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HomeMy WebLinkAbout2008 - February 4 Planning Commission Minutes (!. ';600. G. ;).3 February 4, 2008 10f27 Minutes Planning Commission City of Orange 4 February 2008 Monday-7:00 p.m. PRESENT: ABSENT: Commissioners Bonina, Imboden, Merino, Steiner and Whitaker STAFF PRESENT: . Ed Knight, Assistant Planning Director Leslie Aranda-Roseberry, Planning Manager Dan Ryan, Senior Planner, Historic Preservation Robert Garcia, Associate Planner Doris Nguyen, Associate Planner Gary Sheatz, Assistant City Attorney Sandi Dimick, Recording Secretary ADMINISTRATIVE SESSION: Chair Imboden opened the Administrative Session @ 6:30 p.m. Chair Imboden opened the session with a review of the Agenda. Commission Reorganization: Election of officers, Chair and Vice Chair would take place Consent Calendar: Commissioners reviewed the minutes from the January, 7 2008 Planning Commission meeting, no changes or corrections were noted. Commission Business Item No.2 Prestininzi Residence: Mr. Knight stated Senior Planner, Dan Ryan, would present the item. Commissioner Whitaker asked if Mr. Sheatz would be available to respond to questions. Mr. Sheatz stated he would be available and the item was an appeal filed by the OTPA that dealt with issues they had with the City's process. Mr. Sheatz stated Staff was able to handle those issues. If there were design issues that would be a separate matter. The appeal did not indicate any issues with design, and if a design issue arose the Commission should bear in mind that the DRC had not heard of any problems with the design of the project. The Commission should consider the evidence and give the property owner an opportunity to respond, as they were entitled to due process, and the property owner had not previously heard of any issues with their design. Commissioner Merino stated the appeal implied that the homeowner knowingly caused the residence to fail and he wanted to review the original plans. He was interested in reviewing the plans for any design issue that would have caused or not caused failure. Mr. Sheatz stated he did not see the relevance in that. Commissioner Merino stated he wanted to check the plans that indicated how the siding should be removed. Mr. Sheatz stated the information in front of the Commission was not related to the design, but a matter related to a process issue. Commissioner Merino stated he had not read it that way, and he would ask questions to clarify his understanding of the matter. Mr. Sheatz asked what the relevance would be in investigating the Page 1 of 27 Pages Planning Commission Minutes February 4, 2008 20f27 design issues? Commissioner Merino stated he wanted to investigate whether the City was rewarding the homeowner for knowingly causing property failure. Mr. Sheatz stated all of those issues would have been addressed during the demolition process. Commissioner Merino stated there was not a demolition process. Mr. Sheatz clarified it was handled through a penalty for non-compliance and felt that Commissioner Merino was reading into the matter differently than it was written. Ms. Roseberry stated in her conversations with the appellant she had interpreted the issue differently. The appellant's issue was that the proper process was not followed by the City and that the Demolition Review Process had not been followed. Commissioner Merino stated that he would ask for clarification from the appellant. Mr. Sheatz stated that everyone had acknowledged the demolition and they needed to move on from there. Commissioner Merino stated that he wanted to be clear as he was reading the appeal slightly differently. Commission Business Item No.3 Zirkle Corner: Commissioner Whitaker asked why the item had come to the PC and why no final determination was made at the DRC meeting? Mr. Knight stated the property was listed with the Historic Registry and those items went through PC review. Chair Imboden stated there were also fayade modifications that needed to come before the Planning Commission. Commissioner Merino asked if the Planning Commission could make a motion to adopt the recommendations made by the DRC. Chair Imboden stated yes, that could be done. New Hearing Item No.4 Tesco (Fresh & Easy): Commjssioners stated they would have questions on the item. New Hearing Item No. 5 Taco Company: Commissioner Merino stated he would be recused from the item due to a business conflict. New Hearing Item No.6 Japan Grill: Commissioners stated they would have questions on the item. Additional Business: Mr. Knight stated the Commissioners had been given the final DIR for the East Orange Project which provided the background information for the 2/20/2008 Planning Commission Meeting. The initial study would be included with the Staff Report. Commissioner Merino stated he had been present at previous presentations of the item and some of those items had been missing. Mr. Knight clarified that they had a copy of the complete and final EIR. Administrative Session closed @ 6:50 COMMISSION REORGANIZATION: Commissioner Bonina made a motion to nominate Commissioner Steiner for the position of Commission Chair for a period of twelve months. SECOND: AYES: Commissioner Merino Commissioners Bonina, Imboden, Merino, Steiner and Whitaker Page 2 of 27 Pages Planning Commission Minutes February 4,2008 30f27 NOES: None ABSTAIN: None ABSENT: None MOTION CARRIED Commissioner Bonina made a motion to nominate Commissioner Whitaker for the position of Commission Vice Chair for a period of twelve months SECOND: AYES: NOES: ABSTAIN : ABSENT: Commissioner Steiner Commissioners Bonina, Imboden, Merino, Steiner and Whitaker None None None MOTION CARRIED PUBLIC PARTICIPATION: None ITEMS TO BE CONTINUED OR WITHDRAWN: None CONSENT ITEM (1) APPROVAL OF THE MINUTES FROM THE REGULAR MEETING OF JANUARY 7, 2008. Commissioner Merino made a motion to approve the January 7,2008 minutes as written. SECOND: AYES: NOES: ABSTAIN: ABSENT: Commissioner Bonina Commissioners Bonina, Imboden, Merino, Steiner and Whitaker None None None MOTION CARRIED COMMISSION BUSINESS: (2) APPEAL NO. 522-07 - DESIGN REVIEW COMMITTEE NO. 4270-07 - PRESTININZI RESIDENCE An appeal of the Design Review Committee's approval of a proposal to reconstruct a 718 sq. ft. single-story, gable style new in-fill residence to replace the original 893 sq. ft. residence that was demolished. Other than the original off-set (three-foot side yard setback and/or the line of demarcation on the west side of the original Cottage residence) the proposal as submitted is the same as the prior DRC plans that were approved on June 2, 2004. NOTE: The proposed project is categorically exempt from the provisions of the California Environmental Quality Act (CEQA) per State CEQA guidelines 15302 and Section 15331. Section 15302 (Class Page 3 of27 Pages Planning Commission Minutes February 4, 2008 40f27 2 - Replacement or Reconstruction - consists of replacement or reconstruction of existing structures and facilities where the new structure will be located on the same site as the structure replaced and will have substantially the same purpose and capacity as the structure replaced. RECOMMENDED ACTION: Motion on Appeal No. 522-07 Senior Planner, Dan Ryan, presented a project overview consistent with the Staff Report. Chair Imboden opened the hearing for any questions to Staff. Commissioner Merino asked ifthe demolition, which was done unlawfully in violation of the City of Orange municipal code, provided the owner with the opportunity to design a project in the act of replacing that house? Mr. Ryan stated the design that was approved showed that the construction was rehabilitation. Commissioner Merino clarified, had the owner come to the City with a design that would provide them an opportunity for a change from the project that was originally submitted, and essentially giving them special privileges? Mr. Ryan stated no, they were rebuilding an in-fill project, reconstructing on required setbacks. It was the same design that had been previously approved. Commissioner Merino stated there would not have been rehabilitation if there had not been a demolition. The applicant was receiving an opportunity to design a project due to the demolition taking place. Mr. Ryan stated yes, whether the demolition occurred by accident or not. Commissioner Whitaker asked Mr. Sheatz ifthe applicant had sought a demolition permit would a CEQA review have been necessary at that time, or would there have been circumstances that would have avoided a CEQA review? Mr. Sheatz referred the question to Planning Staff and stated from a legal standpoint most likely yes a CEQA review would have been required. There were variables; if something was ordered demolished because it was unsafe or uninhabitable there might not be an opportunity for CEQA review. Mr. Ryan stated there had been circumstances where a building had been in danger of collapse during construction and the building official made a determination that the building was unsafe and ordered an immediate demolition. In another case a building was temporarily supported until a solution was found, and then the project had to go back through the environmental process. In cases where the building official was involved due to a dangerous situation, the building official could call for a permitted demolition to take Page 4 of 27 Pages Planning Commission Minutes February 4, 2008 50f27 place and it would be their determination in which direction the City would act. Ms. Roseberry stated reading directly from the Code for the purpose and intent of a demolition review, the provision of the section applied to specifically two things: Any structure in the established historic district that was over 120 square feet to any structure listed on the National Register located within the City. The exception being the process was not intended to apply to a demolition ordered by the Chief Building Official or Fire Chief of the City to remedy conditions determined to be dangerous to life, health or property or demolition of a non-contributing structure that had a floor area of less than 120 square feet. Chair Imboden stated the project was not demolished due to a building inspector calling for the demolition. Ms. Roseberry stated yes, correct. Nobody reviewed the demolition until 2-3 weeks after. Chair Imboden asked if the project had come forward with a demolition request as part of the process would CEQA have applied as part of that process? Mr. Ryan stated yes. Commissioner Whitaker asked if there had been a determination that there was no way to save the structure and demolition was the best course, what would have been the mitigation measures? There had been a lot of debate about mitigation measures and when the City allowed something in the historic district to be demolished was the only mitigation measure, which had been historically done, the development of an historic record as in this case, and were there other mitigation measures that had been required in the past? Mr. Ryan stated a demolition could not be mitigated, however, there had been two cases where historic buildings had been relocated that fit the context and setting into the place where the building had been demolished. It was a reuse of buildings and if the context was appropriate it was one solution. Clearly, documenting the building and identification of previous plans to reconstruct the building would be the first step. Commissioner Steiner asked in the event that CEQA was not sought or obtained, would the remedy be that it would be obtained, and was CEQA a remedy or enforcement? Mr. Sheatz stated no, it was not. If the project had come through as a garden variety demolition, for demolition review and the planner had completed a CEQA analysis and had arrived at mitigation measures; once the resource was lost there was a provision in the demolition Ordinance that would apply, which was the penalty for non-compliance. There was a penalty for not obtaining a permit and possibly not having the CEQA review prior to the resource being demolished. When the application for an in-fill or a new structure was requested it would be analyzed for environmental compliance. The CEQA review would come either through the demolition review process or through the application process for the new structure. There would be review somewhere. Page 5 of 27 Pages Planning Commission Minutes February 4, 2008 6 of 27 Chair Imboden stated certainly the analysis would be different, regardless of that, the demolition Ordinance was not in place just to address penalty. In the opening comments of the demolition Ordinance it looked to ensure proper replacement of demolished structures and was not a penalty. He felt compliance with CEQA was not a penalty; it was in place to ensure protection of the environment. Chair Imboden was concerned that they would lead people to believe it was done as a penalty as it was a part of the standard process. Mr. Sheatz stated it was not meant to lead people in that direction, it was meant to inform the body and public, specifically with this case, the property owner could not be run through the demolition review process according to the City Ordinance due to the fact that the resource was gone. There needed to be the opportunity to grant or deny the application for a demolition permit, the only reason it was highlighted regarding the penalty provisions was due to the question presented whether CEQA was a punitive measure. Commissioner Merino asked had the applicant requested a demolition in compliance with the Old Towne Design Standards; would that have required an application that would have gone to the City Council? Mr. Sheatz stated yes. Commissioner Merino stated it was unclear if special privileges were granted, and this had been addressed in the Staff Report regarding the Variance. During the homeowners actions a demolition took place and the idea that this project would be held to different standards and the demolition would be dealt with under the Ordinance and not through a City Council review, which appeared to grant special privileges to the applicant Mr. Sheatz stated on the basis of the Demolition Review Ordinance itself, which stated there were two penalties for non-compliance, he did not understand how Commissioner Merino believed that a special privilege was being granted. Commissioner Merino asked how would the City prevent a resident living in an historic district from simply demolishing a structure to avoid the entire process? Mr. Sheatz stated the penalty for non-compliance would be the section in place that would deter residents from doing that. Commissioner Merino asked if Mr.Sheatz felt that was equivalent to the requirement for preparing a CEQA and taking a project all the way to City Council? Mr. Sheatz stated he had no opinion on that. Commissioner Whitaker asked if the applicant had been assessed the penalty under the statute? Mr. Sheatz stated the two penalties that were listed; a Civil Penalty in Section 1.08.010 of the OMC, which was a reference to misdemeanor charges, and the other penalty Page 6 of27 Pages Planning Commission Minutes February 4, 2008 70f27 year from the date of demolition for re-issuance of a referenced a waiting period of 1 building permit. Commissioner Whitaker asked if the recent application was made after a I-year waiting period? Mr. Sheatz stated he believed the original structure was demolished in February, 2006. The Staff Report noted the City issued a stop work order in April, 2006. Ms. Roseberry stated the recent application was obtained no more than four months ago, and definitely a year from the demolition date. Chair Imboden asked for a reading of the introductory statement from the demolition Ordinance. Mr. Sheatz read from the Ordinance: "Purpose and Intent - the demolition review process had been established to preserve the integrity of the City's cultural and architectural history, for that reason a specific demolition review process had been established for historic districts and structures. The provisions of the section shall apply to the demolition of 1) Any structure within an established historic district that was over 120 square feet in area 2) Any structure listed on the National Register at any location within the City." Chair Imboden asked if a project such as the one they were reviewing were to come forward involving a request for demolition, would the City require plans for the replacement structure at the same time? Mr. Sheatz stated yes. Chair Imboden stated a lot of time was being spent talking about a penalty, the point he wanted to make was another area in the demolition Ordinance with the main point being preservation of architectural heritage. Whether an applicant was punished for intentional or negligent demolition was one issue. The intent in the demolition review process was to preserve the architectural heritage of the community. Whether an applicant was punished or not did not necessarily address that issue. He wanted to make it clear that there was another level to the Ordinance. Mr. Sheatz stated he did not disagree with that. He wanted to clarify that the appellant had raised the issue that the Demolition Review Ordinance was not followed. Staffs response was after the demolition had occurred the reason the Ordinance had not been followed was due to the lack ofthe ability to grant or deny the permit. Chair Imboden stated he understood that issue. Discussing punitive matters was not answering the questions that were being asked. Commissioner Steiner stated the legislative purpose was common to any penalty provisions of any statute, there was intent stated followed up with methods of deterrents. He asked if the presence of the punishment provisions in the Ordinance to be read in Page 7 of 27 Pages Planning Commission Minutes February 4,2008 8 of 27 conjunction with the purpose of the statutes existed in fact to effectuate it? Mr. Sheatz stated yes, the penalty was in place to insure that the process was followed. Commissioner Steiner asked if a person was under the impression that the statute as written created an incentive to disregard it, wasn't the issue that the person had related directly to the statute? Mr. Sheatz stated yes. Commissioner Bonina asked how closely did the replacement structure proposed by the homeowner match the architectural style and the structure that had been there? Mr. Ryan stated it was larger than the original structure. There had been multiple additions to the original structure as well. The conditions and Staffs recommendations for board and bat siding would bring the building closer to conformance with a Cottage style. Chair Imboden stated they would be looking at the years of significance to the historic district. He asked if there was an opportunity for the applicant to make the project more closely reflect the cultural resources as they existed from the significant period? Mr. Ryan stated there were things the applicant could do, including the DRC recommendations. He had also spoken with the applicant to suggest using board and bat siding, as duplicating the exterior materials would be important to conforming to the Cottage style. Chair Imboden opened the Public Hearing and asked the appellant to come forward. Jeff Frankel, address on file, stated the Old Towne Preservation Association felt it was necessary to bring the appeal forward for a number of reasons. The Old Towne Design Standards, page 9(4)(a) which read: City Council must review the demolition of a community structure and generally an EIR would be required. The project was not in conformance with the Old Towne Design Standards. He handed out additional information to the Commissioners. Mr. Frankel stated they felt the Planning Commission should have reviewed the project, as it was the OTPA's opinion that a negative declaration or EIR should have been required, therefore, Planning Commission would have reviewed the project. He sited a memo from Ms. Roseberry that was included in the packet. As an in-fill project it would also require Planning Commission review. Mr. Frankel stated the DRC was asked to review the project with limited environmental assessment for a final determination, basically as an in-fill project. The DRC was at a loss as to how to approach the project, as they had not been given any direction as how to review the project. The Staff members who had made the policy that CEQA did not apply were not present at the meeting to advise the DRC. Legal Staff that had been present, who had not been briefed, confused the Committee further by telling them that the environmental portion of the project was not within their purview, which was not the case. They were asked to review the applicant's assessment, which was in effect part of Page 8 of 27 Pages Planning Commission Minutes February 4, 2008 90f27 an environmental review. There was no direction and much confusion as noted in the minutes. At times the Committee and Staff referred to the action as a collapse vs. a demolition, and if that had been the case it would be inconsistent with the Secretary of Interior Standards that stated precautions must be made to prevent a collapse. Mr. Frankel continued; the applicant was required to prepare a cultural and historic assessment of the property, which was the extent of the environmental review. In their opinion it was not appropriate for obvious reasons, for the applicant to complete his own assessment. A qualified consultant should have been involved. It was their belief that the project required CEQA review and an EIR to determine how to mitigate the loss. Although the activity was carried out without discretion or review, as stated in a January memorandum, it would require discretionary review that it had not received. The OTP A disagreed with Staff that CEQA only existed with the proposed environmental impacts of a proposed activity prior to its approval. Mitigation and loss assessment could be made prior to or after demolition occurred. The City's position that since the structure no longer existed there was nothing to review, did not make sense? He disagreed with that position as the review would be of the action and subsequent impacts. An environmental review of the action would help determine the appropriate direction to take, whether it would be reconstruction or otherwise, as well as cumulative impacts. Mr. Frankel stated the project should be reviewed as if it was still standing. As to the definition of baseline, Staff stated that it was normally defined as an existing physical condition. Since the structure was demolished, a fair argument could be made that baseline could refer to the condition prior to demolition. He agreed that this was the same project that had been brought forward and it was not a new project. Now they needed to deal with the illegal demolition. In reference to CEQA guidelines, Article 9, Section 15125, regarding baseline, the section referred to contents of environmental impact reports. Their point was that there was no environmental impact report and how could that relate to the project? It was difficult to understand how Riverwatch vs. San Diego County related to the project, as it referred to an existing EIR as well. Mr. Frankel stated in addition, CEQA review could not be a substitute for punishment and should be used in conjunction with the Ordinance for Environmental Review to determine an appropriate direction for the project after demolition. The action of the demolition and the impact on the district required review. If they agreed with Staffs position that CEQA did not apply, one would think that with the Orange district being one of the most unique and the largest in the State, that the City would explore the environmental impacts of the action - mandated or not. The OTPA's opinion was the correct course of action would be a comprehensive environmental review and depending on the findings a reconstruction per the Secretary of Interior Standards. It would involve recreating the structure utilizing the materials matching the original structure as closely as possible and using the original architectural style and constructing on the same footprint. The project approved no longer resembled the original structure. The design had been changed; the pitch of the roof was inappropriate and more suited to a Craftsman Bungalow. The DRC was trying to avoid that during the initial review, and it was stated in the minutes. In reviewing the applicant's drawings, the proposed replacement structure did not depict the form, features and details of the original structure, as suggested by Staff. Unfortunately, the DRC did not receive the direction needed and the Page 9 of 27 Pages Planning Commission Minutes February 4, 2008 10 of 27 project was categorized by Staff as a combination reconstruction/in-fill. What was approved was a design similar to a Craftsman Bungalow, which did not meet the standards for reconstruction. He stated what the OTP A would like to see was a reconstruction that would be consistent with the Secretary of Interior Standards for reconstruction. Mr. Frankel stated in closing, Staffs approach to the review of the project was inconsistent with the CEQA guidelines and Secretary of Interior Standards and the Old Towne Design Standards. Direction to DRC resulted in approval of this inappropriate project. Since the project did not meet the standards it was not exempt and CEQA should apply. They needed to deal with the review issue to discourage similar activity and revise the Ordinance to fully address legal and illegal demolitions with appropriate review provisions as to the impacts, and to also include appropriate penalties. Chair Imboden opened the hearing for Public Comment. Janet Crenshaw, 280 N. Cleveland, Orange, stated she was a member of OTPA. The project was an old project and she was at the initial DRC meeting. She stated she remembered the applicant wanting to match posts to others he had seen and make it into a Craftsman house and not a Cottage style house. She was suspect of everything that had happened and she did not want to see any homes in the area go down. Tom Loughrey, 259 N. Orange, Orange, stated he was a member of OTP A. The situation was remarkable; they had a situation that was a loophole big enough to drive a truck through. The idea that a demolition could occur and of all the things a demolition would require could suddenly be avoided. A project could come back and the only penalty incurred was time and double fees. It was hard for him to imagine it was ever the intent of anyone to think of CEQA as a penalty as he felt it was a tool. Someone could set up a situation that would permit this kind of thing and be willing to accept the fact that it would take them an extra year and a double fee payment. In the scope of a construction project, doubling the fees was fairly minor. He felt what they were seeing was a situation where eventually another property owner could do the same thing, and another after that. An historic property was lost, any action that the OTP A took, any action that the City took would not bring the property back. The Commission had the opportunity to prevent that type of thing from happening again. Craig Prestininzi, 804 E. W ashington Ave, Orange stated he was the homeowner. They had purchased their first home in Orange four years ago. They wanted to fix it up and had gone through the DRB process. The home did not have concrete footings up front, the walls were substandard, and the floors were sloped. They wanted to fix those things and went through the process of obtaining permits and were approved for those projects. They were praised for their efforts. The project had been approved in two parts; there was a small 400 square foot addition to the back of the residence and the revitalization of the front part. All the building permits showed that new concrete footings were to be installed, upgrading of what they thought were 2 x 2 stud walls into 2 x 4 stud walls to accommodate insulation, change the TIll siding to something historically significant, and to change the roof slope to a more uniform design. Page 10 of27 Pages Planning Commission Minutes February 4, 2008 11 of 27 Mr. Prestininzi stated the home was built in 1917 by a day laborer and it was built as fast and quickly with subsequent additions on the east and backsides of the house. The home had a very unusual look and they wanted to fix that. He went through the process of DRB and took photographs of other building details, which was a request made by the DRB. At every point in the process he had accommodated what DRB requested in terms of changes. During construction, when the TIll siding, doors and windows (which were acting as a movement frame) were removed the house collapsed. They tried to prop up the house, and came to the conclusion after reviewing the plans that the only items that needed to remain were the wall studs. As it was single wall construction, the studs had been sitting on the ground and were rotted and termite ridden - there were no studs. As it was a construction issue, there were no studs when the house collapsed, and it was their mistake that they went forward with construction. They should have made a phone call. Mr. Prestininzi stated that they continued to go forward with the plans precisely as they had been permitted. A few weeks later the City issued a stop work order. It had been more that two years and he and his wife were living in a 550 square foot back house. They had been working with the City, as well as meeting with the City Attorney on how to best remedy the process. A demolition would not have made the project advantageous to them. They were not seeking a larger house or a special building. He had been fighting tooth and nail to have the City allow them to build within the same footprint. There was a Variance requested specifically for that purpose. They wanted to build exactly what was permitted in 2004, adding some details to make the home nicer. They followed every recommendation. He was here to try to get a house finished. They had to resubmit due to the Variance denial that caused them to move the house against historic standards. He did not know what else the City could punish them with; they had. complied with everything the City had asked them to do. If they had done this in the dark of night and had tried to build something out of character he could understand his community being upset, however, the permits were clear. The only items missing were the 1 x 12's that were rotted and termite ridden. The collapse was never intentional. Chair Imboden stated it was a single wall construction house. With the removal of siding and windows that led to its collapse; he asked if they had not noticed the single wall construction prior to the collapse? Mr. Prestininzi stated they had realized that, one day prior to the home coming down. Chair Imboden stated once you noticed that the project continued to move forward. When had they noticed that there were no studs? Mr. Prestininzi stated about one day prior to the home collapsing. It happened very quickly. Chair Imboden stated that the plans had been changed and Mr. Prestininzi had agreed to the changes requested by the DRC. He wanted to clarify that most of the changes that the DRC had requested were the removal of Craftsman elements. This was not a Craftsman Bungalow and asked if he understood the direction that the DRC wanted him to go in? Mr. Prestininzi stated he understood and was not arguing to move forward in that direction. Page 11 of 27 Pages Planning Commission Minutes February 4,2008 120f27 Chair Imboden stated there was discussion regarding placement of the original structure and now that the City did not approve the Variance, in a perfect world did the applicant want to reconstruct with a 3' set back? Mr. Prestininzi stated yes, they did not want to move away from historical standards. Chair Imboden stated on the historic resource report he appreciated the effort the applicant had gone to, however, he was not clear what the final assessment was in terms of the historic significance of the structure. Mr. Prestininzi stated two assessments were provided. He asked if Chair Imboden wanted him to quantify how the building related to other structures, and he did not quite understand what he was being asked? Chair Imboden stated he may need to ask Staff for the purpose of the historic assessment. He assumed what was written was a validation of the historic significance of what existed. Mr. Prestininzi stated, based on City records, it was a contributing structure. He understood that the finding, which was approved, was essentially an historic record ofthe property. It was a quality assessment. Commissioner Bonina asked with the first application that included the rehabilitation and restoration of the structure, was it the homeowner's intent to restore the home to its prior beauty? Mr. Prestininzi stated he didn't think prior beauty was a proper statement, the permits allowed for them to repair the property structurally and also to change the roof form and make the home more aesthetically pleasing. Over time there had been a hodge podge of various designs that were not related to each other in design or scale. Their intent was to fix some of the original elements. Commissioner Bonina stated he thought the homeowner had stated they were trying to rehabilitate and restore the property, trying to match historical materials? Mr. Prestininzi stated they did not go forward with a board and bat, they had asked for lapped siding and they had tried to match design elements that included the windows. The design intent was not to recreate the structure as it had been in 1917. One of the problems that they had encountered was trying to determine what was original, was it original 1940's or 1917, or to match what was original in 1984. There wasn't anything that they could clearly document as being a significant portion of the building that they wanted to restore. They were keeping the footprint; they were keeping the scale and some of the design elements and trying to create a building that would last another 80 years. Commissioner Bonina asked if the plans that were previously approved essentially spoke to structural repair and did not specifically address the aesthetics, with the exception of the roofline? Page 12 of 27 Pages Planning Commission Minutes February 4,2008 13 of 27 Mr. Prestininzi stated the permitted plans for the front portion of the property included new footings, upgraded new stud walls, an upgraded roof system and replacement of windows. It also included new interior and exterior finishes. Commissioner Merino asked if Mr. Prestininzi had a design professional working with him and ifhe was a licensed architect? Mr. Prestininzi stated he was a design professional and a graduate of architecture school. Commissioner Merino asked when Mr. Prestininzi had not seen the studs wouldn't that have been a tip off that there needed to be some structural evaluation completed? Did he understand the significance of not finding structural elements in a building? Mr. Prestininzi stated they had thought there were 2 x 2 wall studs, which would not have been unusual. He was not familiar with single wall construction and only one day passed between realizing there were no studs and the collapse of the building. They did try to prop it up. Commissioner Merino asked if it had occurred to him to call the structural engineer when the problem occurred? Mr. Prestininzi stated no, as it would not have changed the design. The intention was to marry 2 x 4 studs to whatever was existing. Commissioner Merino stated a call to the engineer might have prevented a collapse. He stated that the homeowner had made the comment that due to the lack of uniform historical quality to the building they were picking and choosing different design elements, and asked did it occur to him that those historic qualities were part of the historic contributing nature of the project within themselves? Mr. Prestininzi stated yes, they realized that and it was part ofthe DRB process. Commissioner Merino stated the DRC continued to give the homeowner feedback on design elements. He asked if the Planning Commission required specific design elements for the project to move forward would the homeowner be willing to comply? Mr. Prestininzi stated yes, he was willing to honor any request in order to get the home permitted. Chair Imboden stated the project was being looked at as a reconstruction. Mr. Prestininzi stated they were fine with any recommendations the Planning Commission made. He stated what was submitted was based on what had been previously permitted. Chair Imboden stated he was not looking at the first permit, as they were to look at the current project and if there was a way to mitigate the loss. He felt that there was not a way to mitigate the loss as the resource was gone. In looking at the original structure he Page 13 of 27 Pages Planning Commission Minutes February 4,2008 140f27 saw a single gable structure with an addition to the side. In looking at the proposed project he did not see that anymore, he saw a broader house with a shallower roof and that the form had changed. The siding replicated non-contributing fabric of TIll siding, and would the homeowner agree to move in the direction of representing the historic nature of the house and see the home on the 3' setback? Chair Imboden stated he would like to see a reconstruction. He was struggling with the complete loss of an historic resource that could not be replaced and he was looking at the best way to move forward. Mr. Prestininzi stated they had no problem in proceeding in that direction. Commissioner Whitaker stated City Staff provided the elevations from the 2004 approved plans. The elevation looked like the elevations submitted in the most recent application. He was concerned with going back, after the DRC had approved the design twice, that they would go back to the homeowner on an item on appeal due to a procedural issue, and ask the homeowner to spend more money to change the design. He felt they might not be allowing adequate due process and going back on approvals that were already given. Chair Imboden stated the reason it was on appeal was based on that review. Commissioner Whitaker stated Chair Imboden's suggestion was for the homeowner to go back to add a demarcation in the gable and more closely resemble the historic form and asked the homeowner if he understood that? Mr. Prestininzi stated he was hoping that they could stay away from changing the roof; he had a significant amount of engineered trusses that he wanted to use. In terms of aesthetics in changing the siding he did not have issue with that. First and foremost he and his wife wanted a house. Chair Imboden asked the appellant to come forward to make any additional comments. Mr. Frankel stated the main issue was the form of the original structure. The roof was the main element that needed to be changed. A low-pitched style roof was a Craftsman element. If the City was labeling the project a reconstruction they needed to go in the direction of using the original form as the original structure and building on the same footprint. He had a problem with the original design and would like to see something that more closely resembled the original structure. Commissioner Bonina asked Mr. Frankel, in addition to the desire to bring it back to a similar historical design he also mentioned the potential impact to the district, was that something that needed to be resolved? Mr. Frankel stated they wanted to make sure there was some form of review process. The review process in place was CEQA. Whether it was found that the loss could not be mitigated or it could somehow be mitigated, there needed to be an avenue to get to that end. It appeared that what the City and homeowner had gone through was mass confusion as the project had gone in several directions with no order to it. Cumulative impacts needed to be considered. It was not much of a punishment to have to wait one Page 14 of27 Pages Planning Commission Minutes February 4,2008 150f27 year and have double fees, if someone wanted to intentionally get rid of their historic structure and build a new house the penalty was not much. They would like to see stiffer penalties; some Cities had a 5-year waiting period and additional fines. He felt the Ordinance was not working and the system the City had to deal with the situation was not working. Chair Imboden closed the public hearing and brought the item back to the Commission for discussion. Chair Imboden stated in reviewing the minutes from the DRC hearing, he was more than a little surprised at the decision they were asked to render based on the questions that they posed. It was clear in reading the minutes there was a level of comfort they were looking for and that did not happen. The DRC did the best that they could without having adequate information laid out before them. The project came to the Planning Commission based on that process. They had a loss of a contributing structure. If they were looking at replacement it was not unreasonable to bring the replacement structure as close to the historic structure as a way to mitigate the loss. He felt the homeowner was willing, at some level, to comply with that. They spoke about punitive issues and he felt that was not relevant. The applicant had waited a year to come back. He wanted to see a demolition review that worked to protect the historical and architectural heritage of the community. Penalties did not necessarily address the loss of a cultural resource. Chair Imboden stated in looking at the Secretary of Interior Standards for reconstruction clearly what was not recommended was executing a design for a building that was never constructed historically. When he looked at the plan, that building never existed on that site in that form. The standards clearly recommended against that. There was another recommendation that read recreating the documented exterior features such as the roof shape, the coverings, architectural detailing, the windows and entrances. He was referring to this when talking about the roof shape and siding. What was not recommended was the use of substitute materials that did not convey the appearance of the historic building. They had established that TIll siding was a non-contributing material. Lastly, the standard discouraged omitting a documented exterior feature or rebuilding a feature that altered the historic design. If we accept the project it would be reconstructing something that never existed on the site. Commissioner Merino stated in looking at the matter at hand, which was an appeal, he asked Mr. Sheatz if a reasonable method would be to uphold the appeal and direct Staff to go back and look at the project addressing Chair Imboden's suggestions? Mr. Sheatz stated in upholding the appeal, if the intent of the Commission was to put the structure back in its original location there was another issue which required a Variance. If that was the intent it could be specifically called out, as that would need to be applied for. Commissioner Merino stated the homeowners had resigned themselves to denial of that Variance. If the appeal was upheld with the plan as proposed and the suggestion in design changes, in order to keep this project moving would that be an option? A decision would need to be made initially on the appeal, they would need to get to a point which Page 15 of27 Pages Planning Commission Minutes February 4,2008 16 of 27 would allow the homeowners, City Staff, and the Commission to recreate the historical resource that was lost. Mr. Sheatz stated under the code section that would be allowed, there is a comfort level in designing it from the dais. If the Commission wanted the home back in the original placement on the site it would require the processing of a Variance. Commissioner Merino stated that would be taking the project back and delaying the project further. They had come so far and they wanted to avoid making the homeowner go back through the process. Giving the homeowner the benefit of the doubt that the collapse occurred accidentally, the City wanted to assist them in moving forward in getting as much of the resource back and the Variance could be a key issue. Chair Imboden stated he would not accept the project only with the 3' set back vs. the 5'. Commissioner Merino stated he wanted to craft a motion that everyone could be supportive of, a solution to recreate the lost historical resource and enable the process to continue to move forward. Chair Imboden asked Mr. Prestininzi if the foundation currently sat on the 3' set back or the 5' set back? Mr. Prestininzi stated he would like to move forward with the 5' setback. Commissioner Whitaker stated the demolition was not what anyone wanted. He felt the applicant did not benefit from the demolition. In reviewing the aesthetics of what was proposed and approved by the DRC in 2008, it was exactly the same from an elevation point of view of the project that had been approved in 2004. If there had not been a demolition there would be an approved and built project that had been initially proposed. What had happened was the second bite of the apple was coming from the appellant, as the appellant stated that they should have appealed the project at the time when they did not agree with the design of the gable. The applicant had been punished accordingly and the Commission was not a legislative body and they could not create law or new procedures from the dais. CEQA was a permit oriented, permission oriented statute and the review happened prior to it. The opinion of the City Attorney was something he could rely on. CEQA could not be done after the fact. Based on his understanding he would vote to deny the appeal. Commissioner Steiner stated he agreed with Commissioner Whitaker he felt that the reason they were here was that the appellant was unhappy with the original result and found some basis to ground the appeal in which had been discussed very little. It was troubling. He understood that the homeowner was desirous of doing whatever the Commission recommended and he was not at all comfortable in asking the homeowner to make concessions from the dais, when the downside of not agreeing was so potentially onerous. There was a great deal of discussion about the punishment not being sufficient, review of the action was a phrase that was used, and those things related to punishment. If there was a feeling that it was so easy for a homeowner to knock down their house and wait a year the answer would be in correcting that process. If the punishment was harsh Page 16 of27 Pages Planning Commission Minutes February 4,2008 170f27 enough violations would decrease. The fact that the home collapsed allowed the appellant this opportunity and he was inclined to deny the appeal as well. Commissioner Bonina stated he was not interested in penalizing the homeowner, nor was he inclined to penalize the historical district. There was discussion with the applicant of a reasonable and viable direction in allowing the property to be redeveloped to some degree of historical standards. He felt it was not unreasonable. He would support a concept of upholding the appeal and allowing the homeowner to go back through the process, a very abbreviated process, to develop a building that was more historically appropriate for the site. He also wanted to understand the overall impact to the historic district with this loss. Commissioner Merino stated it was a difficult decision, and an historical resource was lost. If the homeowner was willing to step up as a member of the community to help make this right, it would be a good thing. He appreciated the fact that the homeowner was willing to do that. He was prepared to make a motion. Mr. Sheatz stated that the appeal was based on procedural issues and the City's failure to comply with CEQA. In reading the Staff report the planner had gone to great lengths to explain the process and his analysis was that the project was categorically exempt; the project complied with the Secretary of Interior Standards and so forth. If the appeal was to be upheld, in accordance with what was stated in the appellant's statement the Commission needed to be clear whether it was a compliance issue or a design issue, that would give the planner specific direction to take action on. Chair Imboden stated he was not looking for an Environmental Impact Report, he was not looking to run the project through CEQA and there was no need to burden the project any further. Mr. Sheatz stated they needed to speak to the appeal. Commissioner Merino stated one of the items in the appeal had to do with the unlawful demolition of a contributing historic resource. He felt what the Commission was trying to get at was the replacement of that structure and it was an element of the appeal. Mr. Sheatz stated they could make a finding based on design, if the project needed to come back from a design standpoint. If there had been an illegal demolition the only remedy or recourse from an illegal demolition standpoint were the provisions of the Ordinance. Chair Imboden stated the Ordinance was in place for purposes of a penalty. Mr. Sheatz stated the demolition review process only applied when a demolition permit was applied for and that was not the case. Commissioner Whitaker stated the appeal was very specific; it was appealing that the CEQA review process was not done post demolition. He asked if the Commission could uphold the appeal because they felt that was correct or they could deny the appeal Page 17 of 27 Pages Planning Commission Minutes February 4, 2008 180f27 because they found it to be incorrect. He found nothing in the appeal that spoke about a design issue or that DRC had found design issues. In his findings he felt that CEQA could not be applied after the fact, and could they uphold and appeal based on design factors when design factors were not the issue? Chair Imboden stated the design factors he was speaking of were not just aesthetic issues. There were factors that would help to preserve the historic significance of the community. They had a difference of opinion, whether it would simply begin and end with punitive measures or whether the intent of that could be carried into the design process. He disagreed that if the project had followed what he believed to be the proper process, that the design of the structure would have been different. The DRC posed very straightforward questions and concerns and he felt that those questions were not adequately responded to and he supported the appeal based on that process. Mr. Knight stated he appreciated Commissioner Bonina's point regarding a cumulative analysis; however, it was out of context in looking at just this home. An analysis would need to be done on the impact to the district. Within the next year or so Staff would be taking a cumulative analysis on actions taken over a number of years in the historic district and cumulatively what all those actions had done to impact either positively or negatively the historic district. That would be a more accurate cumulative analysis rather than just looking at one home and its cumulative analysis of the district. If the appeal was denied, the project would be approved to move forward and they would be adopting a categorical exemption under a class 31 to the project. It could be the approach of the Planning Commission to deny the appeal, yet still noting the design issues and those recommendations could be made. The applicant was entitled to due process in looking at those issues. The item could be continued or referred back to the DRC. The process could be continued based on design issues; and would a reconstruction be a benefit to the historic district. Ultimately the applicant was entitled to due process. Commissioner Merino stated he was hearing that in order for the Commission to make a finding based on legal parameters, he did not feel he could make the initial motion that they had discussed. Based on Staffs information, the appeal could be denied and Staff could be directed to work with the homeowner and sent back to the DRC. Chair Imboden asked if there was a consensus that the project needed some revision? Could it not be the finding that the project as it stood was not categorically exempt from CEQA and the item could be continued to come back to the Planning Commission or go back to the DRC, giving them the opportunity to revise the project to come into compliance with the Secretary of Interior Standards for reconstruction? Mr. Sheatz stated yes that could be done. Chair Imboden felt the applicant was not interested in going back through the Variance process and that would have brought the project back to the Planning Commission. He did not have a problem sending the project back to the DRC and giving them the opportunity to take a final action. Page 18 of 27 Pages Planning Commission Minutes February 4,2008 190f27 Commissioner Merino stated he felt the project belonged with the DRC with the feedback from the Planning Commission. Commissioner Bonina asked if they could both deny and or approve the appeal and create another action to send the project back to the DRC, or would the proper process be to continue the item to readdress everything? Mr. Knight stated yes, that was an option. The appeal could be upheld with a very specific reason as to why it had not met CEQA and why an EIR had not been prepared. Ms. Roseberry stated Staff could try to synthesize what had been stated and put that together and work with the applicant on the design. If there were specific things they needed to see from a design standpoint it needed to be outlined in the motion. Commissioner Merino made a motion to continue Appeal No. 522-07 - Design Review Committee No. 4260-07 - Prestininzi Residence to a date uncertain, with the recommendation for the following design changes: . Overall form and roof form be more inline with the original structure Materials, specifically siding, be replicated to bring back the historic fabric of the original structure. . SECOND: AYES: NOES: ABSTAIN : ABSENT: Commissioner Bonina Commissioner Bonina, Imboden, and Merino Commissioner Steiner and Whitaker None None MOTION CARRIED (3) DESIGN REVIEW COMMITTEE NO. 4317-07 - ZIRKLE CORNER A proposal to modify and existing approved fayade plan DRC No. 4156-069, approved by the Planning Commission on January 15, 2007. The revised proposal includes installing an additional door on Maple Avenue elevation, replacing the metal canopies with retractable awnings, and installing a wood paneled wainscoting or bulkhead on the storefront. LOCATION: 177 N. Glassell NOTE: The proposed project is categorically exempt from the provisions of the California Environmental Quality Act (CEQA) per State CEQA guidelines 15331 - Historical Resource Restoration and Rehabilitation Class 31- consists of projects limited to maintenance, repair, stabilization, reconstruction of historical resources in a manner consistent with the Secretary of the Interior Standards for the Treatment of Historic Properties with Guidelines for Preserving, Rehabilitating, Restoring and Reconstructing Historic Buildings. Page 19 of27 Pages Planning Commission Minutes February 4, 2008 200f27 RECOMMENDED ACTION: Approve DRC No. 4317-07 subject to the conditions listed in the Staff Report Senior Planner, Dan Ryan, gave a project overview consistent with the Staff Report. Chair Imboden opened the hearing for any questions to Staff. Chair Imboden asked in the current Ordinance that addressed signage if there was a blanket statement that signs shall be preserved and did not have specifics, was that correct? Mr. Ryan stated yes, that was correct. Commissioner Merino asked on Sheet A2, the alternate floor plan for the electrical room, ifthat had been given to the Commission to review as an option? Mr. Ryan stated the DRC made a recommendation to install an additional door on the Maple side. The Planning Commission would make a final determination. Chair Imboden opened the public hearing and asked the applicant to come forward. Doug Ely, 112 E. Chapman, Suite. E, Orange, thanked the City and Staff and he stated they were in the process of restoring the building. During the process they found more features than they thought possible to restore. The original approach was not to remove the signage band. The top of the parapet walls and sign band were to remain plaster, as they thought the brick that was behind those areas was common brick. They were pleased to find the plaster was installed over lathe that had been screwed into grout joints. The brick was largely undamaged; there were a few areas of brick that required replacement. He stated they were working with masons that were doing a superb job. They had a sense of passion and they were able to fully restore the fayade back to its conception of 1912. The Zirkle family was present as well as Mr. King, with Old Towne Grinder and Ice Cream who was the tenant for the space. Mr. Ely thought they were present to affirm the DRC direction to replace the previously approved metal canopies with a canvas awning and an addition of a door to the electrical room. They were also proposing to install wood at the base below the windows. The initial recommendation was to treat the area with stucco, since they were able to restore the fayade they wanted to add a wood treatment to the area. Mr. Ely passed out drawings and examples of the wood treatment to the Commission. They proposed retractable canvas awnings and at the base of the wall below the windows a wood treatment. He directed them to look at a photo from 1919 that was two businesses south of their location. That building had a wood treatment below the windows and they felt this was an appropriate application for their building. They had looked at installing brick and found if brick was installed in line with the fayade that they would not be able to match the brick and felt the brick would need to be painted. They felt the wood treatment was an appropriate design approach for their particular building. He stated Mr. Ryan had spent time discussing the signage band and he wanted to share their plans for that area. Page 20 of 27 Pages Planning Commission Minutes February 4,2008 21 of 27 Their approach was to restore the existing signage that was most historically significant. Mr. Ely passed out photos to the Commission and stated when the plaster was removed from the signage band there was a Sens Market sign that had been painted out in the 1950's. There was a black band that was painted over with the other signage underneath that. The owner directed the contractor to remove the black band and what was starting to appear was the word Grocery. He had met with Ken Tye from the OTP A and he had agreed with their approach. They would be meeting with a signage conservator as their intent was to determine how best to refurbish the signage. In the future the tenant would submit a sign package for Staffs review. There was existing brick on the signage band that needed to be restored. This was completed by chiseling out the brick, turning it over and re-grouting the brick in place. They had been stopped by the City until they could make a determination regarding the signage. They wanted to proceed on restoring the signage that was there. Chair Imboden opened the hearing for Public Comment. Jeff Frankel, address on file, representing the OTP A, stated they were pleased that the stucco had been removed and revealed a beautiful brick fayade and a number of painted signs. Unfortunately, the applicant's contractor was instructed to remove the sign and clean the brick. The applicant stated they were restoring the sign age and removing the layers to reveal the earliest sign. Witnesses, including City Staff, had stated that the individual who was removing the sign was using Jasco stripper, which was very caustic. This was evident in looking at the project. The paint was removed completely in some areas where there had been signage. He was pleased that the applicant had consulted with the Old Towne Sign Preservation Committee. The Old Towne Design Standards stated that painted wall signs having historic significance shall not be removed and the building owners were encouraged to maintain the historic character. The removal action was in direct violation of the Old Towne Design Standards. The applicant stated they were trying to return the sign to the period of significance. The period of significance was from the period built through 1940 and the sign should have been preserved in its found state. Mr. Frankel stated they would encourage the sign be preserved in its current state. The Old Towne Sign Preservation Committee had come to them for donations and they had assisted them with funding. The Old Towne Sign Preservation Committee claimed they would not restore or enhance signage but rather, preserve the signs in the state that they were in. Mr. Frankel stated a few weeks later witnesses stated that workers were removing brick from the front fayade parapet with a hammer and throwing the brick into a dumpster. The applicant had stated that they were simply reworking the brick. He had gone by the location and the bricks looked good. There was no evidence that the wainscoting on the other building had been wood, the adjacent buildings were a different style and they felt brick would be more appropriate. Chair Imboden closed the public hearing and brought the item back to the Commission for discussion. Commissioner Bonina asked the applicant what were their thoughts on installing retractable awnings vs. a metal canopy? Page 21 of27 Pages Planning Commission Minutes February 4, 2008 22 of 27 Mr. Ely stated metal awnings dated back to the 1940's-1950's. They were part of a design that was present in parts of Old Towne. As there would be no plaster present and they wanted to reveal the detail of the signage band they were able to bring the building back to what it once was. The building never had metal canopies. The building originally had retractable canvas awnings. Commissioner Bonina asked in keeping the historical signage in place and looking at the proposal for tenant signs in the same area, how would that work? Mr. Ely stated the tenant signs had not been designed yet. The Staff Report recommended raised letters or some type of a blade sign. They had not consulted with the tenant to determine the sign design. Commissioner Bonina asked if there would be an application on the brick surface to maintain its integrity? Mr. Ely stated they were currently researching sealers. The brick needed to be sealed, as it had been concealed for a number of years and they were in the process of cleaning and sealing the brick. Commissioner Whitaker stated in referring to the wood treatment under the windows, historically the openings were garage openings. There had not been windows initially. Mr. Ely stated the building originally housed fire trucks. It had large garage doors and when it was converted to the market there were wood display shelves that were placed in that area. There was no historical precedence for brick or wood. When brick was installed on buildings in Old Towne it was typically at the face where it flushed out with the fayade. On their building it would be set back and they could not find matching brick. Chair Imboden stated to clarify for the record the applicant was bringing the building back but also making changes. It was not purely a restoration, they were adding features. Mr. Ely stated yes, that was correct. They were restoring the fayade and adding additional elements. Mr. Ely stated he wanted to respond to Mr. Frankel's comments. The constant badgering of what their intent on the building was needed to stop. The comments about the workers throwing brick into the dumpsters, was partially true. It was the brick that was behind the coping. The contractor was throwing away old brick that needed to be replaced behind that area. He felt there was a rush to judgment that needed to stop. The building owner had taken it upon himself to restore the building and the building would be in a state much better than it was. He wished that the OTP A would contact them first, before complaining as there were logical reasons for the work they were doing, and they would appreciate if they would become more involved in their process. Chair Imboden asked why was the brick being removed? Page 22 of27 Pages Planning Commission Minutes February 4, 2008 230f27 Mr. Ely stated the brick at the top of the coping and the parapet was badly damaged. It had to be removed and turned around and replaced. The brick had to be taken down and cleaned. There were some pieces of brick that extended full length backwards, in some areas they had to cut the brick and use that with new brick used to fill in the back of that area. Chair Imboden closed the public hearing and brought the item back to the Commission for discussion. Chair Imboden disclosed that he had met with Mr. Ely for review of the bulkheads. He did not feel the proposed wood treatment was at odds with the Old Towne Design Standards and he did not have problems with the project that was being proposed. Commissioner Whitaker made a motion to approve Design Review Committee No. 4317- 07 - Zirkle Corner fayade modifications with the condition that Staff receive from the applicant a cut sheet of the awning design and proposed materials. SECOND: AYES: NOES: ABSTAIN: ABSENT: Commissioner Steiner Commissioners Bonina, Imboden, Merino, Steiner and Whitaker None None None MOTION CARRIED Chair Imboden stated he wanted to respond to the comment made by Mr. Ely regarding their difficulty with moving forward with the project. When people in Old Towne saw historic fabric being removed from a building they became concerned. In terms of the signage, it was understood now that there were layers and the applicant had brought a consultant onto the project. He did not know if OTP A had been the ones to contact the City and if they were involved in the stop work order. He felt they needed to be careful in not sending the wrong message, if someone witnessed demolition of an historic structure taking place, they were entitled to report that. He also encouraged OTP A to meet with Mr. Ely to express their concerns to make the process easier for him and the building owner. NEW HEARINGS (4) CONDITIONAL USE PERMIT NO. 2666-07 AND DESIGN REVIEW COMMITTEE NO. 4255-07 - TESCO (FRESH AND EASY) A request for approval for an ABC Type 21 (Off-Sale General) license for a new grocery market and a Finding of Public Convenience or Necessity. The applicant is proposing exterior and tenant improvements to an existing building for the grocery store. LOCATION: 1803 E. Chapman NOTE: The proposed project is categorically exempt from the provisions of the California Environmental Quality Act (CEQA) per state Page 23 of 27 Pages Planning Commission Minutes February 4, 2008 24 of 27 CEQA Guidelines 15301 (Class 1- Existing Facilities) because the project consists of the operation and licensing of an existing private structure. RECOMMENDED ACTION: Adopt Planning Commission Resolution 05-08 Associate Planner, Robert Garcia, presented a project overview consistent with the Staff Report. Chair Imboden opened the hearing for any questions to Staff, there were none. Chair Imboden opened the public hearing; the applicant did not have anything further to add. Chair Imboden closed the public hearing and opened the item to the Commission for discussion. Commissioner Steiner stated he had visited the Fresh and Easy on Main and Chapman and it appeared to be a great operation and he was glad it was in the City and that another location was being added. Commissioner Bonina stated he was very pleased the operation was being added to the intersection as it was a very good use for the space. Commissioner Merino stated the project was in an over concentrated area; however, it was in a reasonably low crime area that made it acceptable. Commissioner Steiner made a motion to adopt Planning Commission Resolution 05-08 approving Conditional Use Permit No. 2666-07 and Design Review Committee No. 4255-07- Tesco (Fresh and Easy) noting the item was categorically exempt from CEQA. SECOND: AYES: NOES: ABSTAIN : ABSENT: Commissioner Bonina Commissioner Bonina, Imboden, Merino, Steiner and Whitaker None None None MOTION CARRIED (5) CONDITIONAL USE PERMIT NO. 2687-07 - THE T ACO COMPANY A proposal to upgrade the existing Type 41 "On-Sale Beer and Wine for a Bona Fide Public Eating Place" ABC License to a Type 47 "On-Sale General for a Bona Fide Public Eating Place" ABC license in a 3,450 square foot existing restaurant. LOCATION: 1009 N. Tustin NOTE: The proposed project is categorically exempt from the provisions of the California Environmental Quality Act (CEQA) per state CEQA Guidelines 15301 (Class 1- Existing Facilities) because the Page 24 of 27 Pages project consists of the operation and private structure. February 4,2008 250f27 licensing of an existing Planning Commission Minutes RECOMMENDED ACTION: Adopt Planning Commission Resolution 04-08 Associate Planner, Doris Nguyen, presented a project overview consistent with the Staff Report. Chair Imboden opened the hearing for any questions to Staff. Commissioner Whitaker stated in previous applications where there was a restaurant with patio service they had elements of the Alcohol Control Plan refer to gate access, he asked ifthere were conditions for this project related to the serving of alcohol on the patio? Ms. Nguyen stated regarding the patio on the south side of the restaurant, a building permit was already in place to add a gate and the patio was going to be covered. They could also add a condition regarding the service of alcohol on the patio. The serving of alcohol was only by wait staff. Commissioner Steiner stated he visited the restaurant and asked would the way alcohol was being served change? Ms. Nguyen stated she would defer that question to the applicant. Chair Imboden opened the public hearing and asked the applicant to come forward. Tom Borchard, 25909 Pala, Mission Viejo, representing the Castellanos family. He stated they reviewed the resolution and welcomed the conditions associated with the resolution. The restaurant was family style and there was a bar. The bar was not for walk up service in order to purchase alcohol. Patrons would be seated with alcohol being brought to their table. He understood that there would not be alcohol served through the pass through. Although this was a high crime area, the number of incidents at the Taco Factory was zero. Commissioner Steiner stated when he visited the rest~urant they went to the counter and ordered and then sat down. The food was brought to them, and asked if that was the way service would continue? Mr. Castellanos, 1009 N. Tustin Street, Orange, stated they would be going to full table service only. Chair Imboden closed the public hearing and brought the item back to the Commission for discussion. Commissioner Steiner made a motion to adopt Planning Commission Resolution 04-08, approving Conditional Use Permit No. 2687-07-The Taco Company noting the item was categorically exempt from CEQA. Page 25 of 27 Pages Planning Commission Minutes February 4,2008 260f27 SECOND: AYES: NOES: ABSTAIN : ABSENT: RECUSED: Commissioner Whitaker Commissioner Bonina, Imboden, Steiner and Whitaker None None None Commissioner Merino Commissioner Merino recused himself from the item due to a business conflict. MOTION CARRIED (6) CONDITIONAL USE PERMIT NO. 2690-07 -JAPAN GRILL A request for approval for an ABC Type 41 (On-Sale Beer and Wine- Eating Place) License to have on-site consumption of alcohol for the guests of the eating establishment. LOCATION: 2815 E. Chapman NOTE: The proposed project is categorically exempt from the provisions of the California Environmental Quality Act (CEQA) per state CEQA Guidelines 15301 (Class 1- Existing Facilities) because the project consists of the operation and licensing of an existing private structure. RECOMMENDED ACTION: Adopt Planning Commission Resolution 06-08 Associate Planner, Robert Garcia, presented a project overview consistent with the Staff Report. Chair Imboden opened the hearing for any questions for Staff, there were none. Chair Imboden opened the public hearing and asked the applicant to come forward. Dick Eviti, 5905 Winncliff Drive, Riverside stated he was a Real Estate Broker representing the applicant. They had read all the conditions and had one point to clarify. On item #4, sales and consumption of alcoholic beverages; they were to stop serving alcohol at 8:00 p.m. and he wanted to clarify if a patron came into the restaurant at 7:45 p.m. and ordered an alcoholic beverage could the patron finish their drink? Sergeant Bird stated generally speaking service of alcohol must stop one hour prior to closing. The patron could finish their drink, and alcohol service would stop in their situation at 8:00 p.m. Mr. Sheatz stated they might want to think about revising the condition, as it included consumption in the condition. Commissioner Whitaker stated it was standard language that was included in those conditions. Page 26 of 27 Pages Planning Commission Minutes February 4, 2008 27 of 27 Commissioner Steiner asked if they wanted to prohibit consumption of alcohol wouldn't it be stated? Mr. Sheatz stated he could see how it was confusing and could be misinterpreted, that there could not be any consumption one hour prior to closing. If a patron was served at 7:55 p.m. and at 8:10 p.m. they took a sip would that constitute consumption - yes. Chair Imboden stated they could eliminate the word consumption. Commissioner Whitaker stated as the language appeared in other applications, he felt they should leave it as stated. Commissioner Steiner stated they could acknowledge that the Commission's interpretation of Condition No.9 was that restaurant staff would not need to go through the restaurant and seize alcoholic drinks after 8:00 p.m. Chair Imboden closed the public hearing and brought the item back to the Commission for discussion. Commissioner Merino made a motion to adopt Planning Commission Resolution 04-08, approving Conditional Use Permit No. 2690-07- Japan Grill noting the item was categorically exempt from CEQA. SECOND: AYES: NOES: ABSTAIN : ABSENT: Commissioner Bonina Commissioner Bonina, Imboden, Merino, Steiner and Whitaker None None None (7) ADJOURNMENT Chair Imboden made a motion for adjournment to the next regular scheduled session of the Planning Commission held in the Council Chambers on Wednesday, February 20, 2008. SECOND: AYES: NOES: ABSTAIN: ABSENT: Commissioner Steiner Commissioners Bonina, Imboden, Merino, Steiner and Whitaker None None None MOTION CARRIED MEETING ADJOURNED @ 10:32 Page 27 of27 Pages