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2010 - June 7Planning Commission Meeting June 7, 2010 Page 1 of 35 Minutes Planning Commission June 7, 2010 City of Orange Monday 7:00 p.m. PRESENT: Commissioners Cunningham, Imboden, Merino, Steiner and Whitaker ABSENT: None STAFF PRESENT: Ed Knight, Assistant Community Development Director Leslie Aranda Roseberry, Planning Manager Robert Garcia, Associate Planner Chad Ortlieb, Senior Planner Gary Sheatz, Assistant City Attorney Sandi Dimick, Recording Secretary ADMINISTRATIVE SESSION: Chair Whitaker opened the Administrative Session @ 6:51 p.m. with a review of the Agenda. Item No. 1, Minutes from the Regular Meeting of May 3, 2010. No changes or corrections were noted. Item No. 2, Minutes from the Regular Meeting of May 17, 2010. No changes or corrections were noted. Commissioner Cunningham would abstain from the vote, as he was absent from the meeting on May 17, 2010. Chair Whitaker stated on Item No. 4, Thrill It Entertainment, he would want to move the item up in the Agenda as it had a lot less meat to it and he would want it heard prior to Item No. 3, Ridgeline. He asked if there would be a representative from the Police Department present. Associate Planner, Robert Garcia, stated no, there was no alcohol related requests on the item. Chair Whitaker stated he would have a few questions. Commissioner Merino stated he would wait to hear from the applicant and for the presentation of the item before he came up with any questions. Item No. 3, Ridgeline. Commissioner Steiner asked what the procedure would be on the remainder of the hearing for the item. Chair Whitaker stated the Public Hearing had been closed at the last meeting and they would proceed with the applicant's rebuttal, questions from the Commission, close the Public Hearing and then the item would be brought back for any additional questions for Staff and then back to the Commission for further discussion. He stated after all questions were asked, the Commission could have their discussion; as there were a lot of moving parts to the Ridgeline item he would go through the issues from the Staff Report and allow each Commissioner to make their comments. There were 8 main issue items and some were larger than others. On the General Plan issue, on page 16, he would start with the General Plan Amendment, then to zoning. He Planning Commission Meeting June 7, 2010 Page 2 of 35 would follow the order of the Staff Report. Commissioner Merino stated he was prepared to share his comments and move on each issue. Chair Whitaker asked if each issue 3, 4, etc. could be moved on separately? Assistant City Attorney, Gary Sheatz, stated it was o.k. to discuss each issue separately, but they could not make a motion on each separately. Commissioner Merino stated he had understood from the previous meeting that each issue would be voted on separately. Mr. Sheatz stated some of the areas were issue areas, but separate motions were not. needed. Commissioner Merino stated he would be open to changes on any motion he made. Mr. Sheatz stated each issue area, such as residential lots, would not warrant a motion. Commissioner Merino stated, in the Staff Report, there were 5 areas and he had understood that each area could be moved on. Chair Whitaker stated he would go through each issue and a Commissioner could make a recommendation to pass or not pass that issue; or to make changes. Commissioner Merino stated he could make a motion and there could be further discussion about the motion. Chair Whitaker suggested the discussion could continue for an issue and a motion could be crafted after all the discussion was heard. Commissioner Imboden stated his only concern with a recommendation or motion being made individually was that by the time they reached discussion on issue #4, they might have closed it with their recommendation on a prior issue that related to issue #4. Chair Whitaker stated issues 1 and 2 where related to each other, he would allow the Commissioners to use their discretion on making recommendations. Administrative Session closed at 7:00 p.m. REGULAR SESSION: PUBLIC PARTICIPATION: None CONSENT CALENDAR: (1) APPROVAL OF MINUTES FROM THE REGULAR MEETING ON MAY 3, 2010 Commissioner Steiner made a motion to approve the minutes from the regular Planning Commission meeting on May 3, 2010 as written. SECOND: Commissioner Merino AYES: Commissioners Cunningham, Imboden, Merino, Steiner and Whitaker NOES: None ABSTAIN: None ABSENT: None MOTION CARRIED Planning Commission Meeting June 7, 2010 Page 3 of 35 (2) APPROVAL OF MINUTES FROM THE REGULAR MEETING ON MAY 17, 2010 Commissioner Steiner made a motion to approve the minutes from the regular Planning Commission meeting on May 17, 2010 as written. SECOND: Commissioner Merino AYES: Commissioners Imboden, Merino, Steiner and Whitaker NOES: None ABSTAIN: Commissioner Cunningham ABSENT: None MOTION CARRIED Chair Whitaker stated the next item on the Agenda was Ridgeline and with the Commissioners indulgence, considering there was a lot of meat to that item, Item No. 4 could end up being heard at 1:00 a.m. He preferred a change in the order of the agenda and asked for a motion to that change. Commissioner Merino made a motion to change the order of items on the agenda, to move Item No. 4 to be heard prior to Item No. 3. SECOND: Commissioner Merino AYES: Commissioners Cunningham, Imboden, Merino, Steiner and Whitaker NOES: None ABSTAIN: None ABSENT: None MOTION CARRIED Planning Commission Meeting CONTINUED ITEM: June 7, 2010 Page 4 of 35 (3) DRAFT ENVIRONMENTAL IMPACT REPORT 1788-07, GENERAL PLAN AMENDMENT N0.2007-0001, ZONE CHANGE NO. 1243-07, TENTATIVE TRACT MAP 0019-07 (ALSO KNOWN AS TENTATIVE TRACT MAP 17167), DEVELOPMENT AGREEMENT 5600, MAJOR SITE PLAN N0.0496-07 AND DESIGN REVIEW COMMITTEE NO. 4207-07 - RIDGELINE EQUESTRIAN ESTATES Continued from the May 17, 2010 Planning Commission meeting. A proposal to develop approximately 51 acres with 39 equestrian-oriented residential units on 39 minimum one- acre lots with 34 of the lots accommodating private equestrian stables. The project also proposes an equestrian ride-in only arena, open space, approximately one mile of public and 0.7 miles of private trails, private streets, site landscaping, and development of supporting infrastructure necessary for project implementation. LOCATION: 1051 N. Meads Avenue NOTE: The environmental impacts of the project and its project alternatives were evaluated through Environmental Review No. 1788-07 (DEIR State Clearinghouse No. 2007091107) which was prepared in accordance with the provisions of the California Envirorunental Quality Act (CEQA) per State CEQA Guidelines Section 15070 et seq and in conformance with the Local CEQA Guidelines. RECOMMENDED ACTION: Adopt Planning Commission Resolution No. 09-10 recommending that the City Council (a) certify the adequacy of Final Environmental Impact Report 1788-07, (b) adopt Findings of Fact, (c) adopt a State of Overriding Considerations, and (d) adopt General Plan Amendment No. 2007-0001, Zone Change 1243-07, Tentative Tract Map No. 0019-07, Development Agreement No. 5600, Major Site Plan No. 0496-07 and Design Review Committee No. 4207-07 to allow for the construction of 39 residential units on minimum one-acre lots, a public ride-in only equestrian arena, approximately 1.7 miles of trails. Chair Whitaker opened the hearing and invited the applicant to address the Commission and provide his rebuttal statement. Ken Ryan, address on file, stated the Ridgeline response would focus on what they had heard and the few key issues that were raised. Mr. Ryan presented a Powerpoint. He was honored to work in the City of Orange and had for many years and one thing he had learned was that Orange residents were passionate about their community. There was great pride in the neighborhoods and the diversity and if you asked OPA residents where Planning Commission Meeting June 7, 2010 Page 5 of 35 the best place to live was, residents would tell you it was OPA. If that same question was asked of someone who lived on Center or Shaffer they would tell you that was the best place to live. The City of Orange had an aspect that each individual community believed in and were passionate about their neighborhoods. He stated unfortunately sometimes passions overshadowed the truth and fortunately the Planning Commission and City Council had done a good job over the years in separating the emotion from the facts and in doing the right thing. He understood the emotional fond memories in using a private pay to play private recreational facility and having it no longer be available and unable to sustain itself economically. That fact would not change it into a public park and recreation area. Based on the testimony and the public campaign that had been done by a very well known firm that had been hired by some who were opposed to the project, he believed it was unfortunate that, in limited circles, some misinformation and some misleading information had circulated. Mr. Ryan stated he would speak about the facts and begin with the General Plan. In 1971, California Legislature directed that a City's zoning and subdivisions must be consistent with the City's adopted General Plan. In 1990, the Supreme Court held that the General Plan was the Constitution of all future developments. It started with the General Plan, that was the hierarchy. A California Court confirmed that the General Plan was the single most important planning document. All zoning had to conform to the General Plan. It was the same plan that one of the public speakers, Mr. Wirtz, believed had brought up a t-shirt that stated honor the OPA Plan. It was the same plan that allowed for 1 acre lots and the same plan of one of the original authors of the plan, Shirley Grindle, who so eloquently testified that if a golf course went away that 1 acre lots would be allowed. It was the same plan that the City Attorney, in a December letter, during the annexation of 1985, long time OPA leader Bob Bennyhoff was quoted "the OPA community had no objection to down zoning going from 1 acre lots to the open space during the annexation of 1985, however, would be looking at zoning of R1-43-560 1 acre lots in the event the property was ever sold". The City had just spent 5 years updating the General Plan and in that process the City endorsed and acknowledged that the long standing OPA Plan that was adopted as part of the General Plan was the guiding development for the area. As stated and reinforced by the City Attorney in a letter dated December 22, 2009, the 1973 City Council's resolution 39-15 adopted the plan as a part of the Land Use Element to be included in a General Plan for the City of Orange. The resolution had no ambiguity and it was clear in upholding the Planning Commission's recommendation for 1 acre lots and open space for the site, approving and adopting a Land Use Element of the General Plan for a portion of the City and adjacent unincorporated planning area known as Orange Park Acres. That was what the action was all about, not changing the intent or the original letter of the approvals. It was about cleaning up documentation and having a document that accurately reflected the 1973 City Council action that had never been changed. Mr. Ryan stated Mr. Stein had presented an idea that in 1989 when the General Plan update occurred it should supercede the OPA plan of 1973. In 1989 there was no discussion or action to eliminate the OPA plan or overturning of any of the resolutions. The Land Use Plan that was colored green should have had a different marking Planning Commission Meeting June 7, 2010 Page 6 of 35 designating that 1 acre lots for the site were allowed, they could not have it both ways and with the argument that the action in 1989 overturned everything, everyone sitting behind him, whether in support and those who had concerns, probably would have a lot of dialogue. They could not have it both ways and it was not the action in 1989 or the most recent adoption in the General Plan Update, where again the OPA plan was included as the Constitution for the area. One last item on the General Plan and he felt it was very telling; as Commissioners they heard certain things over and over, if he had a penny for each time someone had said to him follow the OPA plan he would be a rich person and that had been the message communicated to the Ridgeline group from the very beginning. No one ever said focus on zoning and ignore the OPA plan. The argument in recent weeks had changed, why was that? He believed because 1 acre lots were allowed and appropriate and supported by the authors of the OPA plan and supported in several documents. Mr. Ryan stated he would speak about zoning. There had been a lot of dialogue relative to that during the last 2 hearings. He presented a chart and stated it showed before 1973 in the County the site had been designated agriculture and the zoning was E-41, 1 acre estates. In 1973 with the adoption of the 1973 plan, other open space and low density 1 acre was the General Plan adoption. It was interesting that the zone remained E-41 1 acre estates and remained that way for a very long time after that. In 1985 when the property was annexed to the City, the General Plan remained the same and there was a small annexation in 1977 for the construction of the club house and from 1973 to 1985 the site was zoned 1 acre lots. The zone change occurred due to a land owner request for tax purposes. In summary on that particular issue, the City Attorney's letter dated 12/22/09 determining the site, allowed for 1 acre lots and Mr. DeBerry's letter quoted the annexation of record from the 1985 action. One of the other issues that they had heard was what would occur if the developer sold the property? No matter who developed Ridgeline, the Land Use would not change and that was why they spent so much time on the documentation he was sharing. Mr. Ryan stated he wanted to speak briefly about park requirements. There was a discussion about the loss of recreation and park uses. He presented a slide outlining the City's requirements. The Quimby Law required 39 lots x 3.11 persons per home x a factor of 3 acres per 1,000, there would be .36 required; less than'/z acre of park space, or for the developer to pay a fee of $370,734.00 for the project. What the proposed project would provide was much more significant than the .36 acres. The proposal included 1.18 acres which included the natural open space, the ride-in only arena which would include tie up areas, picnic benches, and water; there would also be trails throughout the project. The Staff Report included important information and he read from the Staff Report in reference to the impact on park space. He stated the area had never been assumed to be public land, it was a privately run recreational facility similar to the bowling alley. When the bowling alley changed, the City had not required another bowling alley to be built elsewhere. The City had determined that there would be no impacts with the removal of the golf course and tennis club, as they were private facilities. The Ridgeline area was one of the richest park land areas in Orange County, with Santiago Park and Irvine Regional Park and Upper Peters Canyon Park. The region was not devoid of public open Planning Commission Meeting June 7, 2010 Page 7 of 35 space. In the OPA Plan, the specifications for parks were that they had a very low maintenance requirement, pasture land instead of highly manicured landscaping and landscaping that provided service to the rural character environment and oriented to community activities. He believed that the ride-in only arena fit into that category. They had asked for 100% credit given the fact that the requirement was .36 acres and they would be providing 3.53 acres. City Staff had stated that there would not be a credit for that. They would be supportive if the Commission would weigh in on that, and if not, respectfully continue with the argument in front of City Council. He believed that what they were doing went beyond what was required and they should receive some credit and acknowledgement for that. Mr. Ryan stated there was also some discussion about replacing the 52 acres with 52 acres of recreation space, and he believed that was a violation of the Bill of Rights. It would be a take and the Fifth Amendment was very clear that private property could not be taken for public use, no matter how much they would want to force that on an applicant. The City's requirement was .36 acres and Ridgeline would be providing 3.53 acres. He would also state that the City had touted private property rights for a long, long time and there was certainly a process that they were in. It had not allowed for Willy nilly planning and they had been working on the project for 5 years. They had gone before the DRC, Parks and Recreations Commission, a third meeting of the Planning Commission, and there was City Council in front of them. He understood that there was a process to insure what was proposed was consistent and fit in with the community. It was also important, as what they had heard was that residents had not wanted a public park, but had heard to honor the plan, honor the OPA Plan and provide a project that adhered to that document and celebrate the equestrian lifestyle. Mr. Ryan stated there was also quite a bit of discussion about mitigation. There was significant mitigation, a full EIR and within that EIR all impacts within that document had been fully mitigated, except for short term impacts to air quality. The EIR was an informational document. CEQA required that the EIR analyze and provide for specific mitigation measures. Out of the 68 mitigation measures contained in the document, a number of those were related to the open space and recreational aspect. Those were specific mitigation measures to preserve and enhance existing scenic views. The storm water situation would be a better situation than what existed currently with bio swales and the provision of on-site water quality management. There was a provision for the addition of equestrian fencing, trails and aride-in arena. There was a request to re-locate the existing entrance to accommodate horse trailers. There were many mitigation measures. There were also over 100 Conditions of Approval included in the Staff Report. The .proposed project contained mitigation and responded very deeply to the issues with open space and recreation. Mr. Ryan stated in response to the comments regarding the golf course, he wanted to reinforce that E.R.A., a very reputable firm that reviews economics, had been hired and provided Staff with a report that stated even if there was a market fora 9 hole golf course, getting the existing golf course up to grade would cost $4,610,000.00 with an annual income projection of $215,000.00 and the time to realize the investment would be Planning. Commission Meeting June 7, 2010 Page 8 of 35 21 years. It was not feasible to go in that direction. Mr. Ryan stated one of the key issues discussed was the arena site, which was not a mitigation measure, it was not a development condition, and it was included in the Development Agreement as a commitment and intent. It was a gift and the only aspect related to Ridgeline and Rio Santiago. Current zoning allowed for the site was residential development and the applicant was willing to deny his right to develop that parcel as he believed the arena site was an important part of the OPA community. The Ridgeline project contained 52 acres with 39 lots and the 3.9 acre gift they felt was fair. If they went back in time to June 2009 with the Fieldstone project that contained 110 acres with 189 lots, way more than the 391ots, OPA had accepted the 7 acre site as part of that deal. It was not a requirement, but a commitment of their client. Additionally attorneys from both sides and supporters agreed with the language. Sometimes the legal language was confusing, and instead of bullet items, they had developed a chart which gave the specifics of the arena site donation. He presented the chart; the arena site which would be donated to anon-profit organization if Ridgeline and Rio Santiago were approved by the Orange City Council. The donation included the 3.9 acre licensed arena and the 3.7 acre agricultural area and the retail operation. If a lawsuit, initiative or referendum was filed against the project, the developer could provide all of it or subdivide the property and donate the 3.9 acre licensed arena. Lastly, if a lawsuit or referendum would be successful against the project there would be no donation required and the arena, that was zoned for residential, would move forward. Mr. Ryan stated the last big issue that was heard was could they stop the process and conduct more OPA meetings. He presented a chart that illustrated the community surveys, neighborhood workshops and meetings that they had conducted over the last 2 years. They had also spent a great deal of time with the OPA Board and their various committees. They listened and made many changes. The current plan had a 65% drop in traffic than what had existed. Anew recreational facility, 1 mile of perimeter trails, an internal trail system, environmental enhancements, 34 of the 39 lots contained equestrian stables, and they paid attention to the architectural styles, fencing and all of those details. It was important to note, in addition in 2008, as a result of a letter from the City Attorney, the OPA Board was removed from the administrative review process. They remained in touch and attempted to maintain a cordial relationship, but the action of some of the OPA Board members, through the community action group, were not about compromise and not about win win and he believed they were about attempting to stop the project. He shared a quote from the City Attorney's letter: "It would be impossible to meet the basic standards of impartiality and the OPA Board would not act in its capacity". As much as those folks had come before the Planning Commission, the City Attorney had indicated that they would not be part of the formal process. There was an incident that occurred on October 14, 2008 he had just met with the OPA Real Estate Board and had been chastised for not speaking with them more, etc., and late that evening he was presented with a plan that the OPA Board had prepared. The very next day there was an ad that was purchased that stated the OPA Board, developer and City had worked on the plan. The developer had never seen the proposal until the previous evening. It was part of the story, and the reason the City Attorney came to the conclusion in processing the plan. Over the last two Planning Commission Meeting June 7, 2010 Page 9 of 35 years there had been OPA hit pieces against his client, against Ridgeline supporters and he felt it was not reflective of getting together or appropriate. There was an instance after the letter from the City Attorney had been sent, an editorial appeared that had no mention about that letter, but continuing to attack the project. Most recently what he found very disappointing was the Facebook page that attacked the project and depicted his client as Hitler and Osama Bin Laden and it was not appropriate. He believed they needed to stick to the facts and he felt the quote from the 2008 City Attorney's letter was right on; the letter read: "Ultimately the City's decision would be based on the merits of the project and that would be the focus of everyone going forward". Mr. Ryan stated there had been a lot of discussion that attacked the developer, as if his client was some mysterious operator from Texas. The developer lived next to the project, he knew and loved Orange, his children attended school in Orange, he attended a local place of worship and sung in the choir and he believed the City had a very unique opportunity to do something good for the community that strengthened the equestrian lifestyle. They proposed 1 acre lots that were allowed by the General Plan and had been endorsed and supported for many years. The developer had the support of the City's EIIZ, the DRC, the Parks and Recreation Commission, Staff had recommended approval and they trusted that the Planning Commission would come to the same conclusion. Chair Whitaker stated prior to opening up the discussion for questions by the Commissioners he wanted to confirm that Commissioner Cunningham had reviewed the minutes and the video tape from the previous meeting? Commissioner Cunningham stated he had. Chair Whitaker stated he would allow all the Commissioners a turn to ask questions, going back and forth to allow everyone to speak. Commissioner Steiner stated his question concerned the Development Agreement. The language in the agreement referred repeatedly to a 7.6 acre parcel donation. He asked if Mr. Ryan agreed that the inclusion of language referencing a 7.6 acre parcel donation in the Development Agreement would be misleading as it implied that the donation would in fact take place. Mr. Ryan stated his associates worked very hard to insure the chart provided had been accurately reflected in the Development Agreement. If the Planning Commission wanted the language further clarified they would do that. At some point in time the City Attorney had asked them to stop, the intent was there and it was their commitment. If further clarification was needed, they would provide that. Commissioner Steiner stated provided the clarification would come in the form of further emphasis that it was utterly contingent. Mr. Ryan stated it was contingent on approvals. Their common sense was that if the project was not approved, why would they give up residential land. Planning Commission Meeting June 7, 2010 Page 10 of 35 Commissioner Steiner stated the limitation referred to more than just the approvals. Mr. Ryan stated the 3.9 acres went with Ridgeline, no matter what. The 3.9 acres would be donated as it was a commitment of the project. Commissioner Steiner stated it was not accurate to state that all they would be asking for was that the donation would only occur if the project would move forward. The donation of the second parcel only would take place if the project moved forward. The language in the Development Agreement indicated a lawsuit being filed. Mr. Ryan stated if a lawsuit, initiative or referendum was filed, then there was an option and they could donate the 7.6 acres or subdivide it and the 3.9 acres would be donated. The bifurcation would be due to costs involved. Commissioner Steiner stated he understood, but it was not accurate to state the 7.6 acres would be donated unless the project was not approved. What it actually stated was that the whole of the 7.6 acres would only be donated if no lawsuit was filed, even if Ridgeline prevailed in the lawsuit. Mr. Ryan stated that was correct. Commissioner Steiner stated he wanted to ensure he was clear on the information. There was a reference in the Development Agreement, specifically section 3.4.1, to the repeated description of the donation. Donation might imply something that was not contingent, a donation might be described as something that occurred irrespectively of the occurrence or non-occurrence of a subsequent event, but the use of the term consideration he found interesting. Consideration generally was a word of some significance in legal interpretation; it referred to the additional consideration of an offer to donate the site to a non-profit organization and there was a statement that the consideration was contingent on the Ridgeline and Rio Santiago projects being approved by the City. Therefore, one of the important elements was that a 7.6 acre parcel was included in the Development Agreement, and he had reviewed other Development Agreements and those had no association or link with another development project. The 7.6 acre donation would occur only if another project, a project that they had not heard about yet, was also approved. Mr. Ryan stated he felt that it went under the no good deed goes unpunished category. They also had many people ask what if nothing else was approved. Commissioner Steiner stated it would have seemed less duplicitous if it had not referred to the "I gotcha" provision. Mr. Ryan stated they had others ask what if the other project was not approved, and through much discussion he believed that if the Planning Commission had a recommendation for clarification or another direction for the language, he was open to including that, as long as the intent of the donation to the community and to have the equestrian center remain in perpetuity for future generations to remain an equestrian Planning Commission Meeting center. June 7, 2010 Page 11 of 35 Commissioner Steiner stated a cursory reading of the Development Agreement might lead the reader to think that there would be a 7.6 donation included. There was stealth language included that he felt was regrettable, to put it mildly, and it was the notion of up to 7.6 acres, of an offer to donate, and he wanted to hear from the other Commissioners, but he felt it was treading in dangerous waters. Mr. Ryan stated the 3.9 acres went with Ridgeline and the 7.6 acres would be the total for both projects; but if the other project was denied, that was the reason it was spelled out in the Development Agreement. Commissioner Steiner asked how could a community member walk away from the review of the materials with a notion 7.6 acres as the intent of the donation, when it hinged on anon-occurrence. Mr. Ryan stated it was the desire of the applicant and, again, it was not a requirement of the project. Commissioner Steiner asked what was not a requirement? Mr. Ryan stated the donation of the gift; it was not a mitigation measure or a Condition of Approval. Commissioner Steiner stated the language in the Development Agreement went beyond just simple altruism. Mr. Ryan stated it was a pretty altruistic project, it was zoned for residential, and if the City Council decided not to move forward, the area would be developed as residential and it was the altruistic nature of his client to want to donate it to the community for the equestrian community. Commissioner Steiner stated he called it altruistic, but generally the altruistic act was not crowed about, and he had some concern with that. Commissioner Imboden stated his questions were in the same area and his concerns were that the donation took place when building permits were pulled and he asked if the applicant would be willing to change the donation to occur at the time of re-zone? The reason for that was he had not understood the timing that had been set and wanted clarification. Mr. Ryan stated they had worked very hard with the coalition group before it ever evolved into a Development Agreement to ensure that it was fair. It seemed a fair thing to do; before anything was built a donation would occur. The people that they worked with in the coalition that signed the MOU, that ultimately was embraced into the Development Agreement, was intended to have fairness in the timing of their donation Planning Commission Meeting June 7, 2010 Page 12 of 35 and protected them against lawsuits, initiative and referendums. Commissioner Imboden asked, in referring to lawsuits, was he also including the City of Orange? Mr. Ryan stated yes. Commissioner Merino stated he is a simple guy, he is not an attorney, he is an architect. If he took Mr. Ryan at his word and reviewed the diagram, the first block indicated that the arena site donation would be made to anon-profit if Ridgeline and Rio Santiago were approved. He asked what if Rio Santiago, which was not before them, was not approved? Mr. Ryan stated the 3.9 acres would be donated to anon-profit prior to building permits being pulled, or all of the 7.6 acres could be donated. Commissioner Merino stated that would only happen at the time that permits would be pulled, assuming Rio Santiago was out of the picture. Mr. Ryan stated that was correct. Commissioner Merino asked if he felt that bifurcated the two projects. Mr. Ryan stated including the donation in the Development Agreement was a way to memorialize what had been communicated. Commissioner Merino stated that was not the question he asked. Commissioner Cunningham stated he had the same concerns and they had been asking him different ways. The Development Agreement, even with the flow chart, was not entirely clear. It was difficult to avoid that the two projects were linked. He could think of different ways to clean up the language to make it more clear for all concerned, whether for those opposed or in favor of the project. How the donations were made if just Ridgeline were approved could be clarified; it could be the 3.9 acres or the whole enchilada, and down the line with a different scenario and factors if Rio Santiago was approved. As it was written, even when reviewing the flow chart presented, it was difficult to avoid the impression that the two projects were linked. He was hearing from his fellow Commissioners the desire for more simplistic language in the development agreement. He heard what it was supposed to say and he had read it with what it was supposed to state, but he could understand how others could interpret it differently or be unsure of the intent. Mr. Ryan stated he had heard from 4 of the Commissioners on the issue and he wanted to re-emphasize that as part of the Commission's motion, if the Chair believed the language in the Development Agreement needed to be clearer or simpler, he would be in favor of that decision. Planning Commission Meeting June 7, 2010 Page 13 of 35 Commissioner Cunningham stated there was an issue regarding the trail fencing and as he recalled the applicant was proposing wood only and Staff was recommending chain link fencing along Handy Creek and he asked for an explanation? Mr. Ryan stated the chain link fence had existed for a long time and it was primarily to keep people from playing for free on the golf course. He believed, through their analysis, the need for a chain link fence went away as part of the development proposal. The set back from the creek and the vinyl fencing that was proposed had met the design needs of an equestrian lifestyle. In fact, there had been testimony regarding flood issues and it had been determined that it would assist in the hydrology on the site and something that was no longer needed. Commissioner Cunningham stated Staff's concern was to keep children out of the creek area of the development. Mr. Ryan stated it was their concern, however, there was no condition occurring anywhere else along Handy Creek and he referred to a diagram of the site. The split rail fencing and trail system met the needs of the site and a chain link fence in the area would be an aesthetic detriment and from a safety perspective, the design of the project was safe. Chair Whitaker stated getting back to the Development Agreement, they had heard that the agreement needed to be simplified and he agreed with that. He asked if the Development Agreement could be just with respect to the arena and the Ridgeline project. The idea behind a Development Agreement was a 15 year term on entitlements, a statutory exemption on extended entitlements. There was a quid pro quo for obtaining that. If the applicant was asking for 15 years instead of the normal one or 2 years for entitlements and the arena would be donated upon the re-zone and the applicable appeal periods, to him it would be a lot simpler. He asked why that could not be done. Mr. Ryan stated his position had been that what they had been hearing from the community was how to memorialize the other gift that was not a part of the benefits of the development and they wanted to commit to that and having both components in the document was an assurance of exactly what his client wanted to do; to donated the entire 7.6 acres. If it was taken out and only the 3.9 was left, it would not be a promise that when the item moved forward, the other piece of property that was not a requirement of the Conditions of Approval, and was not a mitigation measure, was something that the applicant wanted to do for the community and it would be something that they would be offering on just their word; to trust that when they moved forward with Rio Santiago that the other piece of property would be part of the project. It was their way of under the no good deed goes unpunished, to commit to the objective and to place it in writing. They received great support from their supporters. The Commissioners had indicated that the language was confusing and unfortunately legal language was confusing and it was to their detriment with people who attempted to use it as part of their attack of the project. It was the applicant's way of memorializing the donation. Planning Commission Meeting June 7, 2010 Page 14 of 35 Chair Whitaker stated there was a Mello Roos zone and usually in Development Agreements those were rarely approved in the City of Orange, but approved only when there were community benefits that could not be paid for. There were only 39 homes and he was having a hard time figuring out what the community benefit was for those homes, going from a 1 % tax rate to a 3+% tax rate. Mr. Ryan stated the project had not hinged on that component, it was another piece that if the resources were not available on the donation of the trails, there was a commitment to offer them to the City first, the County second and anon-profit third and if all of those had not wanted them the HOA would. The community facilities piece was not a lynch pin in the project it was included only if no one wanted to participate. There was an assurance that the project could go forward and he would leave that to the Commission's purview to determine its inclusion. Dennis O'Neil included it because it was another vehicle to ensure that the plan could be implemented over time. Chair Whitaker stated on the ride-in arena, and it was difficult to walk around the community without getting button holed on the issue, he had heard a lot of mixed and negative messages and he had heard that other similar arenas had not been used by the public; the applicant was asking for a waiver of park fees and it would at least seem to him that instead of having a fee waiver if there was a park along Handy Creek where residents could walk up or ride to it, the City would benefit. Currently $300,000 to $400,000 would not buy much park land and he wondered if the applicant had thought about placing a passive park in that area, something that could be used for the entire community not just equestrians? Mr. Ryan stated over the last five years they looked at several options such as a tennis facility, and they had spoke about a park and what they had heard from the community was to honor the OPA plan and something that would not perpetuate the equestrian lifestyle but that celebrated it; the design of the project with 34 barns that connected to the trails were part of that. The rural nature of Handy Creek was all part of that with the different tiered trails, the feeder trails and a fairly benign arena would emphasize it. If a lot was purchased in the area, residents would know that it was an equestrian area and lifestyle. They had also heard that community members had not wanted more traffic and a quiet ride-in only arena that could only be accessed through trails was their answer to that. Commissioner Merino stated that Mr. Ryan had repeatedly stated the applicant, Mr. Martin, came from a very altruistic place in the project and why would he not just donate the arena? Mr. Ryan stated Mr. Martin felt that he had given a lot already. It was a very unusual application, in any city in Orange County if a developer presented 1 acre equestrian estates they would be told to bring it on; almost every client he spoke with was attempting to build smaller more affordable projects. They had not played that game and he was not before them asking for '/z acre lots, they were being consistent with the General Plan for 1 acre lots and given some of the actions that had occurred in the last Planning Commission Meeting June 7, 2010 Page 15 of 35 two years, for Mr. Martin to just donate the arena now, with lawsuits and referendums and the things that people were telling him would occur, he would not advise him to do that. Chair Whitaker closed the Public Hearing and opened the item for any further questions or comments. They could proceed with the larger Staff issues that began on page 16 of the Staff Report. Commissioner Steiner asked Mr. Sheatz regarding issue No. 9, the Development Agreement, and he wanted to hear on the other issues that Staff had, but with respect to the concerns he had with the Development Agreement, what would be the affect of a denial, the legal or procedural denial, of a Development Agreement only? Assistant City Attorney, Gary Sheatz stated regarding that portion of the application, the applicant or developer could appeal that to the City Council. Commissioner Steiner stated would it be strategically sound to move forward just denying the Development Agreement. Denying the City the donation of the 3.9 acres as the denial of that agreement would nullify even that portion of the donation. Mr. Sheatz stated he was correct. If they would move in that direction he would want the Commission to be very clear in how the action would relate to the Development Agreement and the grounds or reasons for that denial for a basis in the record when the project moved to the City Council. If that portion would be appealed, the City Council would have information on how the Planning Commission had come to that conclusion. Commissioner Steiner stated the Commissioners could conceivably express, for the record, their concerns for the Development Agreement but also manifest an opinion that the flaws identified so seriously tainted the remainder of the issues being considered that the Commission could conceivably move forward with a denial of the project in its entirety. Mr. Sheatz stated it would be a recommendation of denial on it and the City Council would ultimately make the decision. Commissioner Steiner stated it had been referred to in the past that the Planning Commission existed to identify areas of concern and do the heavy lifting; if the Commission were to do that, and he was not certain of any decision, but the Commissioners could express that the flaw was in the Development Agreement and a position could be articulated that would develop the notion that the flaws; 7 acres verse 3, altruistic or strategic, or whether a lawsuit was filed, who would prevail and he was a little nervous in coaxing concessions out of the applicant after five years of development. He asked if there was a due process concern with the Commissioners suggesting that if the applicant took the language of lawsuits being filed out of the language, would it be o.k. and he asked if they should avoid that. Planning Commission Meeting June 7, 2010 Page 16 of 35 Mr. Sheatz stated he would not recommend making changes for the dais, he suggested that they identify their concerns and to send it back to have the language re-worked to allow the City Council to identify that and if the City Council accepted those recommendations, they could ask Staff to go back and work through those concerns and what those concerns were. Commissioner Steiner asked if he meant to send it up. Mr. Sheatz stated it would be sent up anyway. Commissioner Merino stated what they were doing on the proposal was developing recommendations to the City Council and they were not making a final determination. If the Commission recommended that the Development Agreement be re-worked completely, to be sent back, that was not necessarily meaning that the entire project would be sent back. It would mean that the City Council would have Staff working on it before it was presented before them. Mr. Sheatz stated that could be the recommendation to City Council and it would not occur prior to moving to the City Council. It would be their recommendation to the City Council that the Commission found that the component or entitlement needed to be re- worked and those areas of concern would be identified. Commissioner Cunningham stated he wanted to get Staff's feedback on some of the issues that were raised by the public. On the loss of recreational open space, what was the legal responsibility? Mr. Ortlieb stated the applicant's obligation was through the Quimby Act requirement and that was the .37 acres under the City's ordinance. Because it was a private facility, it was not a public park; there was not a mitigation requirement for a public facility. The only obligation would be for the housing that was being provided and to offset the park needs. Commissioner Cunningham stated the City Council's 1989 General Plan Action superceded the 1973 Council's action; designating the site as open space and low density residential and he asked what Staff's response would be? Mr. Ortlieb stated Staff's opinion was that it was the original action and the project remained under that 1973 action under the OPA plan. Commissioner Cunningham stated in regards to the park credit, if the applicant had a park or tot lot instead of the ride-in arena, would they get 100% park credit? Mr. Ortlieb stated he would need to refer back to the municipal code and he believed the manner in which it was structured that the code limited a credit of up to 1/3ra of the park land that could be used for the credit and the developer would need to pay for the remaining portion. Planning Commission Meeting June 7, 2010 Page 17 of 35 Commissioner Cunningham asked what would the developer need to do to obtain 100% credit? Assistant Community Development Director, Ed Knight stated to get the 100% credit public facilities would need to be included, public park land facilities that were consistent with standards in the Community Services Department and open to the public. There was a provision in Chapter 16 of the code for subdivisions with private facilities. It was up to 1/3rd and the facilities could be a tot lot; if it was a private facility not open to the public at large, they would receive 1/4th credit of the fees because it was a private facility. The applicant would still need to pay the fees; the only way to get 100% would be if they put in a public park as detailed in the subdivision code. Commissioner Cunningham stated as part of the approval that the HOA keep all the trails open in perpetuity and was there a precedent of other trails and HOAs? Mr. Ortlieb stated it would not need to be a trail but could be a different amenity that would be offered to the public and subsequently taken away. He was aware of a project that had a trail component and the HOA subsequently blocked off public access to the trails. Along those lines Staff was reviewing the trail system and conditioning them to request that they be public trails. Commissioner Cunningham asked if that was an unusual condition. Mr. Ortlieb stated the project was not a typical project for the City and the conditions fit the project and he could not personally point to a precedent. Chair Whitaker stated when a zone change was sought it was a discretion item for the Planning Commission and in the past when zoning was changed, in such places as the gravel pit or Serrano Heights, with extended entitlement in those discretionary measures, what types of mitigation was done in excess of the Quimby rule. Mr. Ortlieb stated he was not certain and had not been involved in those projects. Chair Whitaker stated he had noticed the applicant's representative had gotten up to speak in response to one of their questions; however, he had closed the public hearing and he asked Mr. Sheatz what was the appropriate thing to do? Mr. Sheatz stated, with the indulgence of the other Commissioners, they could hear his comments and he understood that based on the reaction, he felt the comment would come from the characterization of the facilities that were being offered up or being asked to have been considered and those were the park facility and a comment about the facilities not being open to the public. The facilities would be open to the public. They could gain clarification from Marie Knight, Community Services Director. Ms. Knight stated the facilities being proposed were not private facilities, the ride-in arena would be open to the public. In reviewing the dedication of the amenities and the Planning Commission Meeting June 7, 2010 Page 18 of 35 question was raised as to why park credit would not be given, they looked at those amenities as being very specific to an equestrian community and the success of that community was in having trails and amenities to support an equestrian community. When they looked at offering a credit for park fees, they looked at the impact on park systems with the residents coming in and the question was asked what would the project need to include? They looked at things that were considered neighborhood parks, such as tot lots. The arena was described in the EIR as limited benches, there would not be restrooms and it was not something that would be considered a destination park for the community members and the proposed project had not included lush green areas or recreational facilities and the residents would seek those types of uses in other City parks. They took the in lieu fees to offset the burden on the rest of the park system due to the additional residents. There was a comment made earlier that $300,000 would not buy a lot of park land and it would not be utilized for that, it would be used to upgrade existing parks. The ride-in arena was a facility that was open to the public. Commissioner Steiner stated it appeared the applicant still had a desire to speak and he understood the reaction. He asked if the applicant was denied an opportunity to respond to a point made would that affect a due process reversal issue, if and when the item were to find itself in a courtroom. Mr. Sheatz stated no, it would not. The applicant had a chance during his rebuttal time and the issue regarding re-opening the Public Hearing would be at the Commission's discretion. Commissioner Merino stated he would have a basic issue with the fairness of that because at the last meeting it was something that he felt they could have provided to community members and that was not done and he felt it would be inappropriate to allow the applicant another bite of the apple as he had already had his rebuttal period. Commissioner Cunningham asked if they had a question for the applicant would they also need to re-open the Public Hearing. Chair Whitaker stated yes. Commissioner Merino stated if the applicant and Staff wanted to go off to the side and have a discussion and come up with further information that Staff could present that might be another way to handle it. Chair Whitaker brought the item back to the Commission for discussion; he wanted input on the issues that were brought forward so the record was clear on their opinion. Commissioner Steiner stated his issue was the Development Agreement. He had an issue with the facility issue that was raised and it was stated that it was not a lynch pin and if it was not a lynch pin why had it been included. The problem he saw was that first of all the Planning Commission's role was to identify concerns, problems and issues they might have with a project. They had listened to all the Public Comment and he appreciated Planning Commission Meeting June 7, 2010 Page 19 of 35 their input and it mattered and assisted them in their decision making. Having 3 meetings to consider the project was good to assist in digesting all the information. First, when he stated good it may only appear that way to some of them, and he felt it was a good project on balance. He appreciated the sensitivity expressed with the loss of open space, he agreed, but also he appreciated the comments that the proposed use was consistent with the General Plan and that was their role. City Council was paid the big bucks to come up with policy decisions, but from a Land Use decision, he felt the proposed project was consistent with the General Plan and the project was well designed and they were never going to be able to have everyone on the same page on a project such as Ridgeline. By and large he thought if the project were to go forward, it would be acceptable to him. Now the bad, or depending on who was listening, the good. The Development Agreement was too significant a problem for him to parse the issue out and to state yes to some and no to the others. He made the comments and observations in light that the project was good, but the concerns he had with the Development Agreement were too significant to allow the project to move forward in its current form. There was an undeniable coalescence between the proposed project and one they had no knowledge of. The Development Agreement was being hoisted upon them as an altruistic act, but it was a lot more than altruistic. It was tactically wise to engage in a Development Agreement and it was to the developers benefit to have the agreement. He would not want to put the applicant's representative in front of a firing squad and ask him what he was willing to give up; to ask him to give up something in order for the project to move forward was a bad idea. He would be shocked to see the project go up in flames over a 3 '/2 acre parcel and he felt that was the job of the City's elected representatives, which they were not, the Planning Commissioners were appointed. They were appointed by the City Council to review and make recommendations on planning and land use concerns. He had a concern regarding the Development Agreement that he could not overcome through the parsing out of the various agenda items; and to do so would be unwise. He had not wanted to leave the City in a situation where the Development Agreement was denied and approve a project and the City would be left with nothing. It was enough of a concern that he had not wanted to move forward with the proposal in pieces. He wanted to emphasize his support for private property rights and he knew the issue was not over this evening. He was supportive of the project and he believed it was well designed and would fit in nicely with the area, but to the extent that it was linked to an unknown development caused in some concerns. The project might not be dramatically linked or clearly linked; but to approve a Development Agreement as the one that had been brought before the Planning Commission would be dreadful precedent. A Development Agreement should provide for clear things, not what if's, not on a theorem. Commissioner Imboden stated he appreciated the comments made by Commissioner Steiner and he was 100% in agreement with where he was. He would not have a lot of comments about the project itself, the project was quite good. They would lose the golf course but that was not what was in front of them to make a determination. He had reviewed the proposal for quite some time now and to review it from many different Planning Commission Meeting June 7, 2010 Page 20 of 35 perspectives, it was the donation component of the Development Agreement that he could not be 100% comfortable with; he could not gain 100% clarity through the wording and the potential scenarios that laid before them. The potential of could happen, the may nots and there were too many contingencies to allow him to become comfortable with it. He had brought up the question of lawsuits and the City of Orange; his concern was that they were all stakeholders in the proposed project as they were residents of Orange; they would be making a decision on all of their behalf. To enter into agreements that he was not comfortable with, and it was not just one person, was a decision he would be making for the entire City of Orange. His hang up was with the Development Agreement. The other aspects of the project pleased him and it was a project a person would expect in OPA on that property. Commissioner Merino stated he had been wrestling with the proposal since he had received the initial preliminary EIR and he had written down some of his concerns. Both the community and the applicant had legitimate claims and positions, some were valid and some not valid. The valid side; the property owner had the unalienable right to provide an application to the City and develop his property as he saw fit, and to pursue the greatest profit in doing so. He had not felt that anyone in the community could argue that fact. The community had the legitimate right to demand that its environment was of the highest standards and its Government provided for the common good; including the development of amenities that supported the highest quality of life. Not so valid and reasonable was that the property owner had the duty and obligation to understand the responsibilities that came with a piece of property in a community and should never assume that it would be for his or her benefit only. The applicant knowingly purchased a piece of property with an ambiguous Land Use designation in an activist community. The community had the duty to ensure that its privately held resources, the golf course, such as open space were cared for and not to look at Government to remediate its failure to do so by the imposition of unreasonable standards. For example, the loss of the existing open space would not have been an issue had the community successfully supported its own resource and should not now look to the taxpayers to recreate it. With the aforementioned being stated, however, it was the role of the Planning Commission to make the best recommendation to the City Council that would serve the community's needs while accommodating the rights of the applicant. Commissioner Merino stated he would take each item and begin with the zone change. On the General Plan Zone Change and the OPA Specific Plan that was reviewed in 1973, but with modifications that were never fully vetted through, the appropriate process that would have aligned them with the General Plan and the City Council Resolution 39-15, thereby creating the ambiguity that they had. The City Attorney provided the Commission with a memo addressing that fact. There was considerable doubt in his mind that whether the community fully understood the significance of what it considered a specific plan was not the case at all. Whether it occurred due to a lack of follow through or other error, it was the case today and in his mind left the Planning Commission with only one legitimate option and that was to fall back to the City's General Plan designation in conjunction with the Council's resolution 39-15 of other open space and low density 1 acre. That designation as validated by actions of prior City Planning Commission Meeting June 7, 2010 Page 21 of 35 Councils, Planning Commissions and OPA itself would allow for an overlay type designation that would allow for both residential and open space. He saw no point in removing either designation and, in fact, there was no reason to change the initial intent and to cause no harm and allow both to coexist. His point was that there could be overlays and if the developer chose to sell back to the community, the community could purchase the property and do what they wanted with it, he would move that the Staffls proposal to the City Council with the proviso that the property retain both the single family residential R1-40 as well as an open space RO overlay be adopted and recommended to the City Council. Commissioner Merino stated as for the Major Site Plan he agreed with his fellow Commissioners and took no exception and that was fine and he would move that they move approval of that component as recommended by Staff. The DRC application, he took no exception and felt the project was designed very well, however, he would make it clear that any recommendation made by the Planning Commission would be only pertinent for the application proposed currently before them and that any change in ownership that would change the development in that regard shall be expected to be resubmitted to the City for another review. If the developer flipped the project, and changes to the design of the project where made, the project would return to the Planning Commission and City Council. Commissioner Merino stated as far as the Development Agreement, he had queried Staff as to the source of the agreement and was told that the applicant had proposed the agreement as part of his application through the entitlement process. The City had not driven the terms of the agreement; it was also the applicant within his rights who chose to bifurcate the two projects, one that was before them and a future project, Sully Miller, which was not before them. With that perspective and as they were being asked to approve only the Ridgeline project, he felt that the Development Agreement should not link the two independent projects together. Either the projects were bifurcated or they were not. Furthermore the terms and entitlements cited in the agreement appeared to allow the applicant to have his own conditional approval and that certain terms of the agreement on a quid pro quo basis and he felt it was not appropriate or even legal for a Government advisory body to recommend an approval on an agreement that placed conditions upon itself or other parties. There would be consequences if a party would bring legal action upon another; he had not believed it was appropriate to validate a Development Agreement that was contingent on someone else's action. Both the applicant and community should expect that any conditions necessitated by the project itself would be for the benefit of the taxpayer at large, and he felt the agreement was not based on Staff input. Unless Staff provided other reasons why the Development Agreement was necessary for the approval of the proposal, he would tentatively move that they recommend to the City Council that the Development Agreement be removed from the proposal and that the applicant be encouraged to pursue it outside of the Governmental process. Finally the Tentative Tract Map, he took no exception on that and would move forward on it. Planning Commission Meeting June 7, 2010 Page 22 of 35 Commissioner Cunningham stated he wanted to thank his fellow Commissioners for graciously continuing the item to accommodate his absence. He had heard a great deal of testimony and there was a great deal of emotion and history linked to the property in question. He understood the feelings as he grew up in OPA. He had lived there for most of his life; he spent a lot of time riding his bike to Ridgeline with his brothers, he took tennis lessons there and his children learned to swim there, his brother worked there and his dad golfed at the site and he had a lot of connections to the site. At the end of the day, they were present to consider what the applicant wanted to do with the property and not to consider memories. He had no issues with the project itself and it would perfectly fit in with the nature of the community and based on the 1973 action, one acre developments were what was preferred for OPA and that was what the applicant had brought forward. He had not seen anything wrong with it. He understood the concerns with the Development Agreement and he had not fully shared them and the wording was inartful or at least not easy to understand which was the case many times with legal documents. For non-lawyers, they were not easily understood and that was why there were lawyers to be hired to interpret such documents; and the majority of the lawyers present had come to the conclusion that the agreement had, in fact, conveyed the arena in the manner outlined in the flow chart. He understood that Rio was mentioned and there was the impression of linkage, and after a great deal of thought at the end of the day, the 3.9 acres of the arena would go to the community with the Ridgeline approval and that would stand, unless the project was overturned. There could be more and he had not agreed that it was a purely altruistic move, but altruism had not necessarily had to be divorced from strategic thinking or acting in ones self interest. He had not had the same qualm about moving forward with the project and the Development Agreement and he was being prepared to move forward with both. Chair Whitaker stated he agreed with the comments of his fellow Commissioners. He wanted to outline his position and he was not certain they could come to a consensus or not. He believed that the City Council and Planning Commission resolutions of 1973 were the effective legislative law that was in place and there was a General Plan that designated the site as recreational open space or low density 1 acre residential and the project was consistent with the General Plan. On zoning, currently the zoning had been changed in 1985 from residential to open space, and they had an applicant that was wanting to change the designation back to residential which was consistent with the General Plan, but once again the zoning changes were discretionary items. The Planning Commission had the discretion, at their level, to approve or not approve a zone change. He was comfortable with the zone change based on certain mitigation measures and to him the mitigation measures were the trails, the ride-in arena or potential park along Handy Creek and in exchange for 15 years on the entitlements, he felt there was a quid pro quo of the arena, not of the 7 acres but of the 3.9 acres. He would be comfortable to move forward with the proposed project if the City Staff would be instructed to undertake a different Development Agreement that was only with respect to Ridgeline and had not included the Community Facilities District, and upon all of the appeal and initiative periods passing that the arena land would be donated and there was no dealing with the other property, Rio Santiago or any of that. It would be Planning Commission Meeting June 7, 2010 Page 23 of 35 a Development Agreement that would provide the developer 15 years for their entitlements in exchange for the provision to the community the arena. That would be mitigation for the zone change. He had not felt that the argument for an acre to acre swap was valid, he felt that would be a taking, but there needed to be some mitigation for allowing the 15 years and for having a recreational opportunity not be there. He was perfectly fine moving forward if it was specific that the arena came with the project, when the project was approved and that was how he felt. A lot of Commissioner Merino's motions he felt very comfortable with. He also felt that Staff could be directed to re-draft the Development Agreement and he also understood the other Commissioner's position in that they could not move forward with the current Development Agreement. Commissioner Steiner stated Chair Whitaker's tentative motion with regard to the Development Agreement was that Staff return and redraft it; and with respect to the donation he asked for clarification on his recommendation? Chair Whitaker stated it would be the 3.9 acre arena being donated after passage of the appeal and initiative filing periods and not after building permits, it would be donated and then the zone would be put into place. Commissioner Steiner stated he felt that the Development Agreement would have been better if it had not screwed around with a reference to a project that was not before them and had started the ball rolling that there was some grand conspiracy at work. He understood why the community thought that. It was just bad public policy. If a motion included language that provided for the redrafting of the Development Agreement to eliminate all references to a prof ect that was not before them, he felt it was in the purview of the City Council to determine whether or not the change would be within the best policy and procedure. Commissioner Imboden stated that to go any further would be getting into policy and he would prefer not to take part in and agreed with Commissioner Steiner. Commissioner Steiner stated he thought Chair Whitaker was onto something and that was the one bone of contention for some of them was that somehow Ridgeline was linked to another piece of property that would most likely be controversial and he thought that people had identified that as being unfair. If Chair Whitaker's proposal would be that the Development Agreement be redrafted to remove any such reference to that and it could move forward in light of the redrafting in whatever form it would take, the City Council could make the determination if it was appropriate. Chair Whitaker stated the recommendation to City Council would be for a redraft. Commissioner Merino stated there were two issues; in terms of the Development Agreement to get into the specifics of what was or was not acceptable was beyond the purview of the Planning Commission and there were issues that had to be dealt with, with the applicant and there were issues to be dealt with on a policy level and they agreed that they would not want to get involved in policy issues. He would not want to give a signal Planning Commission Meeting June 7, 2010 Page 24 of 35 to anyone that he knew what the right answer for the Development Agreement was. He knew that it had not worked for him and would not work for the community and therefore the Development Agreement needed to go back. In terms of the Land Use designation, he wanted to be clear and he understood that the Chair had not agreed with allowing an overlay of open space for the site. Chair Whitaker stated that was more of a policy issue and the applicant was requesting a zone change and currently the zoning was open space and he thought overlays were fine and overlays had been done with the General Plan Update. The applicant was asking for a zone change and the General Plan had two designations and the zone had one and the applicant was asking for a change. It was in the discretion of the Planning Commission to issue a zone change and he was comfortable with that if the Development Agreement was only for the project before them and the donation specifics were clear. Commissioner Merino stated he had not seen the connection; the reason he had brought it up was that both designations coexisted depending on what snap shot in time they were looking at, and in the interest of doing no harm, he could not see why the applicant would object to having an overlay and it could make the project more sellable and it would be a win win for the community and for the applicant and eliminate the controversy of the site. Chair Whitaker stated there were two levels, the General Plan and Zoning. The General Plan clearly allowed two designations and the zone was the zoning code that was below the General Plan and was only zoned one thing, it was only open space and the applicant was seeking to change that and his view was in support of that change if the remainder of the project was clear. Mr. Sheatz stated he urged the Commissioners to stick to the script, there was an application before them and that was what the applicant was looking for and it was his project that he had been working on for five years and it was the submittal. He was thinking how he could stair step them through to gain a recommendation that the City Council would be able to handle, as some of them felt the Development Agreement was inextricably linked to another project, which would link it back to zoning and he was attempting to find a way that they could help it along to make a recommendation that was contingent on a redraft of the Development Agreement, in order to get it sheparded up to City Council for those policy changes. Commissioner Cunningham stated he agreed that they should not move forward on one and it had not made sense to approve the proposal and not approve the mitigation of the arena. He asked if they approved everything except the Development Agreement would there be no arena donated to the community? Mr. Sheatz stated that was correct, that would be the recommendation and the Development Agreement had the offer of the arena, so they would effectively state that it was not what they would approve. Planning Commission Meeting June 7, 2010 Page 25 of 35 Commissioner Cunningham stated he had not believed that redrafting the Development Agreement would only go so far, even if they could do that the room would still be full of people wearing the same signs and had not gone to the crux of the issue that was on the mind of a lot of residents. It was a question of whether they should re-zone the site and whether there should be homes there. To wave a magic wand over the Development Agreement and solve it was ill founded and he was of the same mind of Chair Whitaker to allow City Council to make the Development Agreement cleaner in terms of communicating what they wanted it to do. At the same time he would not want to punt it up to City Council. He would not want an applicant to come to them with a proposal and to have them walk away with something completely different. Commissioner Merino stated they would not be voting on anything, they would be making a recommendation and to reach a consensus. There were specific issues brought and it had been agreed that each issue would be discussed and taken on their own merits. He would make a motion in terms of the zone change that they accept Staff's recommendation with the exception, he then asked Mr. Sheatz if the applicant was willing to remand his application and they had done that from the dais, gained an acknowledgement from the applicant, that he would not be adverse to an overlay. Would there be any reason that they could not have a zone with an overlay at that level and he asked if that would be acceptable? Mr. Sheatz stated one of the issues would be that they would need to review the EIR and he was not certain that could be done from the dais as it was something that they were also being asked to take action on. Commissioner Merino stated they had a piece of property that had both designations and he was not certain what changes would be at issue. He wanted to provide the opportunity for both the community and the applicant; it would be awin-win; if that was not available to them through zoning, that was a different story. Planning Manager, Leslie Aranda Roseberry stated they needed to keep their eye on the ball with a very specific project description that was included in the environmental report and it was something very specific that had been advertised and a specific project that people had come to speak on. Nowhere in the proposal was there any discussion on an overlay for zoning or for a General Plan designation. During the conversation, it appeared that the two were getting muddled together, between the General Plan Amendment and the Zone Change. They were two very distinct things and the project that was before them and what had been analyzed. They had dealt with overlays during the General Plan Update, but the proposed project was different, it was project specific and had very specific requested designations. Commissioner Merino stated in Ms. Aranda Roseberry's personal memo dated June 4, 2010 it was noted that there were 4 different Land Use designations for the property, one of them being open space and low density. He asked why it would be inappropriate to allow that Land Use designation to continue? Planning Commission Meeting June 7, 2010 Page 26 of 35 Ms. Aranda Roseberry stated there were not 4 designations for the site, but rather 4 different sources that they used to determine the actual designation for the site. They used the OPA plan which had a different designation and the only designation that held water was the 1973 determination, open space and low density residential. Commissioner Merino stated yes it was resolution 39-15, and he asked why would they not validate an earlier City Council's decision to keep the other open space and low density designation? Ms. Aranda Roseberry stated regardless of what determination came forward in a General Plan Amendment for the property, they would update all the applicable maps as it had not been done nearly 30 years ago, but it was not what was before them. Commissioner Merino stated again the question he had, was there any reason why the Planning Commission could not make a recommendation to the City Council to change the Land Use designation, with no objection from the applicant, to open space low density? Ms. Aranda Roseberry stated that was not what was before them. Commissioner Merino stated if the applicant agreed it would be o.k. Mr. Sheatz stated he would have an issue with that as they had not analyzed that in the environmental document. Commissioner Merino stated the environmental document dealt with an existing piece of property that carried both the designations based on resolution 39-15. Mr. Sheatz stated the project in front of them was the project that had been analyzed in the environmental and if they switched it up, they ran a risk. The overlay had not been analyzed. Commissioner Merino asked what the risk was. Assistant Community Development Director, Ed Knight stated in 1973 an action was taken and there was a designation under the OPA plan which was not reflected in their copies, but it existed. The fact was that it was open space and 1 acre lots. Just because it had not been changed on the maps had not meant it had not existed. There was to be a follow up action where Staff was to bring about certain changes to implement that into the General Plan that never occurred. What Commissioner Merino was stating was let us fix it 37 years later with an overlay Land Use designation of recreational space and one acre lots.. It had not been done years ago, it was not advertised for the current Public Hearing and it would require Staff to complete the work that had not been completed 37 years ago and that was what Ms. Aranda Roseberry and Mr. Sheatz were conveying. They would need to put the brakes on things, re-work the environmental documents, re- advertise the hearing and bring it back in order to do that under the General Plan, less so Planning Commission Meeting June 7, 2010 Page 27 of 35 now, but there were overlays. It would not be impossible to do that, to have recreational and one acre, it was just not a part of the project before them and something that had not been done 37 years ago. In order to follow through that thread, it would require going through the process. Chair Whitaker stated Commissioner Merino had made a motion and he asked if there was a second to his motion. There was none. Chair Whitaker stated he had a question for Staff in reference to the General Plan Amendment being sought as part of the application. In Issue No. 1, the General Plan Amendment, was the request to go to low density or was it to include for map updates only to correspond to the 1973 action? Mr. Ortlieb stated the General Plan Amendment requested by the applicant was to change the site to become single family residential one acre minimum, to have the General Plan be only one designation. (Italic text is verbatim) Chair Whitaker stated he was prepared to make a motion and everyone could hear him all the way through and then they could pick him apart after that. It would be a resolution Planning Commission recommending to the City Council certified the adequacy of the final Environmental Impact Report 1788-07, adopt the finding of fact, adopt a statement of overriding considerations and deny the General Plan Amendment 2007-001 because the General Plan already has both designations in it. Zone change, approve zone change 1243-07, Tentative Tract Map 0019-07, Design Review Committee No. 4207-7, Major Site Plan 04, 0496-07 to allow for the construction of 39 residential units on minimum 1 acre lots public ride-in only equestrian arena approximately 1 mile of public trails and .7 miles of internal trails located at 1051 North Meads Avenue contingent upon the redrafting of the Development Agreement No. 5600, so that the 3.9 acre ride-in arena is donated in a manner that is clear and only related to Ridgeline in the City Council's discretion. Commissioner Steiner asked if there was any of the language with respect to the timing of the donation? Chair Whitaker stated his suggested timing would be, the timing I would like, that would be in the City Council's discretion, would be upon all appellate periods and periods for filing an initiative to have passed without any of those occurring. Commissioner Cunningham asked for clarification on why he wanted to approve to deny? Chair Whitaker stated as Mr. Ortlieb had explained it, the General Plan Amendment was being sought to change the General Plan to a single designation of R1 residential and with a 15 year Development Agreement they would not know what the project would be and he felt the City Council in 1973 was wise to allow either designation. He had been getting button holed by people who wanted the whole project denied so they could have a Planning Commission Meeting June 7, 2010 Page 28 of 35 ball field. They had not known what would occur there and the City Council in 1973 made a decision and the General Plan was what it was and allowed for the zone change. Commissioner Merino stated it was highly complicated and he asked if he was recommending a denial of the Land Use change that the applicant had requested and would that not essentially deny the project, or was he stating with that denial it would fall back on the open space and one acre residential? Chair Whitaker stated the General Plan currently stood with two designations, the amendment request was to eliminate the open space designation and only have a residential designation, his recommendation to the City Council would be to leave well enough alone with respect to the General Plan. The project could be done with a zone change and leaving the General Plan as it stood, and it gave them some flexibility. They would not need to approve an amendment to the General Plan to approve the remainder of the application. Ms. Aranda Roseberry stated to further complicate the issue, the General Plan Amendment not only was for the designation change but also for some language changes and from the many memos that were put before them, the OPA plan was part of the Land Use Element in the General Plan and the applicant was requesting language changes within the OPA plan and therefore it was through a General Plan Amendment. They could review that on page 16 of the Staff Report under issue No. 1. The first one dealt with the designation called out in the OPA plan, the second would add text providing for vinyl fencing in addition to wood fencing and provide text revisions to reflect the Ridgeline Equestrian Estate dwelling unit densities in the plan, they had included charts and such that were updated. Specific to the plan itself were changes to the density tables and the vinyl fencing. Chair Whitaker stated he had no issue with those changes to the General Plan, but he had a problem with a change to one designation. Commissioner Merino stated weren't they attempting to do what he wanted but just in reverse, he believed they would be changing the application to make it palatable for the denial just as they would have done with an overlay. Chair Whitaker stated an overlay would change the zoning code. Commissioner Merino stated they were denying it and just adjusting for that denial. Commissioner Imboden stated he had not agreed. or disagreed with Commissioner Merino and he had not understood the advantage of what he was attempting to do. Commissioner Merino stated he was supportive of Chair Whitaker's recommendation if it worked. Commissioner Imboden asked if he was opposed to the motion made. Planning Commission Meeting June 7, 2010 Page 29 of 35 Commissioner Merino stated no, if they were not capable of changing things because they would be messing with the application, could they move forward with the Chair's recommendation and they were getting into some idiosyncrasies and he was in support of Chair Whitaker's recommendation. Commissioner Steiner stated both approaches would accommodate what they were attempting to recommend, it was that one approach would be less subject to challenge by virtue of it not referencing a term that should not be referenced. Commissioner Merino stated if the Staff agreed. Chair Whitaker stated he would change his motion to take out or deny one part of the General Plan Amendment and would that be acceptable, and it was something that had been publicly noticed, where as overlay zoning was not noticed and it was where his opinion was coming from. Mr. Knight stated it was not an easy answer; they were not messing with the application by a denial, to deny one aspect of it, because the project before them could be denied. They could get into issues in attempting to make changes to it. Commissioner Merino was attempting to create a different Land Use with the overlay and in some respect it was somewhat of the same thing, however, what Chair Whitaker would be doing was to recommend that one aspect of the project be denied. There was a denial of the General Plan from Staff's perspective would that create a domino effect. In other words, would the proposed zoning be inconsistent with what would be the General Plan designation that existed. In his estimation no, because the current Land Use designation was currently open space and one acre estate lots and to change it to a single designation of estate lots would be consistent with the General Plan- yes, because the General Plan permitted two different types of Land Uses, under the OPA plan. On its face, no it would not be inconsistent. Some of the things that came into play were that the Land Use was not on the General Plan table of contents but on the OPA plan and sort of got rolled into it by default and became a bit more messy. If the General Plan Amendment was denied, his estimation was that the zoning would be o.k. to go through and was consistent with the dual designation on the project. Once arriving at zoning, everything else had to be consistent with the General Plan, all else would be consistent, the tentative tract map and such would be consistent. This was his second motion: Chair Whitaker stated let me try to re phrase my motion based on the knowledge that has been imparted. Mr. Knight stated as Ms. Roseberry mentioned there are some changes to the text of the General Plan. Chair Whitaker stated I understand, I understand, ok, my revised attempt at a motion would that a we, a resolution of the Planning Commission recommending that the City Planning Commission Meeting June 7, 2010 Page 30 of 35 Council certify the adequacy of Final Environmental Impact Report 1788-07, adopt Findings of Fact, adopt Statement of Overriding Considerations and approve General Plan Amendment 2007-001, with the exception of item number one which was on page 16 which is the, making only one residential, but we would recommend that the City Council approve the other items to the General Plan Amendment, the other textural items, the vinyl fencing, the density issue, and the consistency on language, then we would approve Zone Change 1243-07, Tentative Tract Map 0019-07 also known as Tentative Tract Map 17167, Major Site Plan 0496-07, Design Review Committee 4207-07 to allow for the construction of 39 residential units on a minimum 1 acre lots and ride-in only equestrian arena approximately 1 mile of public trails, and .7 of internal trails located at 1051 N. Meads Avenue contingent upon, Development Agreement 5600 being modified so that the 3.9 acre ride-in, the 3.9 acre arena is donated as soon as all appellate periods and referendum filing periods have passed without any filing against the Ridgeline project, within the City Council's discretion on how that language should be reworded. That is my motion and maybe it dies, I don't know. Commissioner Cunningham stated I'll second it. Chair Whitaker stated it has been moved and seconded and now time for discussion. Commissioner Merino stated he was supportive of the motion with the exception of the last line and the whole issue of contingency and allowing the applicant the ability to not donate if a lawsuit would be filed, basically validating a third party's action as party to their approval. Could they just remove themselves and have it be a recommendation for a re-work of the Development Agreement. Chair Whitaker stated the intent was in making the approvals contingent upon the Development Agreement being reworded was if the applicant would not donate the land all the approvals would go away, there would be no zone change, no tract map approval, nothing. It was o.k. with him and he would not care what happened out there in the City, they would either attack it or they would not attack it, if the applicant chose to remove the donation all the approvals would go away. Commissioner Merino asked why should the tax payers be worried whether a third party exercised their freedom of speech or choice to sue another party, and why should the City be a party to that issue? Chair Whitaker stated they would not be a party to it at all, simply put the applicant was asking for approval of a project and he was stating it was fine as long as he donated, if the donation could not occur because of other things happening then the approval went away and the City would not be out any money. The approval would be contingent, period. Commissioner Merino stated he felt the language of his motion was not clear. Chair Whitaker asked if there was any further discussion. Planning Commission Meeting June 7, 2010 Page 31 of 35 Commissioner Steiner stated the distinction between the contingency proposed by the Chair and the Development Agreement that was proposed initially was stark, it was a completely different form of contingency, a contingency that was in the interest of the City vs. penalizing of the City if an unknown issue occurred. If there was to be any type of legal preceding the applicant would be left with nothing; if he chose not to donate and the modifications as described addressed his concerns. Commissioner Cunningham stated he concurred with Commissioner Steiner. Commissioner Merino stated with Commissioner Steiner's confidence and he being a judge elect that his legal acumen was sufficient for him to be confident in the action. SECOND: Commissioner Imboden AYES: Commissioners Cunningham, Merino, Imboden, Steiner and Whitaker NOES: None ABSTAIN: None ABSENT: None MOTION CARRIED Planning Commission Meeting June 7, 2010 Page 32 of 35 (4) CONDITIONAL USE PERMIT N0.2786-10 -THRILL IT ENTERTAINMENT CENTER A proposal to operate a 10,934 square foot family play center and birthday party facility with four or more amusement devices. LOCATION: 20 City Boulevard West, Suite 907A NOTE: The proposed project is categorically exempt from the provisions of the California Environmental Quality Act (CEQA) per State CEQA Guidelines Section 15301 (Class 1 -Existing Facilities) because the proposal will be housed in an existing building within an existing shopping center. RECOMMENDATION ACTION: Adopt Planning Commission Resolution No. 14-10 to allow a family play center and birthday party facility with ten amusement devices. Associate Planner, Robert Garcia presented a project overview consistent with the Staff Report. Chair Whitaker opened the hearing for any questions to Staff. Chair Whitaker asked, regarding Condition No. 3, which he knew was placed in the Conditions due to the arcade standards, which stated that the CUP shall be limited to the hours of operation of 7:00 a.m. to 12:00 a.m. and 7:00 a.m. to 1:00 a.m., and considering the location at The Block, his concern was, had Mr. Garcia spoken with the applicant about those hours and would the Police Department want more restrictive hours? He felt that the standard Condition was placed in the Staff Report and if the proposal was for a family fun center he had a hard time justifying the hours of operation to 1:00 a.m. Mr. Garcia stated the hours of operation proposed were Monday through Thursday 10:00 a.m. to 6:00 p.m. and Friday through Sunday 10:00 a.m. to 8:00 p.m. The hours would be more restrictive than the standard Conditions. Chair Whitaker asked Assistant City Attorney, Gary Sheatz if it would be acceptable to place the applicant's hours of operation into Condition No. 13, instead of what currently existed? Mr. Sheatz stated yes, they could do that. Chair Whitaker invited the applicant to address the Commission. Eric Barnes, address on file, stated the proposal was for a children's entertainment center and it was all described quite well by Mr. Garcia. He wanted to address the hours and Planning Commission Meeting June 7, 2010 Page 33 of 35 the Chair was absolutely correct in the 1:00 a.m. time. His customers were under 7th grade age and should be sleeping by 8:00 p.m. He was currently in negotiations on the lease with The Block and there was a concern regarding the hours. The Block wanted him to stay open to 9:00 on weekdays and 11:00 on weekends. He was currently negotiating his hours. If they made him remain open until 11:00 p.m., he was not certain what he would do as it would not be cost effective for him to run his business with those hours. The proposal was for a children's play area based on physical activities, trying to keep kids active. There would be large climbing structures, indoor rock climbing, and a high ropes course. Chair Whitaker stated there appeared to be 10 arcade games. Mr. Barnes stated it would be up to 10 games and those would be typically physical games, such as a jump roping game. Chair Whitaker asked if there were any questions for the applicant. Commission Merino stated if he was understanding the applicant's concern, if the City conditioned the hours of operation that were of the most use to the applicant, would that enhance the applicant's ability to have discussions with the landlord? Mr. Barnes stated that question would be better directed at his Real Estate representative as the hours had been previously agreed upon. The problem was that the person who had agreed to those hours had moved onto a different job and now he was going back. If he was open past 8:00 p.m. on a weekday, he would not know who his customers would be. His business was not an attraction for teenagers. Chair Whitaker stated that was his concern there would be roving bands of teenagers in the facility to play arcade games at 11:00 p.m. Mr. Barnes stated at his facility there was a security area, parents wear wrist bands with their children and unaccompanied children were not allowed. A 14 year old might enter the facility; however, they would need to be brought in with a parent. The proposed facility would be a giant Chuck E. Cheese without food. Chair Whitaker brought the item back to the Commission for further discussion or a motion. Commissioner Merino stated he was ready to make a motion with the modifications, as stated and they could amend the hours of operation to assist the applicant and he would be supportive of that. Commissioner Merino made a motion to adopt Resolution No. 14- 10, approving CUP No. 2786-10-Thrill It Entertainment Center, subject to the conditions contained in the Staff Report. Chair Whitaker stated the motion would be to approve CUP No. 2786-10, Thrill It Family Entertainment Center, subject to the conditions contained in the Staff Report and Planning Commission Meeting June 7, 2010 Page 34 of 35 with a modification to Condition No. 13, for hours 10:00 a.m. to 6:00 p.m. Monday through Thursday, and on Friday through Sunday unti18:00 p.m. Commissioner Steiner stated he was in agreement with everyone; he had not wanted to see the City condition the hours of operation to 8:00 p.m. and for the property management to want different hours to remain open until 11:00 p.m. He would not want the applicant to find himself in a difficult position returning to the Planning Commission. He suggested including a provision that a renegotiating of hours would be permitted in the event it became an issue. Chair Whitaker asked if that could be done. Assistant City Attorney, Gary Sheatz stated the applicant would be able to return if he required an adjustment in the hours. Commissioner Steiner asked if there would be any fees associated with that. Assistant Community Development Director, Ed Knight stated there were fees, however, he felt what Commissioner Steiner was suggesting was that the hours could be modified administratively. Instead of having the applicant return to the Planning Commission, the motion could include that any minor changes in hours of operation could be completed through the Community Development Department. Commissioner Merino stated there had to be a limit in hours to address the concerns of Chair Whitaker. Chair Whitaker stated his concern had been with the standard Conditions of midnight and 1:00 a.m., he felt the applicant would not be asking for those hours. Commissioner Steiner stated he would want to include language that would avoid the applicant getting the shaft if the landlord rejected the City's approved hours of operations. He felt the inclusion of language would accommodate that concern. Chair Whitaker asked Commission Merino if he would be comfortable including the additional language into his motion. Commissioner Merino stated yes. SECOND: Commissioner Steiner AYES: Commissioners Cunningham, Imboden, Merino, Steiner and Whitaker NOES: None ABSTAIN: None ABSENT: None RECUSED: None MOTION CARRIED Planning Commission Meeting June 7, 2010 Page 35 of 35 Chair Whitaker stated prior to the meeting's adjournment that he wanted to thank everyone for their public participation, it was democracy in action and the Council Members were watching the hearing. He wanted to acknowledge one of his colleagues Mr. Scott Steiner. He had tendered his resignation effective on Wednesday, assuming that he is elected a judge on Tuesday. He wanted to congratulate and thank him for being a great Chairman to the Commission, a good friend and a very professional colleague and he wanted to give him a public congratulations. There was applause from the audience. Commissioner Steiner stated he had not resigned with the hope that he would win, but happily he had no opponent, and he highly recommended running without an opponent. He stated it had been a privilege to serve the City and to serve with his fellow Commissioners and he thanked them all. (5) ADJOURNMENT: Adjourn to the next regular meeting scheduled for Monday, June 7, 2010. Commissioner Steiner made a motion to adjourn to the next regular scheduled Planning Commission Meeting on June 21, 2010. SECOND: Commissioner Imboden AYES: Commissioners Cunningham, Imboden, Merino, Steiner and Whitaker NOES: None ABSTAIN: None ABSENT: None MOTION CARRIED Meeting Adjourned @ 9:38 p.m.