Chair George Murphey called the meeting at 6:30 p.m. to order with the following in attendance:

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1 City of Elk Grove Minutes of the Planning Commission Regular Meeting Thursday, July 7, 2011 CALL TO ORDER/ROLL CALL: Chair George Murphey called the meeting at 6:30 p.m. to order with the following in attendance: Present: Absent: Chair George Murphey and Commission members Nancy Chaires, Sparky Harris, Frank Maita and Brian Villanueva. None. There were no requests to speak during public comment. CONSENT CALENDAR ITEMS: The Commission agreed to move public hearing Item 4.2 Jones Parcel Map EG to the consent calendar items. Motion: M/S Chaires/Harris to approve the consent agenda items as amended to include Jones Parcel Map Item 4.2 of the public hearing items. The motion passed by the following vote: Ayes: 5; Noes: 0. Commissioner Harris Abstained to the approval of the minutes of May 5, 2011 due to absence. PUBLIC HEARING ITEMS: 4.2 SECOND DWELLING UNIT & GARAGE BUILDING PERMIT EG APPEAL; (Christopher Jordan, Project Planner). An appeal of the issuance of a Building Permit for a second dwelling unit and garage. The appeal is focused on the Zoning Clearance/Plan Check of the Building Permit application that determined consistency with the City s Zoning Code. If the appeal is upheld, the Building Permit will be invalidated. The site is located at Wrangler Drive; APN Chair Murphey declared the public hearing open. Christopher Jordan provided a presentation and history of the building permit. He explained that that when the appellant filed a suit against the City for failure to provide opportunity to appeal the issuance of the building permit, the Court issued a judgment against the City, finding that the appellant was entitled to an appeal. The City Attorney, Susan Burns Cochran, clarified that the building permit was vacated and set aside since the service of the mandate, which means the permit is still open. She explained that the court ordered the building permit be considered invalid until the appeal is heard and that whether or not the determination of the structure is a second dwelling or accessory structure, it does not meet the current setback requirements. In response to questions about the decision for denial of the original appeal, Mrs. Cochran stated that based on her read of the building code there was no appeal for ministerial projects. She indicated that the Courts said that because there was discretionary Planning Director determination involved in the permit review, a building permit is not ministerial. There was a lengthy discussion relative to the history of the time of building permit issuance, time of construction of the structure with inspections and the timing of the complaints filed by the

2 appellant. There was also discussion about the City Council s previous decision to find that the structure was a second dwelling unit per the plans as submitted and approved a waiver of certain City impact fees as requested by the owner. Mrs. Cochran indicated that the Court said the City Council did not make a structural determination, but only a waiver of the fees. Mrs. Cochran clarified that the Planning Commission s action on the table was to pretend the building does not exist and determine if structure as presented on the plans meet the setbacks of the current code. Chair Murphey opened the public comment opportunity. Michael Hardy described the timeframe of the process. He stated that the nature of appeal was to be heard at that time and that there were three separate appeal letters along the way. He felt that if City staff would have acted properly at that time of his requests, this would have been discussed at that time. Mr. Hardy questioned why this hearing was even taking place since the Court Order states that an appeal hearing need only be held if the City intends to reissue or reapprove the building permit. Mr. Hardy requested a refund his fees for the appeal. In conclusion, he requested the Planning Commission find the building does not conform with current setback requirements as if the building does not exist. There was discussion between Mr. Hardy and Commissioners relating to dates and times of events as they occurred and the request for refund of the fees. Mrs. Cochran stated that the code is silent on fee refunds and that generally the position is taken that only the City Council can take action on fees. She noted that the Commission could make a recommendation to the Council. There was further discussion between the Commission and staff relating to the current code that would determine the structure an accessory structure today and the requirements of the plans as submitted in The Planning Director, Taro Echiburu, stated that the setback would have to equal the height of the structure. In response to questions concerning the owner s options, Mr. Echiburu explained that they could apply for a variance. Gregory Finch, Attorney representing the property owner, talked about the principles of the Avco Community Developer case and how they apply to this case. He indicated that the property owner was willing to apply for a variance immediately if the Planning Commission would continue this hearing and hear the variance at the same time. Sharon Lynes questioned the waived impact fees. Mrs. Cochran stated that the traffic impact fees of about $25,000 were waived in August In response to Ms. Lynes, it was explained that the appeal was denied due to a determination that there was no appeal process. Ms. Lynes felt that it is common knowledge that a stove categorizes a Kitchen and that there was favorable treatment to the property owner. She requested the Commission deny a variance of the Henderson s as Mr. Hardy was denied his appeal and requested to reinstate the fees waived. There was a brief break at 9:45 to 9:50 pm. The Commission opted to waive the 10pm rule that says items not heard by 10pm would be continued, in order to hear the next Gold s Gym item. Chair Murphey closed the public comment opportunity. Page 2 of 6

3 COMMISSION DELIBERATIONS AND ACTION: Commissioner Villanueva felt that after hearing Mr. Hardy s case he would have upheld the appeal in 2008 and supported upholding the appeal. Commissioner Chaires stated that the structure does not meet setbacks requirements; the records provided show that the City made series of errors and that Courts have determined the structure must comply with current code, and that she was inclined to not penalize the Henderson s for the City s mistakes. She said that if it is the will of Commission to deny permit she would support it. Commissioner Harris also felt there were mistakes with this case and that there was no choice but to uphold appeal. Commissioner Maita felt that one Judges studied conclusion could have tremendous ramifications. He did not support the appeal because of a litany of unfortunate circumstances that could have had changes made at the time issues were raised to bring the structure into conformance. He stated that it was not the Court but rather the City s code that requires compliance with the current code. He was comfortable believing the judge overreached in this matter and that the City should approach an appeal. Chair Murphey felt Mr. Hardy should have been heard in 2008 so he supported staff s recommendation to uphold the appeal. Commissioner Chaires stated that she would support the appeal but reiterated that mistakes made will prompt lots of discussion. MOTION: M/S Villanueva/Harris The Planning Commission adopt a resolution finding the Appeal of the Second Dwelling and Garage Building Permit for Wrangler Drive exempt from CEQA pursuant to State CEQA Guidelines Sections 15061(b)(3) and 15301, subject to the findings contained in the July 7, 2011 staff report. The motion passed by the following vote: Ayes: 5; Noes: 0. MOTION: M/S Villanueva/Harris The Planning Commission adopt a resolution upholding the Appeal of the Second Dwelling and Garage Building Permit for Wrangler Drive, subject to the findings contained in the July 7, 2011 staff report and directing the Building Official to invalidate the Building Permit. The motion passed by the following vote: Ayes: 4; Noes: 1 (Maita). 4.3 KAUR FARM EG CONDITIONAL USE PERMIT AND DESIGN REVIEW; (Adam Petersen, Project Planner). A Conditional Use Permit for the on-site production and sales of agricultural crop production products. A design review for the structures proposed for the property include a market that would sell the produce grown on the property, a barn, well, portable toilet, and fencing, located on Waterman Road; APN Chair Murphey declared the public hearing open. Adam Petersen presented the details of the proposed project and answered questions of the Commission relative to the use of chain link fencing and lighting. Chair Murphey opened the public comment opportunity. Page 3 of 6

4 Tony Singh, project representative, answered questions of the Commission relating to the previous comments about chain link fencing, landscaping and lighting. He said he was fine with using colored slats in the chain link fencing. There was a brief discussion about shade for workers and at the parking lot. Elizabeth Moseby addressed concerns about the fire access road being blocked off. She requested a vehicle block be put in the area where access in park cannot be accessed; she requested a stipulation that workers not park big rigs or commercial vehicles on property; and requested that no wooden fence be installed to avoid graffiti issues. Chair Murphey closed the public comment opportunity. Commissioner Villanueva thanked speaker Elizabeth Moseby for informing them of the access issue and supported the vehicle barrier as requested. Commissioner Chaires expressed concerns of the use of pesticides known to cause birth defects, and stated that she could not support the project unless it was conditioned to restrict the use of methyl iodide pesticides. Commissioner Harris supported the project. Commissioner Maita supported the project with additional conditions for landscaping, fencing with colored slats, and a vehicle barrier coordinated with fire department. He was not in support of a condition for pesticide already regulated by the Department of Agriculture. Chair Murphey supported the project with the additional condition of the vehicle barrier in coordination with the police and fire departments. It was the consensus of the majority of the Commission to approve the project with additional conditions as discussed, to include of the vehicle barrier in coordination with the Planning Department and CCSD Fire Department, landscaping of shade trees in the parking lot area, and chain link fencing with color slats. COMMISSION DELIBERATIONS AND ACTION: MOTION: M/S Villanueva/Maita The Planning Commission adopt a resolution finding the Kaur Farm Conditional Use Permit and Design Review project (EG ) exempt from CEQA pursuant to Sections 15303(c) (New Construction or Conversion of Small Structures), 15311(b) (Accessory Structures), and (Projects Consistent with a General Plan, Community Plan or Zoning) of Division 6 of Chapter 3 of Title 14 of the California Code of Regulations (State CEQA Guidelines) subject to the findings contained in the draft resolution. The motion passed by the following vote: Ayes: 5; Noes: 0. MOTION: M/S Villanueva/Maita The Planning Commission adopt a resolution approving a Conditional Use Permit and Design Review for the Kaur Farm project (EG ) subject to the findings and conditions of approval contained in the draft resolution and addition of colored chain link (black or green) fencing, a vehicle barrier and landscape area to include a tree for parking lot area. The motion passed by the following vote: Ayes: 4; Noes: 1 (Chaires). 4.4 GOLD S GYM EG REZONE; (Adam Petersen, Project Planner). A rezone of the property from Highway Travel Commercial (TC) to General Commercial (GC). The change in zoning from TC to GC would allow for a greater range of permitted and conditionally permitted commercial Page 4 of 6

5 uses. The applicant has indicated a desire to reuse the site for an assembly use (religious institution). The rezoning of the property from TC to GC is necessary in order for this use to be established at the site, located at 2285 Longport Court; APN Chair Murphey declared the public hearing open. Adam Petersen presented the details of the proposed rezone and answered questions relative to the changes to the allowable uses with the rezone from TC to GC and the existing parking challenges on the site. Mr. Petersen brought the public comment letters provided on the dais to the Planning Commission s attention. Chair Murphey opened the public comment opportunity. Dan Kinnoin representing applicant, described the possible use of the building. He said he was aware of parking constraints and that clients would be advised accordingly. David Flaig, Pastor of Sun Grove Church spoke briefly about the attendance at the multiple services. Jay Stevens, Staff of Sun Grove Church, talked about the Church s history of using trailers for services. He said they are looking for a permanent home for the Church and requested a recommendation of approval of the rezone. Matt Colgna said most of the speakers in support of the project were willing to waive their request to speak. Mr. Colgna felt the rezone would broaden the spectrum of office, retail, and other uses that could assist with community growth. Larry Gury, co-founder of CA Family Fitness spoke in favor of the rezone because it would not prevent the fitness center. Chair Murphey closed the public comment opportunity. COMMISSION DELIBERATIONS AND ACTION: It was clarified that the action on the table was not about the tenants but rather the rezone and that the rezone meets the goals of the General Plan. MOTION: M/S Chaires/Harris The Planning Commission adopt a resolution recommending that the City Council of the City of Elk Grove find the Gold s Gym Rezone project (EG ) exempt from CEQA under Section (Existing Facilities) and Section (Projects Consistent with a Community Plan, General Plan, or Zoning) of the State CEQA Guidelines. The motion passed by the following vote: Ayes: 5; Noes: 0. MOTION: M/S Chaires/Harris The Planning Commission adopt a resolution recommending that the City Council of the City of Elk Grove approve a rezone for the Gold s Gym Rezone project (EG ). The motion passed by the following vote: Ayes: 5; Noes: 0. PLANNING DIRECTOR S REPORT: Mr. Echiburu reported that since there were no scheduled items for July 21, 2011 the regular meeting would be cancelled. He talked briefly about the items tentatively scheduled for the Page 5 of 6

6 August 4 meeting. PLANNING COMMISSION MATTERS: In response to Commissioner Harris, Mr. Echiburu stated that Redevelopment was on hold for the time being. Commissioner Chaires suggested a future discussion concerning situations such as non appealable permits and how to avoid similar situations as the appeal. When Commissioner Maita suggested the Commission revisit the TC zone viability, the rest of the Commissioners agreed to revisit conditional use permit and zoning for assembly uses. ADJOURNMENT: The meeting was adjourned at 10:35 p.m. Prepared by Sandy Kyles, Planning Commission Secretary APPROVED: Page 6 of 6