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Planning Commission Meeting Minutes
WEDNESDAY SEPTEMBER 14 , 2005 4:00 & 7:00 P.M.
CALL TO ORDER: The meeting was called to order by Chairman at 4:03 p.m.
PRESENT: Chairman Griffin, Commissioners Bailey, Fitzgerald, Francis, Hart
ABSENT: Commissioner Francis, Commissioner Stopper, Commissioner Savage
STAFF PRESENT: Chief Planner Rosen, Senior Planner Mullis, Assistant Planner Sowers, Engineering Director Hoppe, Senior Civil Engineer Voronel, Associate Planner Eastman, and Recording Secretary Baker
FLAG SALUTE: Chairman Griffin
MINUTES: MOTION by Commissioner Fitzgerald, seconded by Commissioner Hart and CARRIED by a vote of 3 - 0 that the Minutes of August 10, 2004, be APPROVED as written. (Commissioner Bailey abstaining).

Commissioner Hart requested:
page 170 the last paragraph "asked if" be removed
page 181 "an unsafe" replace "a wrong" in the fourth paragraph.

MOTION by Commissioner Hart, seconded by Commissioner Fitzgerald to APPROVE the Minutes from August 24, 2005 as AMENDED. Passed by a vote of 3 - 0 (Commissioner Fitzgerald abstaining).

4:00 P.M. SESSION

ITEM A
FOX THEATER UPDATE


A presentation by the Fullerton Historic Theatre Foundation. Todd Huffman, President of the Fullerton Historic Theater Foundation, gave a Powerpoint slide presentation and also a short video presentation showing the progress on the restoration of the Fox Theater. He gave a history of the fundraising, the volunteers, the in-kind donors, and various other donations. He told the Planning Commission that Westlake, Reed, and Leskosky are the architects chosen for the restoration. He discussed the feasibility study, demographics, and a market analysis and operational performance study showing a successful future. Mr. Huffman said that the theater will be used often for community purposes and talked about upcoming events.

Chairman Griffin asked Mr. Huffman for a copy of the feasibility study.

Commissioner Bailey asked how the board was structured. Mr. Huffman explained that it is a working board with no paid members. They currently have six men and will be adding two women. He foresees a board of 11 to 13 members in the future. There will be an executive director hired who will report to the board as an employee.

Commissioner Bailey asked for a copy of the National Historical Registry document.

Chairman Griffin encouraged Mr. Huffman to return with updates and was very impressed with the presentation and the work accomplished to date.

ITEM B
ZONING CODE WORKSHOP. Staff presentation pertaining to the zoning code.

MOTION to continue to a date uncertain by Commissioner Bailey, seconded by Commissioner Fitzgerald and passed by a vote of 4 - 0.

7:00 p.m. Session

The following item was heard out of order because of a mix up in advertisement.

ITEM NO. 2
PRJ04-00238 - LRP04-00007. APPLICANT AND PROPERTY OWNER: LSF II FULLERTON.
A request to amend Amerige Heights Development Agreement DA-00-01 to provide an extension of time to complete certain public facilities in the Amerige Heights Specific Plan, including the Amerige Heights Community Center and Barrett Park (Trailhead Park). The Amerige Heights Specific Plan is generally located north of Malvern Ave, east of Gilbert St, south of Pioneer Ave, and west of Bastanchury Road (Specific Plan District) (Previously certified EIR) (Continued from August 10, 2005

Chief Planner Rosen presented the staff report dated September 14, 2005 regarding a fourth amendment to the Amerige Heights Development Agreement. He gave a history and background of the project. He explained that the entire amendment had been revised. He told the Commission that the community center was originally planned to be completed by June, 2004 but because of funding complications, staff recommended putting the construction on hold. Staff recommended temporary park improvements of grass and trees to enhance the area which had weeds, is unsightly, and is fenced off. The Amerige Heights Homeowners' Association currently maintains the parks in the neighborhood. They are privately owned, but have a public access easement so that the general public can use the space.

Chief Planner Rosen explained that the park funds originally allocated for the Amerige Heights Community Center could be used for any public park purpose within the city. Chief Planner Rosen said that the City Manager is committed to building a community center at the proposed location. Chief Planner Rosen also discussed the design costs, operational costs, and that further discussion is needed regarding the construction of the facility needed.

Staff recommended adopting the resolution recommending to the City Council approval of amendment #4 to the Amerige Heights Development Agreement DA-00-01.

Chairman Griffin asked Chief Planner Rosen to explain why the Development Agreement is being reviewed.

Chief Planner Rosen explained that by State law the development agreement is required to be reviewed and considered by the Planning Commission and a recommendation made to the City Council. Any change to the agreement requires a review by the Planning Commission and the City Council would be the final approving authority. Staff recognized that there were serious concerns about how to fund the completion without sufficient funding and also how to fund ongoing operations of the facility.

Chairman Griffin asked about the funding source. Chief Planner Rosen said that it was funded by the issuance of bonds through a community facilities district, formed by the Elementary School District. The developer paid a lump sum of approximately $8,000,000 to the City, which was deposited and retained for building Bastanchury Park and the Amerige Heights Community Center.

Chairman Griffin asked if the funding was described in the original development agreement. Chief Planner Rosen answered affirmatively.

Public hearing opened.

Mark Elliott, Amerige Heights, resident and President of the Amerige Heights Homeowners' Association spoke to these matters:
  • The community is interested in the time extension because they are not clear if the City intends to build the center at all.
  • He met with Community Services staff and discussed possible uses, programming ideas and the challenges of building in a residential area.
  • Construction costs will increase and limitations might be placed on the budget.
  • Original concepts have changed as staff has changed.
  • Residents are mindful of the CFD funding, special taxes, and maintenance costs for public parks
  • There is a mix of public and private streets.
  • He requested more information on the time frame for the interim park.
  • He was concerned with the maintenance of the interim park without realizing the cost to homeowners to insure and maintain it.
  • He requested that existing funds be set aside for the community center.
  • The proposed amendment was unacceptable.
  • He had a petition expressing support for the community center within the community.
Chairman Griffin reiterated the concerns stated by Mr. Elliott. Mr. Elliot was concerned that if the project is postponed without a completion date and funding is not set aside, it would not be built.

Dr. John Chen, resident of Amerige Heights, treasurer and a board member of the Homeowners' Association, was concerned with the legality of using private funds for a public piece of land and also the liability issues.

Kerry Zen, Amerige Heights resident, asked the Planning Commission to get feedback from the residents of Amerige Heights before constructing the community center.

Public hearing closed.

Chairman Griffin spoke about:
  • Whether the Planning Commission had the right to modify the proposed Development Agreement
  • Segregating funds so they would only be used for Amerige Heights
  • The construction time line
  • Maintenance of the interim park
Deputy City Attorney Jee stated that the Planning Commission could recommend making changes to the Development Agreement. The developer was required to build according to what is written in the Development Agreement. After construction, the City will refund the developer for the funds already paid. The only concern she had was whether or not the Development Agreement needed to terminate.

Chief Planner Rosen stated that when the last home was sold and the public improvements are completed, there would be nothing else to be implemented in the Development Agreement other than building the community center. He said that if there is a specific time frame imposed, staff would need to meet with the developer.

Deputy City Attorney Jee asked if this would be practical from a planning standpoint. Chief Planner Rosen said that staff's preference would be to fix the problems with the deadlines that have lapsed. He suggested that the Planning Commission recommend to the City Council to publicly commit to construct the facility, direct staff to segregate the funds for Amerige Heights Community Center, and notice the public if the monies would be reprogrammed and used somewhere else.

Chairman Griffin felt the City should maintain the interim park, the funds should be segregated for a future community center, and the City Council should either commit to build the center or have a hearing as to where the funds would be allocated.

Commissioner Fitzgerald agreed with the segregation of funds. She felt that the City owed the residents a goodwill gesture. She asked about the park maintenance issue.

Chief Planner Rosen said that it was agreed upon since all the parks in the area were maintained at such a high level by the Homeowners' Association they would want to keep the same standards. He felt that the liability issue could be negotiated between Risk Management and the Homeowners' Association Board. He felt there would be minimal additional costs to the Homeowners' Association to maintain the interim park space. He said that the developer would not object to the City taking over the maintenance.

Commissioner Hart asked if this Development Agreement would relieve LSF of their obligation and would that be desirable. Chief Planner Rosen answered affirmatively. Commissioner Hart felt that the developer should honor the agreement because it would be more difficult and costly to find another builder to build the community center.

Commissioner Bailey felt that the residents had expectations and should be provided with a community center built by the developer.

Chairman Griffin felt it was not in the purview of the Planning Commission to decide the funding of the project.

Chief Planner Rosen said that if a substantial amendment to the draft agreement was proposed, staff would have to re-advertise.

Chairman Griffin considered continuing the item to allow staff to meet with LSF II and the Homeowners' Association. He felt that LSF II should keep the obligation to build, a date should be set for the completion of construction, and the funds should be segregated.

Commissioner Fitzgerald felt it was important to set a date, not continue to a date uncertain. Staff agreed and said that it could be continued to October 12, 2005.

MOTION by Commissioner Fitzgerald, seconded by Commissioner and passed by a vote of 4 - 0 to continue this item to October 12, 2005.

Deputy City Attorney Jee reminded the commission that the fees paid were part of the park fees for development of parks throughout the city. She did not know what representations were made to the prospective homeowners. Chairman Griffin felt that since a Development Agreement was established that earmarked the funds for a specific use, the City is obligated by contract to fund the two facilities. Deputy City Attorney Jee said that the revisions were made to the Development Agreement with the legal understanding that the City had the ability to propose that because it was general park fees.

ITEM NO. 1
PRJ05-00322 - ZON05-00031. APPLICANT: ASH STREET VENTURES, INC. AND RICK BLAKE; PROPERTY OWNERS: KATHERINE A. GOSSELIN.

< A request for a Conditional Use Permit to operate a bar use - Type 48 ABC License (On-Sale General - Public Premise) at an establishment currently operating as a restaurant with a full liquor license - Type 47 ABC License (On-Sale General - Eating Place) on property located at 1189 East Ash Avenue (north side of Ash Avenue between approximately 50 and 110 feet west of Raymond Avenue) (C-M zone) (Categorically exempt under Section 15301 of CEQA Guidelines) (HSO) (Continued from June 22, 2005).

Assistant Planner Sowers presented the staff report requesting a CUP. The applicant currently has an ABC Type 47 license under which it operates a restaurant which serves full liquor. The proposal is to change the license to an ABC Type 48 bar use. This would allow the applicant to eliminate the requirement to have a restaurant. It would also allow the age to be restricted to 21 or older, which does not exist under a restaurant license. An aerial view was displayed, along with the site plan.

Assistant Planner Sowers stated that the current establishment is governed by the provisions in a consent decree, which was established between the previous owner and the City. Staff reviewed the terms of the consent decree to verify compliance. Staff verified that the interior of the space was accurately reflected in the floor plan that was displayed. The parking lot had been re-striped in stall sizes not meeting City standards and staff recommended that the parking stalls return to the original configuration approved under the consent decree.

Ms. Sowers told the commission that the consent decree required 58 spaces both on-site and off-site. The site can accommodate 20 spaces and there is an agreement for the 41 remaining off-site spaces.

Staff highlighted several recommended conditions of approval: re-striping the parking lot and alcohol training for staff. Staff noted that the CUP is subject to revocation if the use receives three or more complaints or if the Planning Commission finds that the use is detrimental to public health, safety and welfare or injurious to properties in the vicinity. The bar use is consistent with the zoning and General Plan, and, as conditioned, the use will be reasonably compatible with the surroundings. Staff also recommended that the Planning Commission approve the resolution.

Commissioner Bailey clarified for the audience that the Type 47 license does not require a CUP but that the Type 48 does, which gives staff and the Planning Commission more options if the business becomes a nuisance.

Commissioner Fitzgerald asked staff is there were other restrictions under the current consent decree. Assistant Planner Sowers answered affirmatively stating that there were restrictions regarding the proximity of patrons to employees, the level of dress of employees, the hours of operation, and parking. There was a provision that patrons be 21 or older.

Public hearing opened.

Applicant, Rick Blake, attorney and representative of the business owner, said that the purpose for the change was strictly for the age restriction. Currently 18 year olds are allowed inside the restaurant and have claimed discrimination when they were asked to leave. It is an adult entertainment use and it is in everyone's best interest to have adults aged 21 or older only. The kitchen will remain open as a revenue source.

Chairman Griffin asked Mr. Blake if the applicant is agreeable with the conditions as stated. Mr. Blake said that they were.

Commissioner Bailey asked Mr. Blake if he was aware of any legal cases or any cases regarding discrimination when businesses limited the age to 21 and over. The Department of Alcoholic Beverage Control had stated that it was not legal to restrict 18 year olds from entering the premises, with a Type 47 license, but Mr. Blake was not aware of any legal action taken or any specific case law.

Commissioner Hart asked if adult cabaret had an age limit. Mr. Blake answered that the consent decree restricts admittance to 21 and over. He said that a large number of 18 and 19 year olds are looking for employment and/or wanting entrance as patrons. The applicant desires to have a license in place that will not allow anyone under the age of 21 to work or be admitted.

Commissioner Hart asked if a particular type of CUP was required to allow adult cabaret. Chief Planner Rosen said that it required an adult use permit. He also stated that the use was approved prior to the establishment of the adult use permit provision. There were legal challenges and, as a result, the consent decree was recorded with certain stipulations.

Deputy City Attorney Jee clarified that the consent decree controls separate from the code.

Commissioner Fitzgerald asked which would take precedence, the Type 47 license or the consent decree. Deputy City Attorney Jee answered that they are consistent, but the consent decree is the control. The applicant desires a Type 48 which would allow them to prohibit patrons or employees under the age of 21.

Jim Vanderburg, owner of 1160 East Ash, was not concerned about a Type 47 or 48 license. His concern was with parking on his private property. He has posted the parking ordinance and there are ongoing problems with customers and employees of other businesses parking on his parking lot. He asked the business owner of the property under discussion be notified and have the security staff monitor the parking situation.

Public hearing closed.

Commissioner Bailey was not convinced this would stop minors from entering the business. He felt the best way was to have a CUP because it would give the City the ability to revoke the CUP if three or more violations were reported. He had heard good reports and he would be supporting it.

Commissioner Fitzgerald said she would be voting against it. She disagreed with her fellow commissioners and felt that a bar use was incompatible with the surrounding uses.

Commissioner Hart would be supporting it, she felt that tightening the restraints would make it easier for the business to control their clientele. She felt it was consistent with what they were trying to achieve. The CUP could be revoked with three or more complaints.

Chairman Griffin would be supporting it.

Title of Resolution PC-05-30 approving a CUP to operate a bar use (Type 48 ABC license - on sale general - public premise) at an establishment currently operating as a restaurant with a full liquor license (Type 47 ABC license - on sale general - eating place) on property located at 1189 East Ash Avenue. MOTION by Commissioner Bailey, seconded by Commissioner Hart and passed by a vote of 3-1, with Commissioner Fitzgerald voting no.

ITEM NO. 3
PRJ05-00445 - ZON05-00054. APPLICANT: ALMIRA CONSTRUCTION; PROPERTY OWNER: MANUEL CAMPOS.
A request for a variance to grant a reduction in the garage parking requirement from three garages to two garages and an open space on property located at 521 East Valencia Drive (north side of Valencia Drive, immediately east of the terminus of Balcom Avenue) (R-1-6 zone) (Categorically exempt under Section 15303 of CEQA Guidelines)

Assistant Planner Sowers presented the staff report dated September 14, 2005. She said that the applicant was requesting a variance. Instead of providing three garages he is proposing two garages and one uncovered open space.

Assistant Planner Sowers explained the request and displayed an aerial photo and site plan. Plans were approved and permits issued to demolish the existing garage and construct a limited second dwelling unit and alley-accessed three car garage. Construction began in 2004 and shortly after Southern California Edison advised the owner that a portion of the garage was over their easement and construction was halted. The applicant is proposing to demolish the partially constructed garage, but continue construction on the granny unit. They would build a single-car garage, which will gain access from the alley, adjacent to the granny unit and add another single-car garage to the main dwelling with access from Valencia. Staff recommends a condition that a third space (a compact stall on a slab) be added to the west of the garage.

Staff's highlighted recommended conditions for approval including that the applicant obtain a revised building permit, obtain demolition approval, provide a third compact stall-sized slab, and provide landscape plans for the area to be cleared. State law required strict findings be made for a variance. The project must be a special circumstance and staff felt this finding could be made based on the fact that it is located in an unbuildable easement that the applicant was not aware of at the time building permits were pulled. Also, this is not a special privilege, as conditioned, because the applicant would still be providing three parking stalls. Additionally, the use is permitted in this zone.

Staff recommended adopting the resolution and approving the variance with conditions

Commissioner Hart referred to a photo with a view of the alley and identified another building down the alley that could also be over an easement. Staff was not sure if it was. Chief Planner Rosen stated that staff does not have a record of the easement because it is a private between the homeowner and Edison.

Applicant, Rick Almira, General contractor stated that staff was correct, it is a private easement and the City was not obligated to have a record of it. This easement was set in 1932 when it was an orchard. His client and the title company were not aware of it. There will be sufficient parking and the applicant was comfortable with staff's conditions.

Commissioner Bailey asked about the design of the garage proposed to be added to the existing dwelling and asked if there was an existing driveway. Mr. Almira stated that it will be blended and match the existing home and there is an existing driveway. Staff displayed the renderings of the garage.

Manuel Campos Jr., applicant, stated that after they realized there was an easement and the title company was not aware of, they wondered what they could do to salvage part of the new structure. They have been working with Edison and the City to resolve this.

Public hearing closed.

Title of Resolution PC-05-32 GRANTING a variance to allow a reduction in the required number of garage spaces for a three-bedroom, single-family dwelling, and a one bedroom limited second dwelling unit, from a total of three garages to two garages and one open parking space, on property located at 521 East Valencia Drive was read and further reading was waived. MOTION by Commissioner Fitzgerald, seconded by Commissioner Bailey and passed by a vote of 4 - 0.

ITEM NO. 4
PRJ05-00538 - ZON05-00070. APPLICANT: CITY OF FULLERTON; PROPERTY OWNER: MARY A. MORGAN


A request for clarification of use to determine if an approximately 672-square-foot skateboard ramp in the rear-yard of a single-family residentially-zoned property is an outdoor recreational facility permitted in the zone, or a commercial recreational use not permitted in the zone, for property located at 616 North Mountain View Place (east side of Mountain View Place between approximately 373 and 444 feet south of Nutwood Avenue)

Assistant Planner Sowers presented the staff report dated September 14, 2005. She explained that staff felt this item needed greater clarification, and the Fullerton Municipal Code allowed such items to be brought before the Planning Commission for a recommendation to the City Council. A skateboard ramp was constructed at 616 North Mountain View Place. Code enforcement responded to calls from the neighbors and pictures were taken, those photos were displayed.

Assistant Planner Sowers discussed the location, the construction and height. Staff was asking the Planning Commission to determine whether this was a residential recreation facility, or a commercial recreation use. A residential recreational facility is permitted in a residential zone, but a commercial recreational use would not be permitted. She gave the definitions of both and stated that neither of the definitions in the Fullerton Municipal Code identified a skateboard ramp. She spoke of the size and described the times of use reported and that a notice of violation and a "notice to cease use" was sent to the homeowner. The noise was significant and code complaints addressed the loud music and foul language. She discussed the noise impacting the surrounding neighborhood.

Staff recommended that the Planning Commission recommend to the City Council that a determination of a commercial recreation use be found, which is not permitted in the zone, and direct staff to return with a code amendment for skateboard ramps in future.

Staff provided alternate recommendations if the Planning Commission determined if this use was a residential recreational facility :
  • Obtain a building permit for the structure
  • Relocate the ramp 15 feet from rear property line and 6 feet from side property lines
  • Comply with noise standards of the residential zone
  • An occupant must be present during use.
Commissioner Bailey asked how many code enforcement complaints were received and if the homeowner violated the noise abatement laws. Assistant Planner Sowers stated she was not sure of the exact number but that several were multiple complaints from the same residence. Chief Planner Rosen answered that the activities might not exceed the noise levels during the day and stated that staff was not able to get a decibel reading of the skateboards on the ramp.

Commissioner Bailey asked why staff was asking for a relocation of the ramp. Assistant Planner Sowers said that staff followed the setbacks required for a habitable structure (or a deck between 4 and 10 feet above natural grade), which required a fifteen foot rear setback in the rear. Additionally a deck of similar height would require screening if abutting the required five foot side setback. To eliminate the requirement for screening staff recommended a setback of six feet from the side property lines.

Commissioner Fitzgerald asked if staff determined if this is a business. Assistant Planner Sowers said that staff had not determined that.

Public hearing opened.

Peter Beard, 280 Helen Drive spoke on behalf of Brenda Morgan and her mother-in-law who owns the home. Mr. Beard spoke about:
  • The ramp should be considered a residential recreational facility
  • The structure was conceived by and built by children, with adult supervision
  • There is no advertising or signage, no posted hours of operation, no bleachers or seating, no structure for public facilities
  • There is no permanent foundation and it is movable
  • The construction and location was discussed with staff on 7/28/05; open space was calculated and found to be sufficient
  • He felt it was an acceptable noise level
  • He felt the use should not be limited
  • He said the homeowner was on vacation when most noise complaints were reported
Jeff Koskella, 609 N. Hale spoke about:
  • The noise level
  • Incompatible use for a residential area
  • It should be in designated public parks
  • The use of his backyard is compromised by the continual noise
  • Decibel readings were 55, 60 and higher
  • It was a quality of life issue
  • He could not carry on a conversation in his backyard during use
Manuel Quinones, family friend of Brenda Morgan, stated that he assisted in the construction and design. He said that once completed it would be insulated to reduce the sound. He apologized for loud music and obscenities which occurred while he watched the house when the homeowner was on vacation.

Brenda Morgan, 616 Mountain View, daughter of the property owner spoke about:
  • Checking on-line about the building codes and did not think that permits were required
  • Children are good students and the ramp was a reward for that
  • The code complaint was recorded while she was on vacation
  • The loud music has stopped and obscenities are not allowed
  • She would not allow her son at public skate parks because of illegal drug use in public by older children
  • She apologized to neighbors for the noise
  • She tolerates noise from other neighbor's use of backyard facilities, i.e. pool, basketball, etc.
Commissioner Hart asked if her insurance company was notified of the structure. Ms. Morgan stated that they were notified, they are aware of the dimensions, and it is fully insured.

Chairman Griffin asked if the neighbors were notified about the ramp, questioned if the noise would be reduced when completed, and questioned her position on possibly moving the ramp. Ms. Morgan said that she spoke to all neighbors in person or gave a note when no one answered the door. The note included her phone number to call if the neighbors had concerns with the noise. She believed that the noise would be reduced when fully insulated and they would be agreeable to relocating it although the preference is to leave it in the current location.

Glyn Norman, Hale Avenue, spoke about:
  • He has a new baby at home and is not able to sleep with the noise
  • He no longer gets enjoyment from his property
  • He felt there was not a spirit of cooperation
  • It is an inappropriate use for a residential neighborhood
  • The sound needs to be dampened
Tony Florentine, 626 N. Mountain View place, spoke about:
  • It is a safe environment for kids to play
  • After the structure was built it was misused
  • He felt there would be less noise when the structure was completed and insulated
  • He felt the commercial codes are not appropriate
  • He asked the Planning Commission to approve this item
  • Not all public places are safe for children
  • Mr. Beard will oversee the completion
Esther Amar, 1425 Miramar, spoke about:
  • The public skate park was 3.1 miles away, with no supervision
  • Commended Ms. Morgan for creating and maintaining a safe and controlled environment for children
  • There are not many safe options for children who want to skate
Scott Green, 605 N. Hale, spoke about:
  • The issue is the noise level
  • Residents are not able to enjoy their backyards because of the noise
  • His bedroom is 60 feet from the ramp
  • Skill saw was used after 11 p.m. and called the police
Peter Othmer, 600 Mountain View, spoke about:
  • Ms. Morgan is watching neighborhood kids and keeping them off of the streets
  • Speeding traffic on Mountain View
  • Other noises in the neighborhood: dogs barking, Troy High School band, Montessori loud speaker, people using swimming pools
  • He felt that if the skateboard ramp noise was an issue, the other uses should have the same scrutiny
The following people also spoke in support:

Debbie Sadvary, 900 N. Raymond
Sheila Howe, 221 N. Princeton
Ron Fay, 706 N. Mountain View
Martha Cano, 1118 Ferndale

They spoke of the good environment provided in a backyard setting with adult supervision although recognized that the applicant should have better communication with neighbors. A speaker noted that four registered sex offenders live near the public skate park.

The following people also spoke against:

Julie Feaster, 527 N. Hale
Valerie Green, 605 N. Hale
Brent Coley

They spoke of their quality of life being compromised. Photos were displayed from the neighbor who lives behind the applicant. A speaker said that he had tried for a compromise prior to the hearing regarding the hours and decibel level being limited.

Public hearing closed.

The Planning Commission recessed at 9:42 p.m.

The Planning Commission reconvened at 9:50 p.m.

Commissioner Fitzgerald felt it was a difficult situation and understood both sides of the issue but disagreed with staff, and did not feel it was a commercial use. She felt that it was not unreasonable to ask the property owner to move the ramp closer to her residence. She felt it was important for the applicant to be very respectful of her neighbors and finish the soundproofing. She suggested that the noise level be tested after completion and if it is not acceptable, the Planning Commission should review it again.

Commissioner Bailey felt it was not a commercial use. He commented on how all the residents spoke well of Ms. Morgan, whether they were for or against the issue. He felt a City Plan Check Engineer should review the structure. He did not think that moving the ramp would reduce the noise much, but was concerned with the privacy of the neighbor behind the subject property. He wanted condition #4 changed to state that a responsible adult, not necessarily a resident, be present at all times to supervise. He suggested that the Planning Commission direct staff to return with a code amendment to clarify the use of skate ramps in the future.

Commissioner Hart discussed how this could change the value of property because of the noise abatement issue. She also felt it was a residential recreational use and that moving the ramp 15 feet would not abate the noise sufficiently. She wanted to see conditions 1, 3 and 4 remain. She felt the noise abatement was the most significant issue.

Chairman Griffin concurred with other commissioners that this was not a commercial use. He also talked about the kind manner in which all neighbors spoke about Ms. Morgan, which is unusual when several are against an issue. He felt that the applicant should be allowed to complete the construction and sound buffering insulation. He felt the ramp should be moved to staff's recommended setback. He also felt a responsible adult should be present when the ramp is being used. He wanted to see conditions 1, 2, 3 remain and concurred with the recommended revision to 4 to state "or a responsible adult". He agreed that after the decibel level has been measured and the integrity of the construction has been reviewed by city staff, the Planning Commission should review it again.

Chairman Griffin discussed Ms. Morgan's comment regarding the potential of installing a block wall. Chief Planner Rosen answered that the standard height of block walls allowed in residential neighborhoods is six feet tall. A zoning adjustment is allowed for 10% higher, or the wall could be set back five feet from the property line, with approval. There is an approval process, which involves a hearing process with the Director of Development Services as the hearing administrator who would issue a notice to the neighborhood of the potential zoning adjustment and if any objections are received, then it is sent to the Planning Commission.

Deputy City Attorney Jee clarified that the Planning Commission does not have to find that the applicant is or is not charging the general public in order for it to be decided a commercial recreational use.

Commissioner Bailey agreed to condition 2 regarding relocating the ramp. Additionally, he felt that it was necessary to have an adult available if neighbors were having a problem, not necessarily for supervision only.

Commissioner Hart agreed to condition 2 also and agreed to amend condition 4 and have an adult on the premises for supervision and safety.

Commissioner Fitzgerald asked if the City required building permits for swimming pools. Staff answered affirmatively. Chief Planner Rosen said that it is an unusual condition to require adult supervision, but staff has the discretion to determine whether public safety, health or welfare is at jeopardy. Commissioner Fitzgerald supported all the conditions, including the revision to 4.

Commissioner Hart asked for a clarification on "establish noise and public nuisance standards". She asked if the noise was below the decibel level but was continuous and bothersome, would it still be considered a public nuisance. Chief Planner Rosen answered that he would review that section under the nuisance code, but that it could still be considered a nuisance.

Commissioner Bailey felt that disturbing peace could be considered, regardless of the level of noise. Deputy City Attorney Jee stated that the standards are similar, some things might be permitted in certain circumstances, but other noises can become disturbing the peace even if it was technically permitted. Those provisions of law would be more general and not specific to the noise or decibel level.

Chairman Griffin asked the Planning Commission if they wanted to set a review period or allow the nuisance to be addressed through the Police Department and Code Enforcement reporting process.

Chief Planner Rosen said he was not knowledgeable with the public nuisance process, but the Planning Commission would not be precluded from requesting a review of this item. The City Manager would be the administrative hearing officer and the Planning Commission would hear it as the Board of Appeals.

Deputy City Attorney Jee stated that three or more complaints would result in a CUP revocation hearing. The criminal action would be handled by the City Attorney's office.

Chairman Griffin stated that there were four conditions the Planning Commission agreed to with the modification of condition 4. He stated that the next step for noise abatement if this was not resolved would be to use the complaint procedure through the Police Department and Code Enforcement.

Commissioner Hart asked if the ramp could not be used until it was completed.

Chairman Griffin answered affirmatively and suggested the condition be modified for clarity.

Chief Planner Rosen asked if the intent was that the skateboard ramp construction should be completed, insulation installed, and moved 15 feet closer to the residence.

MOTION by Commissioner Bailey, seconded by Commissioner Fitzgerald "to determine that the skateboard ramp is a residential recreational facility" with the conditions recommended by staff and modified as follows. Condition 1 - the ramp shall not be used without final approval by the Director of Development Services, and Condition 4 - an occupant of the home or a responsible adult shall be present during use.

Chief Planner Rosen read revised Resolution Number PC-05-33 RECOMMENDING clarification of classification of use and a determination that an approximately 672 square-foot skateboard ramp, as constructed, operated, and conditioned, in the rear year yard of a single-family residential zone property is a residential recreation facility permitted in this zone on property located at 616 Mountain View place, as conditioned by the Planning Commission. This passed by a vote of 4 - 0.

Chief Planner Rosen stated that this item will go to City Council on October 18 or November 1 with public notification.

Deputy City Attorney Jee reminded the Planning Commission of the second part of the recommendation noting that it could be handled as a reporting item not requiring a formal resolution. Staff would want or need to research what type of code amendment would be done. A definitions of skate ramps should be included in the code. She suggested set standards, restrictions, or provisions be added to the code relating to skate ramps.

Chief Planner Rosen said that staff would return with an update to the residential section of code and would include this subject in the discussion.

OTHER MATTERS

COMMISSION/STAFF COMMUNICATION

Commissioner Hart felt that 10 minutes was too long for public testimony and wanted to discuss limiting public discussion. It was decided to agendize this item to be discussed at a future meeting with all commissioners in attendance.

Chief Planner Rosen informed the Planning Commission that Senior Planner Mullis has accepted a position of Senior Planner for the City of Ontario. Staff and Chairman Griffin thanked her for her quality of work.

REVIEW OF COUNCIL ACTIONS

Chief Planner Rosen stated that there was a recent meeting at the Fullerton Plaza regarding free speech. The issue was remanded to the City Council regarding reducing public input in the public hearing process. The City Council approved the amendment to planning fees which allows a waiving of fees for uses at Providence Center that are being displaced. Providence resubmitted their application Tuesday without the residential component, it now is commercial only.

Commissioner Fitzgerald asked if that would nullify the lawsuit filed. Chief Planner Rosen said that it would require a new application, new environmental documents and so it would nullify the lawsuit.

Staff discussed an upcoming condition of approval to allow public access through the Presidential Home Collection. This will be brought before the Planning Commission from the Homeowners' Association to request a removal of that condition.

Chairman Griffin asked for an update on the Farmer Boys project and CVS Pharmacy. Assistant Planner Sowers updated the Planning Commission on the Farmer Boys project and Chief Planner Rosen updated the Planning Commission on the CVS Pharmacy.

Staff advised the Planning Commission that the proposed condominium project at 321 Amerige has been appealed to the City Council.

PUBLIC COMMENTS

Mr. Othmer spoke about City trees.

AGENDA FORECAST

Staff reviewed the proposed items listed in the agenda forecast.

ADJOURNMENT

There being no further business, the meeting was adjourned at 10:49 p.m.
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