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PC 09-09-98CITY OF CUPERTINO 10300 To~e Avenue Cupertino, CA 95014 (408) 777-3308 AMENDED MINUTES OF I'HE SPECIAL PLANNING COM3IlSSION MEETING HELD ON SEPTEMBER 9, 1998 SALUTE TO THE FLAG ROLL CALL Commissioners present: Harris, Mahoney, Stevens, Chairwoman Austin Commissioners absent: Com. Doyle Staff present: Robert Cowan, Director of Community Development; Ciddy Wordell, City Planner; Michele Bjurman, Planner II; Eileen Murray, Deputy City Attorney APPROVAL OF MINUTES: None WRITTEN COMNIUNICATIONS: Chair Austin noted communication received regarding the issue of concern for privacy; and communication regarding use of acacia trees. POSTPONEMENTS/REMOVAL FROM CALENDAR: None ORAL COMMUNICATIONS: None PUBLIC HEARING Application No.(s): Applicant: Location: 11-Z-98, 8-EA-98 Amendment to R1 Ordinance City of Cupertino Citywide Public Hearing to consider an amendment to the Single Family Residential ordinance regarding building mass, setback and height. The Planning Commission will consider an interim ordinance to address privacy issues. Staff presentation: Mr. Robert Cowan, Director of Community Development, provided an outline of the previous meeting. He reported that at the August 31 meeting, the Planning Commission discussed alternative solutions involving a fast track approach to getting started on the privacy sections; the use of trees as a solution, and the overall package orR1 amendments. The concept was to develop a fast track approach to gain some mini relief and then go back with a more comprehensive package for an Ri revision. The solution that staff focused on was one advanced by the consultant to get immediate relief, and that was the use of trees as well as the idea of using window sizes to try to regulate privacy. He said he recommended focusing on issues discussed earlier, which included various issues involving the use of trees as a privacy measure. He said the ordinance was redrafted to contain the primary points of agreement the Planning Commission had and also address issues raised by the City Attorney's Office. He reported that the City Council Planning Commission Minutes 2 September 9, 1998 agreed to focus on the privacy issue and give more time to solve the daylight plane and FAR issues. He noted that two councilmembers voiced concern about not using windows as part of the package. Ms. Michele Bjurman, Planner II, reviewed the proposed changes to the Ordinance relative to the waiver, window alignment, and exception categories. Mr. Cowan said that the drafted ordinance meets the majority of concerns expressed by the Planning Commissioners at the previous meeting and staff recommends adoption following review. Following a discussion regarding suggested wording changes, there was consensus to change the word "affected" to "adjacent". Ms. Bjurman said that "adjacent" was clearly defined in the definitions ordinance, therefore the question would be whether that definition which does state "abutting the property line", meets their intent, and if so, it is already defined in the definitions ordinance and no further action is needed. Com. Harris said that it should be indicated, so that when the present commission is not around it is understood that it includes the two next to it, one behind and one on each side of the house. She said she felt it should be written in and it should be stated which five they are. Com. Harris expressed concern regarding Exception 3, stating that it allowed anything to be built anywhere; and suggested that it be removed from the context. Ms. Bjurman explained the rationale for Exception 3, stating that she created it and it was from the RHS ordinance and has had to apply it on several occasions. She cited an example of a property owner in a residential hillside zoning district who could put their building, with a request for a grading exception, on the highest point of the lot which requires a greater amount of grading for the lower part of the lot, and the exception would be the same, but the impact is less significant to get the lower portion of the lot. She said finding No. 1 would not apply in that they still meet the spirit if the building is high on the lot or low on the lot. Ms. Eileen Murray, Deputy City Counsel, said that it would be appropriate to remove Exception 3, but Com. Harris said she did not agree; stating that she felt it was used to violate the division as opposed to enfome it. A discussion ensued regarding the species and sizes of trees for the proposed landscape mitigation. Mr. Mark Srebnik, consulting architect, reported that he had met with the landscape amhitect who had recommended additional trees and shrubs for the landscape mitigation. Appendix A was distributed which listed the recommended trees and shrubs. He noted that planting trees would not provide screening in the interim years, whereas the suggested shrubs would provide more immediate screening results. He said that a mix of trees and shrubs might be the most appropriate. Mr. Srebnik said there should be as broad a list as possible. Com. Harris said she felt more trees needed to be added to the list. In response to Com. Mahoney's question about who selected the trees, Ms. Bjurman said that the property owner can choose from a list, and if they deviate from the list, they must have an arborist's certification. Ms. Bjurman explained that the property owner building the two story addition or the two story home would be the responsible party for maintenance upkeep of the trees and shrubs used for privacy mitigation. Planning Commission Minutes 3 September 9, 1998 Ms Murray explained that the tree ordinance pertained to heritage trees and street trees; and cutting or dismembering those trees without permit was a misdemeanor, with a fine of up to $1,000 and six months imprisonment. She noted that issues to be addressed should include the fine for tree removal on one's own property, noting that $1,000 might be excessive for one's own property; and how the code enforcement would be monitored. She reported that an infraction was a minor offense and would be a $50 citation given by code enforcement. She said that the tree ordinance for private property could not be included with the street or heritage tree ordinance. She recommended that the tree ordinance be included in the present ordinance or a new one drafted. Ms. Bjurman explained that staff recommended the tree ordinance. She recalled that iX the past the city went through a series of zoning code qualifications which streamlined the ordinances and created a tree ordinance separate from the main ordinances such as single family residential; which did not deal directly with the construction of buildings. She said it was consistent with that process and is the reason staff is suggesting that any concept regarding trees, their protection and maintenance be within that separate tree ordinance. Ms. Murray said that another tree ordinance could be drafted, and she recommended that the specific penalty language be spelled out in the ordinance. Com. Stevens expressed concern about the use of the word "shall". Ms. Murray clarified that on the exceptions, if the findings are all made, you "shall" allow that exception; if it is discretionary, then you can put "may," but it would create a problem. Com. Stevens said that if their answers are agreed to, then it would be "shall." Ms. Murray pointed out that reasons could not be presented why the property owners would not be able to do what they proposed. Com. Harris said she preferred the use of the word "may." Ms. Bjurman summarized the issues for discussion: 1. Window Alignment Exception (Add distance between Windows 2. Planting Maintenance Penalty (Infraction or misdemeanor) 3. Waiver policies 4. Appendix A - Tree list 5. Exception findings 6. "shall" vs. (May) Relative to window placement, Com. Mahoney suggested a distance of 20 feet, that would apply for less than 20 feet in; maintenance penalty should be infraction; the waiver policy was appropriate. Relative to Appendix A, tree list - he said anyone could plant trees that a neighbor did not like. He said the trees would have the height advantage, but would lose the density. He questioned why oleander was not on the list. Com. Mahoney said the tree list needed to be updated. Relative to exception findings, he said they were the same ones they presently had and did not want to change them. He said he preferred to leave "shall, will, may" as is. Com. Mahoney said that if there was no waiver, he wouM not vote not vote for it. Mr. Cowan suggested adding to the tree list: "what is your expectation about the degree of privacy protection after so many years?" He said that previously, the Planning Commission said they wanted to have some tree protection, and the assumption was that these shrubs/trees planted with spacing as shown and with the initial size, in three years would provide a reasonable degree Planning Commission Minutes 4 September 9, 1998 of protection, and questioned if the criteria was still of interest. He said he was not certain the 24 inch box tree would do an adequate job. Com. Harris said that relative to window alignment exception, if they were in agreement for distance between the other commissioners, it would have to be 30 feet for her to agree. She said she felt they should not be opposite as she had that present arrangement and it was unpleasant. She said infraction for No. 2 was appropriate. Concerning the tree list, she said they had hired an architect, who went to a landscape architect and is making a proposal, which should be honored. She said that if a specific species of acacia tree is a problem, it should be removed from the tree list, as she would not want to encourage something that residents might inadverten..tly plant. Relative to the exception findings, she said that she did not like the modification language because it binds the city. She said if it goes to City Council and they want to change it to "shall," you must say that the Planning Commission has taken No. 3 out because that was the vote. She said that the Council needed to have all the facts. Referring to No. 6, the use of "shall" or "may," Com. Harris she said that she preferred "may". She said the point of an exception process is to allow a person to come to the board and say why their property couldn't fall under these rules, and by writing these very restrictive guidelines, they would nOt have that. Com. Harris complimented Ms. Bjurman on the excellent staff report and presentation. Mr. Cowan clarified that in the hillside ordinance, there is no language in the Rl~i that deals with exception, and said it does not have the word "shall". Com. Stevens said that window alignment exception at a distance would be appropriate; however he felt a window was not a privacy issue because shades or blinds could be installed. He said he was not borne in on privacy being windows sitting adjacent each other. He said the other party could correct it. He said if the alignment was there and going to he put in, he would suggest 30 feet, but he felt privacy was not really a problem. Relative to the waiver process, he said that if a group of people agreed to something, it should be considered, not required. He said the tree list was an excellent idea; and if referred to, it could be the current list with no penalty, if it happens to be the previous one. He said that exceptional findings were subjective, that there should be an exceptional finding but not necessarily the least. He said if specified as least modification, he was opposed to it. Regarding planting maintenance, he said options should be available. Com. Stevens selected the word "may" for No. 6. Chair Austin said that she did not support exception findings, No. 5. She said that the did not know why the windows had to be straight across, and she did not support that concept. Planting maintenance penalty should be infraction; yes on waiver policy; tree list appendix: yes; exceptional findings. Discussion ensued regarding the exception process wherein staff answered questions. Ms. Murray said that having to make the total five may be onerous. She said the privacy issue did not nearly compare to the hillside issues where there is a real safety issue and concerns. She said she only added No. 5 because she felt that these exceptions should address privacy; which is the main concern, and if the person is otherwise protected because they are 40 feet away or there are some trees on the property and they are not on the tree list, or some other unusual circumstances, then that is the exception. Planning Commission Minutes 5 September 9, 1998 Com. Harris commented that if"may" was left in, she was content to leave No. 3 in. Mr. Cowan said that the city attorney's office wanted the Planning Commission to concur on whether they wanted an exception to be granted by the Planning Director vs. the Planning Commission as recommended in the ordinance. Ms. Murray explained that it was an option that was not discussed but is possible that the exception process can go to the Planning Director and be appealed to the Planning Commission. It was agreed that it should remain with the Planning Director. MOTION: SECOND: ABSENT: VOTE: Com. Mahoney moved to approve the Negative Declaration on Applicati~'n No. 8-EA-98 Com. Harris Com. Doyle Passed 4-0-0 MOTION: SECOND: Com. Mahoney moved to approve Application 11-2-97 with the modifications discussed. Com. Stevens Com. Harris said that there was an exception in the ordinance which states if it not used within 2 years following the effective date, it shall become null and void. She said she felt one year is more appropriate because more people are coming before them with an exception now. She said she felt two years is a long time and a lot of things change in the neighborhood with adjacent properties, the whole tenor of the neighborhood could change in two years. Com. Stevens said if there is no action, then it becomes null and void; if there is any kind of action, even minute things such as asking for an extension, that is sufficient. He said he felt they must start their construction within one year, and possibly have a one year extension available. There was consensus for one year with a possible one year extension. ABSENT: Com. Doyle VOTE: Passed 4-0-0 MOTION: SECOND: ABSENT: VOTE: Com. Mahoney moved to initiate an amendment to the accessory structure ordinance to add privacy protection measures. Com. Stevens Com. Doyle Passed 4-0-0 MOTION: SECOND: ABSENT: VOTE: Com. Mahoney moved to continue the public hearing for the R1 ordinance amendment to the September 28 Planning Commission meeting Com. Stevens Com. Doyle Passed 4-0-0