, Director of Public Works, clarified the map before the Planning Commission tonight does include Lots 1 through 5. It sets pad heights on those lots, and they are not just talking about Lot 2 or Lot 5. Commissioner Limont asked Mr. Greenwood in regards to the heights of the other parcels that are one to two feet above grading, would they also be included as part of the approval tonight. Mr. Greenwood responded that was his understanding. The pad heights were established in the Planning Commission packet that is before them tonight. Ms. Aylaian requested for Mr. Swartz to address the pad heights. She stated they left a range of pad heights that would allow for a couple of feet of latitude for parcel No. 2. 10 GAPlanning\Monica OReilly\Planning Commission\2012\Minutes\9-18-12 min.dou MINUTES PALM DESERT PLANNING COMMISSION SEPTEMBER 18, 2012 Mr. Swartz stated the actual range is on parcel No.1, which is located in the Planning Commission packet labeled sheet No. 3A, and Lot 2 is on sheet No. 4. Mr. Tokheim recommended that this item be tabled for 30 days until the ownership issue is settled, and reports and documents could be reviewed. He would like to understand why time is of the essence. The project has had a lot of issues over the last 12 to 13 years, it had a lot of missed steps, there have been failed banks, and other things that went on. He would think the last thing the Planning Commission would want to do is take some steps to move in a different direction, and then have to back up in 30 or 60 days. He asked what is lost by another 30 days until this could be resolved. Chair Campbell referred Mr. Tokheim's question to the City Attorney. Mr. Erwin stated that the discretion is with the Planning Commission. He frankly does not believe the property issue would be resolved in 30 days. Information indicates that Mr. Tokheim has an ownership of airspace from the documents they have seen so far. This is an issue that has been dealt with for a period of time, not just the last few weeks. It has been several months going through documentation and that is the conclusion of the City Attorney at this time. Chair Campbell clarified if the Planning Commission could move forward. Mr. Erwin suggested moving forward. Commissioner Dash asked the City Attorney what is meant by airspace ownership. Mr. Erwin replied that he could explain as much as he can. He stated that he does not understand airspace. In condominium developments, you can create airspace that is owned. Commissioner Limont inquired if the airspace would limit whoever builds after this. For example, if you have a roof deck and you say I can see so much, and then the next development comes in and they say, you can't build that height because you are taking up our airspace. Mr. Erwin stated that the airspace is within the unit itself. Mr. Swartz stated for the record that he had just reviewed the project files, and that Mr. Tokheim's name and address is on the mailing labels for the legal notices, so he is not sure why he did not receive a notice. In the future, staff will make sure he receives a notice. 11 G\Planning\Monica OReilly\Planning Commission\2012\Minutes\9-18-12 min.docx MINUTES PALM DESERT PLANNING COMMISSION SEPTEMBER 18, 2012 Chair Campbell also clarified that the notice was not returned. Mr. Swartz answered that was correct. Ms. Diana Plotkin, 73-730 Calle Bisque, Palm Desert, addressed the Planning Commission and said she is not a full time resident; she's here six months out of the year. She congratulated the developers for doing a wonderful job, but she has three major concerns: 1) the dedication of Portola Avenue. She hoped that the developer would take out the construction completion bond so they could finally get the Portola rights to Palm Desert. That way it can be straightened out and have sidewalks installed. She stated that she has lived there for 12 years, and they have been waiting for that length of time. The corner is very dangerous. They have seen crashes and drunks drive up onto the property. She has been in touch with the Planning Department regarding the dedication of Portola Avenue; 2) the roof tops. If the roof tops are approved, people will go up to the deck to maybe sunbathe and turn on their radio or just to talk. You will be able to hear the noise all over, which will radiate to Palm Desert Greens and Casablanca. In addition, the roof decks will take away the view from people that have views today in order to give new people views. It will decrease the property values for those that will be affected by the sight. With the moratorium, the roof decks should not be considered at this time. It is an impact to the quality of life for the rest of the people who live in the area; and 3) the third issue is the berm. The berm has existed since Villa Portofino started to build. It is seven to eight feet higher than the code requires. She personally has chased people off the berm who have tried to climb over into Casablanca. She knows for a fact that condos in Casablanca that are closer to Monterey have been burglarized, although they can't say it is because of the berm, but the fact remains it is dangerous. She voiced that the berm should come down, and it should come down now. It should be no higher than the code requires, which is the law. The berm is illegal, and she would encourage before any permits are issued that the Planning Commission order them to reduce the berm to code. She thanked the Planning Commission. Ms. Gail Christiansen, 73-820 Calle Bisque, Palm Desert, addressed the Planning Commission and said she is the president of the Casablanca homeowners' association. She commented that Mr. Tokheim was talking about the pad elevations, and the Planning Commission's vote might impact on Mr. Tokheim's elevations. Her understanding is that the City Attorney has filed against that property. If there is change of ownership of any type or before anything is started development-wise, he must bring those elevations down. She feels that is a moot point. She doesn't see how that is an issue for Mr. Tokheim. She stated that she has met several times in the last year with Family Development. They have had numerous conversations over the phone and email, and negotiating for a year. Family Development has signed an agreement with Casablanca that is recorded on the property and that 12 GAPlanning\Monica OReilly\Planning Commission\2012\Minutes\9-18-12 min.dou MINUTES PALM DESERT PLANNING COMMISSION SEPTEMBER 18, 2012 addresses the concerns of soil stabilization, maintaining the property, the elevations of the property, and setbacks. For a majority of the Casablanca homeowners, issues have been addressed by Family Development. Casablanca supports their endeavor to start development of this property. The bottom line is that all the issues will be gone once the property is built out. Once built out there will no longer be issues with elevation, sand blow, and tumbleweeds. Ms. Margaret Marshall, 403 San Michelle, Palm Desert, commented that she is representing Villa Portofino's members. She stated she faces Portola Avenue and does not have the gorgeous views. Villa Portofino has fabulous views, and they feel like they are in Italy when driving into the development. The members are thrilled to have Family Development with them. They are pleased on how they are addressing different issues, and would like to see the project started. She mentioned that she does have one issue, which is if you are facing Portola Avenue there is a wire fence that has an ugly green cover and an unfinished road in front of the fence. Ms. Marshall requested that all owners would agree on completing the road and building a permanent structure when they put in the new access from Portola Avenue into Villa Portofino. She stated people would like the roof decks, and it would also be visually attractive. Ms. Marshall thanked the Planning Commission. Mr. Herrera apprised the Planning Commission regarding the "berm" that VP Builders, VP Land, and Family Development has entered into a maintenance agreement with Casablanca to maintain the dust, weeds, and to keep it from becoming unsightly until it is developed. He noted that they would be covering the cost for the maintenance. He said when the site is presented for development; the issue of that pad heights would be addressed per the Tentative Tract Map. Staff, themselves, and Casablanca support the pad heights that are being proposed to the Planning Commission. Mr. Herrera stated in light of Mr. Tokheim's letter and Mr. Swartz's acknowledgment that he was noticed, their (Family Development's and Tom Tokheim's) attorneys exchanged a conversation last week notifying him as well, and he indicated that his attorney was not going to be present. His attorney did not know if Mr. Tokheim was going to be at the meeting so the letter was a shock. He said they were working together up until the ownership became an issue, and they had no choice but to move forward. He encouraged the Planning Commission to move forward in light of the City Attorney's comments. This ownership issue has been very well known for several months, and if there was clarification or any documents that would prove otherwise he is sure they would be there during the hearing, yesterday, or when they knew about it. He does not think this is the forum for ownership issues; they are here to process the Tentative Tract Map, the Conditions of Approval, and the Resolution. Mr. Barbato emphasized the views and property values of residents would not be affected. They are building the two-story residences where they were 13 GAPlanning\Monica OReilly\Planning Commission\2012\Minutes\9-18-12 min.docx MINUTES PALM DESERT PLANNING COMMISSION SEPTEMBER 18, 2012 already approved and where they currently are. He noted that no two-story residences are approved to be built along the Casablanca borders. He stated they do not want to impose their will on anybody, and they have tried to embrace everybody's concerns, feelings, and sensitivities and incorporated them into what they have done. He thanked the Planning Commission for their support. With no further testimony offered, Chair Campbell declared the public hearing closed. Commissioner Limont requested a clear understanding in regards to the packet, if they were to approve as proposed, she asked if the pad height elevations on the 11.21-acre parcel are separate or part of it. She said the staff report states, ". . . the unapproved pad heights will have to be corrected to the original pad heights approved on the 2000 mass grading plan before structures are constructed thereon." Mr. Swartz responded that the pad heights would have to come down. Currently they are about 220 to 222 feet. On the preliminary grading plan, which is attached to the Tentative Tract Map, the proposed pad heights are 215 to 217 feet. When construction does occur, the pad heights would have to come down to those elevations. Commissioner Dash commented that he is willing to move forward with the Resolution, if he is reading it correctly. He clarified that staff is supporting the project as presented, but not supporting the roof decks. Ms. Aylaian replied that was correct. Commissioner Dash stated the only change he would like to see done is the Portola dedication, but the response is that it cannot be done. He would not delay any activity for that matter. He also stated the roof decks are under investigation and/or study by City staff, and he feels it would be inappropriate for the Planning Commission to make a recommendation when it is being studied by staff. Staff has a broader understanding of the values, the virtues, and the liabilities of roof decks throughout the entire City. Therefore, he would have to wait until they have some resolution or recommendation from staff. If he as a Commissioner voted one way or the other, it is going to have an influence on what staff would do and he would not want to put that burden on staff. He stated he agrees and supports the Resolution as prepared. Commissioner Limont stated the Villa Portofino project was difficult simply to read so she could only imagine the work and the efforts necessary by staff to get to the place they are today. To say that previous staff, City Council members, and Commission members with her included, missed on this too project is an understatement. As a City, she feels they really blew it. They 14 GAPlanning\Monica OReilly\Planning Commission\2012\Minutes\9-18-12 min.docx MINUTES PALM DESERT PLANNING COMMISSION SEPTEMBER 18, 2012 allowed a developer to do basically what they wanted to do without the City's approval, and then walk away under the protection of bankruptcy, leaving both the lender and the City in this mess. At this point it makes sense to provide reasonable guidance to the new owners to move forward in a positive fashion; however, it does not mean compromising ordinances and making decisions that, like previous ones associated with this project, will come back to haunt existing neighbors, as well as the City and staff of Palm Desert. The roof decks are not a necessary part of the design and not currently allowed with new construction in the City of Palm Desert, and cause an extension past our City height limits. Therefore, she agrees with staff's recommendation to approve this proposal without allowing roof decks. Chair Campbell concurred with the other Commissioners and staff regarding the roof decks. The other buildings in Villa Portofino are excellent the way they are, and she does not feel they should be different from the other buildings. In addition, there is a moratorium and the Planning Commission should not go against that. Commissioner Dash moved, by Minute Motion, to waive further reading and adopt Resolution No. 2592, without allowing roof decks and subject to conditions. Motion was seconded by Limont and carried by a 3-0-2 vote with DeLuna and Tanner ABSENT. Chair Campbell congratulated the applicant, and the City looks forward to having the condominiums built. IX. MISCELLANEOUS A. UPDATE OF THE MASSAGE ORDINANCE Ms. Aylaian stated she will provide information on how the City currently controls massage establishments, massage therapists, recent changes in State law, and how staff proposes to accommodate the new laws. It will make a difference on how business is done at the Planning Commission. She warned the Planning Commissioners that they might not be comfortable with some of the items being recommended because it is a change from what has been done in the past. There are reasons why the City cannot continue doing what it has been doing, and Ms. Aylaian noted massage regulation in the City is complicated. Ms. Aylaian stated that there are four ordinances that are involved. The City controls the massage establishment itself under one chapter. It controls the therapists and their licensing in a second chapter. It issues businesses licenses in a third chapter. The fourth piece is the Land Use Element, which is what the Planning Commission deals with, and the only part that applies to massage is the Conditional Use Permit processes under Title 25. 15 GAPlanning\Monica OReilly\Planning Commission\2012\Minutes\9-18-12 min.docx MINUTES PALM DESERT PLANNING COMMISSION SEPTEMBER 18, 2012 One chapter of Title 5 governs massage establishments: it tells where they are permitted (what zones they can be in); it defines the building requirements (door locations, plumbing, parking, and access); it deals with operating requirements (hours of operation, how you have to conduct business, keep logs), it deals with exposing and touching (prohibiting therapists from exposing themselves or exposing their clients and touching them in the genital area or other ways that are inappropriate); it deals with the permitting process (what you need to do to operate your establishment); and it deals with inspections, which allows the City to inspect these business. Another chapter of Title 5 contains the requirements for the therapists. It starts with a detailed background check and proof of education, then it goes back to exposing and touching. It requires identification badges and particular dress to keep therapists more clinical, and it has a very detailed permit process that describes how each therapist needs to be permitted. For the business license section of the municipal code, there is a simple application requirement with a nominal fee. For land use, the fourth section of the municipal code impacting massage, she noted Title 25.72 regulates the Conditional Use Permit (CUP) process, but does not mention the word massage anywhere. With Title 25, the City looks at parking, hours of operation, and compatibility with neighbors. This four-part system, which involves a public hearing in front of the Planning Commission, is what the City has been doing for a long time, but there's a new State law that prohibits that. If a massage therapist or a business is t,„ licensed through California Massage Therapy Council (CAMTC), the City no longer controls the four areas just mentioned. They no longer control the therapists licensing (done by CAMTC), they do not control Land Use (removed all together), and they do not control the massage establishment. It only leaves the City with business licensing, which is purely ministerial. It does not give the City much control. The new legislation has taken away all the controls that typically the City had. Ms. Aylaian stated the CAMTC has been in existence since 2009, but staff has not modified the ordinance because they were not certain how the CAMTC operated, if they were funded, what there were able to do, and staff did not have confidence on the services they would provide. She stated CAMTC has come a long way in the last couple of years. They were created by the State legislature to create voluntary certification for Certified Massage Therapists (CMTs) and Certified Massage Practitioners (CMPs), to ensure training of CMTs and CMPs, and increase education and training standards. The CAMTC can do a better job than the City at investigating schools issuing diplomas, suspending certification in six hours, preparing declarations for use in court, and monitoring the Department of Justice arrest reports from across the country on a daily basis. Ms. Aylaian said staff will be proposing a revised approach that would be consistent with the State law and would draw more heavily from CAMTC and the things they have to offer. The City would rely on the CAMTC for the certification of individual therapists. The City would also rely on CAMTC for the issuance, renewals, suspensions, and revocations. A 16 GAPlanning\Monica OReilly\Planning Commission\2012\Minutes\9-18-12 min.docx MINUTES PALM DESERT PLANNING COMMISSION SEPTEMBER 18, 2012 revocable City Registry would give the City the ability to do inspections of massage businesses, receive additional information on the general business and corporation, and the ability to revoke their registration. Therapists would need to have both a CAMTC certification and City registration in order to practice massage. The City would be able to investigate and do background checks for anyone that owns more than five percent in the business. For enforcement, they would be able to do business inspections and enforce registration suspensions and revocations; certification enforcement would be through CAMTC. The next step is taking to the City Council for consideration to change two of the chapters under Title 5. One chapter would address the therapists, and the other chapter would address the business establishments to make those consistent with the new State law. Staff would only come back to the Commission to identify and to approve an ordinance saying in which zones massage establishments are permitted. She asked the Planning Commission if they had any questions. Commissioner DeLuna stated she is not pleased with the State taking over something that the City has had control of. She said the State is understaffed, overworked, underfunded, and they have no vested interest in any of the individual municipalities. They have no real reason to be as invested in the process down here from Sacramento or wherever their regional office is located. She said she heard a lot of what Ms. Aylaian say is that the State can do this, the State can do that. She does not hear where they will routinely investigate. It sounds like the City is giving up control of a process that the City has made very efficient and has worked. She asked if the Conditional Use Permit or Land Use Element is being removed from the licensing process. How would the City maintain control and uniformity? Ms. Aylaian stated that the CAMTC is not the State. They are an independent organization. She said when she mentions State, it is a statewide certification but not issued by the State. The State does not do the background checks, revocations, or the suspensions. She believes the CAMTC is privately funded from their fees. Commissioner DeLuna asked if the CAMTC is self regulating. Ms. Aylaian responded she does not have an answer, but would look into it. She stated the CAMTC is more deeply staffed and funded than the City for doing background checks, sting operations, and investigating the educational institutions that are providing the credentials. She mentioned staff saw a presentation from CAMTC, and they are almost exclusively retired vice cops from Los Angeles that are doing the background checks and investigations. Commissioner DeLuna asked if the CAMTC has a local office. .. Ms. Aylaian replied they do not. 17 GAPlanning\Monica OReilly\Planning Commission\2012\Minutes\9-18-12 min.dou MINUTES PALM DESERT PLANNING COMMISSION SEPTEMBER 18, 2012 Commissioner DeLuna inquired where the closest office is located. Ms. Aylaian said she believes they do everything out of Sacramento, but could not be certain. Commissioner DeLuna asked if the Police Department is satisfied with this new process. Ms. Aylaian said yes. The Police Department has been involved with CAMTC, and it is their recommendation as well. She commented it is regrettable that the City does not have the power, but it is not something the City is giving away. It is legislation that has already been written which says that local jurisdictions cannot require licenses, they cannot make requirements on these businesses or individuals if they have gotten their license through CAMTC. It also says that Local jurisdictions cannot require Conditional Use Permits. Commissioner Tanner interjected that it sounds like a contract even though the City is not paying for it. The City is using a contract type of vendor to take care of the City's problems. The City is not really saying they are going to do away with the problem, it is just saying we will have an opportunity to present it to a different staff and different control system. He stated the City still has ordinance and zoning issues that they could still enforce. Ms. Aylaian clarified that massage establishments would be able to open their doors in whatever zone. She explained that the City would not be able to require anything different from a massage therapist than a chiropractor, nutritionist, or cosmetologist. The one question she does have for the City Attorney is the concentration of businesses. When they were looking at tattoo businesses, tattoo businesses do not require separate licenses. They looked at radius distances or some way to govern, from a fiscal stability standpoint, the City did not rely too heavily on any one type of business for revenue. Mr. Erwin stated they are still looking at that issue. Commissioner Dash asked if CAMTC would be charging the City a fee. Ms. Aylaian responded cities do not get charged for services that CAMTC provides. Commissioner Dash inquired where funding comes from. Ms. Aylaian stated she believes it comes from the massage therapist license fees. Commissioner Limont asked if there is an issue, how quickly is the response time. 18 GAPlanning\Monica OReilly\Planning Comm ission\2012\Minutes\9-18-12 min.docx MINUTES PALM DESERT PLANNING COMMISSION SEPTEMBER 18, 2012 Ms. Aylaian responded the first call is to CAMTC, and worst case if it is over a three-day holiday weekend, it might take them up to 48 hours to revoke a certificate so they could not practice anywhere in the State. She noted that it would take considerably longer to revoke a Conditional Use Permit. Commissioner Tanner inquired if the City is able to do sting operations with the City's Police Department. Ms. Aylaian responded the City has done that in the past. Commissioner Tanner asked if the City has to use CAMTC for sting operations. Ms. Aylaian said the CAMTC sting operations are focused on the institutions issuing credentials and diplomas. Commissioner Tanner asked if there is an illegal operation, the City would go in and bust them. Ms. Aylaian responded that the Police Department would continue to enforce. Commissioner DeLuna stated that they have not allowed certain type of massage establishments. She asked if that opens the door saying that they could now have massage establishments. Ms. Aylaian responded the door has already been opened by the State; the City has not reflected that in the municipal code. Commissioner Tanner asked if they don't have a choice. Ms. Aylaian replied that was correct. Commissioner DeLuna inquired if they could affect the zoning so they are only allowed in certain zones. Ms. Aylaian responded that would be their intention. X. COMMITTEE MEETING UPDATES A. ART IN PUBLIC PLACES None B. PARKS & RECREATION None 19 G9Planning\Monica OReilly\Planning Commission\2012\Minutes\9-18-12 min.docx MINUTES PALM DESERT PLANNING COMMISSION SEPTEMBER 18, 2012 XI. COMMENTS "" Ms. Aylaian commented that staff believes there will be a Planning Commission meeting on September 18. XII. ADJOURNMENT Upon a motion by Campbell, second by DeLuna, and 5-0 vote of the Planning Commission, Chair Campbell adjourned the meeting at 6:31 p.m. SONIA CAMPBELL, CHAIR ATTEST: LAURI AYLAIAN, SECRETARY PALM DESERT PLANNING COMMIS ION 20 G:\Planning\Monica OReilly\Planning Commission\2012\Minutes\9-18-12 min.docx