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HomeMy WebLinkAbout2005/07/13 - Minutes - PC-HPC CITY OF RANCHO CUCAMONGA I PLANNING COMMISSION MINUTES Regular Meeting July 13, 2005 Chairman Macias called the Regular Meeting of the City of Rancho Cucamonga Planning Commission to order at 7:00 p.m. The meeting was held in the Council Chambers at Rancho Cucamonga Civic Center, 10500 Civic Center Drive, Rancho Cucamonga, Califomia. Chairman Macias then led in the pledge of allegiance. ROLL CALL COMMISSIONERS: PRESENT: Richard Fletcher, Rich Macias, Larry McNiel, Cristine McPhail, Pam Stewart ABSENT: None STAFF PRESENT: Brad Buller, City Planner, Candyce Burnett, Associate Planner, Dan Coleman, Principal Planner; Michael Diaz, Senior Planner, Kevin Ennis, Assistant City Attorney, Donald Granger, Associate Planner, Dan James, Senior Civil Engineer; Louis LeBlanc,Assistant Planner; Vance Pomeroy, Contract Planner, Gail Sanchez, Planning Commission Secretary; Lois Schrader, Planning Department Secretary; Mike Smith, Assistant Planner; ANNOUNCEMENTS Brad Buller,City Planner, suggested the Commission hear Item C with Items E, F,and G;that Item D be heard with Item I; and Items J, K, and L be heard together as well. He also announced the retirement of Gail Sanchez and thanked her for her many years of hard work and dedicated service. He commented that she has become an expert in processing projects involving California environmental law and in land use issues. He invited everyone to join staff in her retirement celebration on July 21. Chairman Macias thanked her for her help and commented on her invaluable attention to detail in assisting the Planning Commission over the years. The other Commissioners concurred. APPROVAL OF MINUTES Motion: Moved by Fletcher, seconded by McNiel, carried 4-0-1 (Macias abstain), to approve the minutes of June 22, 2005. CONSENT CALENDAR I A. MAKE A FINDING THAT DISPOSAL OF CITY OWNED PROPERTY PER GOVERNMENT CODE SECTION 65402 LOCATED ON THE NORTHWEST CORNER OF EIGHTH STREET AND BAKER AVENUE IS IN CONFORMANCE WITH THE GENERAL PLAN-APN: 207-541- 60. • B. DEVELOPMENT REVIEW DRC2004-01107-TRIMARK PACIFIC HOMES, L.P.-The design review of building elevations and detailed site plan for 23 single family lots on 17.2 acres of land in the Very Low Residential District (.1 to 2 dwelling units per acre) in the Etiwanda Specific Plan, located on the west side of East Avenue, south of Wilson Avenue-APN: 0225-122-06, 49, and 50. Related Files: Preliminary Review DRC2004-00466 and Tract Map SUBTT16113. On June 27, 2001,a Mitigated Negative Declaration was adopted by the Planning Commission for Tentative Tract Map SUBTT16113. The California Environmental Quality Act provides that no further environmental review or Negative Declaration is required for subsequent projects or minor revisions to projects within the scope of a previous Negative Declaration. Motion: Moved by McNiel,seconded by Stewart,to adopt Items A and B of the Consent Calendar as presented. Motion carried by the following vote: AYES: FLETCHER, MACIAS, McNIEL, McPHAIL, STEWART NOES: NONE ABSENT: NONE -carried C. ENVIRONMENTAL ASSESSMENT AND DEVELOPMENT REVIEW DRC2004-00822 - KB HOME GREATER LOS ANGELES INC. -A request to review site plans and elevations for 15 single family detached homes on 5.02 acres of land in the Low Medium Residential District(4-8 dwelling units per acre), located at the northeast corner of Candlewood Street and Etiwanda Avenue -.APN: 1100-031-01 thru 04. Related Files: Tentative Tract Map SUBTT16643, Conditional Use Permit DRC2004-00825,Variance DRC2005-00186,and Tree Removal Permit DRC2004-00824. Staff has prepared a Negative Declaration of environmental impacts for consideration. This item was pulled from the Consent Calendar and the minutes appear in conjunction with Items E, F, and G. D. ENVIRONMENTAL ASSESSMENT AND DEVELOPMENT REVIEW - DRC2004-00981 - CECIL CARNEY-A request to develop eight industrial buildings totaling 48,048 square feet on 3.35 gross acres of land in the General Industrial District(Subarea 2), located on the south side of 9th Street, east of Lion Street - APN: 0209-013-48. Related File: Tentative Parcel Map SUBTPM16899. Staff has prepared a Negative Declaration of environmental impacts for consideration. Item D was pulled from the Consent Calendar and the minutes appear in conjunction with Item I. PUBLIC HEARINGS, Commissioner McPhail recused herself from hearing Items C, E, F, and G because her employer has received remuneration from this applicant. C. ENVIRONMENTAL ASSESSMENT AND DEVELOPMENT REVIEW DRC2004-00822- KB HOME GREATER LOS ANGELES INC. -A request to review site plans and elevations for 15 single family detached homes on 5.02 acres of land in the Low-Medium Residential District(4-8 dwelling units per acre), located at the northeast corner of Candlewood Street and Etiwanda Avenue — APN: 1100-031-01 thru 04. Related Files: Tentative Tract Map SUBTT16643, Conditional Use Permit DRC2004-00825, Variance DRC2005-00186, and Tree Removal Permit DRC2004-00824. Staff has prepared a Negative Declaration of environmental impacts for consideration. ' Planning Commission Minutes -2- July 13, 2005 E. ENVIRONMENTAL ASSESSMENT AND TENTATIVE TRACT MAP SUBTT16643—KB HOME GREATER LOS ANGELES INC.—A request to subdivide 5.02 acres into 15 numbered lots for the purpose of developing 15 single-family homes in the Low-Medium Residential District (4-8 dwelling units per acre), located at the northeast corner of Candlewood Street and Etiwanda Avenue — APN: 1100-031-01 thru 04. Related Files: Conditional Use Permit DRC2004-00825;Development Review DRC2004-00822,Variance DRC2005-00186,and Tree Removal Permit DRC2004-00824. Staff has prepared a Negative Declaration of environmental impacts for consideration. F. ENVIRONMENTAL ASSESSMENT AND CONDITIONAL USE PERMIT DRC2004-00825—KB HOME GREATER LOS ANGELES INC.—A request to review site plans and elevations for two single family detached homes fronting Etiwanda Avenue on a portion of Tentative Tract Map SUBTT16643 on 5.02 acres of land in the Etiwanda Avenue Overlay District and Low-Medium Residential District(4-8 dwelling units per acre),located at the northeast comer of Candlewood Street and Etiwanda Avenue—APN: 1100-031-01 thru 04. Related Files:Tentative Tract Map SUBTT16643, Development Review DRC2004-00822, Variance DRC2005-00186, and Tree Removal Permit DRC2004-00824. Staff has prepared a Negative Declaration of environmental impacts for consideration. G. VARIANCE DRC2005-00186 — KB HOMES GREATER LOS ANGELES INC. —A request to allow sound walls at the southerly portion of Lots 4, 5, 13, 14, and 15 of proposed Tentative Tract SUBTT16643 to be up to 13 feet in height—APN: 1100-031-01 thru 04. Related Files: Tentative Tract Map SUBTT16643, Conditional Use Permit DRC2004-00825, Development Review DRC2004-00822, and Tree Removal Permit DRC2004-00824. I Vance Pomeroy, Contract Planner, presented the staff report noting that Condition No. 2 found on page 87,Condition 4-e on page 88,Condition 8-b and 13-a,b,and con page 89,Condition No.2 on page 119, Condition No.s 4-e and 8-b on page 120, Conditions 13-a, b, and con 121a and b, Condition No. 2 on page 155,4-e and 8-b on page 156, 13a, b, and Condition con page 157 a of the agenda packet have been changed and the revised wording has been placed in front of the Commissioners for their review. Jary Cockroft, representing KB Homes at 801, Corporate Center Drive,Suite 201,Pomona,stated he has read and accepts the amended conditions as presented by staff and he is available for questions. Chairman Macias opened the public hearing. Ron Shutter, 7491 Etiwanda Avenue, stated he lives in the yellow and white historic home on Etiwanda Avenue,now surrounded by construction. He commented that from his house he used to watch the sheep graze in the fields. He noted that KB Homes has been a good neighbor and is a good developer and he supports the project,however,he expressed concern about the grading and the final elevation of the homes in relationship to his house. He said his house now appears to be in a hole. He also mentioned that the construction dust is excessive and he has had to deal with construction noise for about 1 1/2 years that begins in the early morning hours and continues until late in the day. He commented that Centexaaoss the street is not doing a good job. He said he appreciates the Commission addressing his concerns and he feels KB Homes is doing a good job so far. Seeing and hearing no further comment,Chairman Macias dosed the public hearing. Commissioner Stewart remarked that this project is very straightforward. She asked the applicant to address the issue of the grading of the property prior to the Commission making a decision. Chairman Macias reopened the public hearing. Planning Commission Minutes -3- July 13, 2005 Jary Cockroft commented that Mr. Shulfers home is to the north of the KB project. He said the new homes to the south of Mr. Shulfer's house would be lower than his. Commissioner Fletcher confirmed that the homes to the north of Mr. Shulfer are higher and the homes to the south of Mr. Shulfer will be lower. Mr. Cockroft said that is correct and that there will be a retaining wall between their properties. He said he has agreed to meet with Mr. Shulfer and to walk through the grading together. Commissioner McNiel confirmed that no water/runoff will be deposited on Mr.Shulfer's property and that his water/runoff will continue to drain off properly. Mr. Cockroft said he is unsure as to how Mr. Shulfer's property drains at the present time and therefore that will be part of what they discuss because he wants to be sure his property does drain since KB nearly surrounds him to the north and the south. Chairman Macias dosed the public hearing. Commissioner Stewart commented that we "raised the bar;' with the concept of 360 degree architecture in their project design. Commissioner McNiel commented that hours for construction are in place in the Development Code and are also in the Resolution of Approval. He suggested that if he experiences further problems with that, that he call City Hall and it would be taken care of. He directed Mr. Cockroft to not only meet with Mr. Shulfer but also with staff from the Engineering Department to be sure the grading issue is addressed. Commissioner Fletcher commented that there is good contact/relationship already established,that the project is an enhancement to the area, and he supports the project. Chairman Macias said it is a good project and that Engineering has already taken note of the potential grading issue. Motion: Moved by Stewart,seconded by McNiel,to adopt the resolutions of approval as amended for Development Review DRC2004-00822, Tentative Tract Map SUBTT16643, Conditional Use Permit DRC2004-00825, and Variance DRC2005-00186 and to adopt a Mitigated Negative Declaration of environmental impacts. Motion carried by the following vote: AYES: FLETCHER, MACIAS, McNIEL, STEWART NOES: NONE ABSENT: NONE ABSTAIN: MCPHAIL -carried H. CONDITIONAL USE PERMIT 88-45 AND ENTERTAINMENT PERMIT 91-03—MARGARITA BEACH — A public hearing to examine the business operation to ensure that it is being operated in a manner consistent with conditions of approval or in a manner which is not detrimental to the public health, safety, or welfare or materially injurious to properties in the vicinity. The Planning Commission will consider modification or revocation of the approved Conditional Use Permit and Entertainment Permit. (Continued from June 22, 2005). Brad Buller, City Planner, noted that Chairman Macias did not attend the previous hearing held on June 22,but that he was provided with the audiotape of the meeting,the staff report,and the various exhibits and materials provided at the meeting. He commented that it is at the discretion of the Planning Commission Minutes 4- July 13, 2005 Chairman as to whether he feels prepared to participate in and act upon the review of the Margarita Beach business operation. He noted that at the previous meeting,the public hearing was continued with the intention that the hearing would be reopened tonight. He noted that Vice Chairman McNiel was clear, that the hearing would be reopened primarily for the purpose to allow the Commission, the applicant and the residents to respond to the modified conditions being presented in the draft resolutions of approval and the information being presented by staff in the staff report. He reported that Mr. Mosher called earlier this evening and said he would like to present a video recorded since the last meeting. Mr. Buller commented that it would be at the discretion of the Chairman as to whether he will allow new exhibits or evidence to be presented this evening. Chairman Macias reported that he was present at the first meeting in March,that he is well aware of the issues,he has reviewed the tapes,he has read the minutes and various transcripts of what took place at the June 22 meeting and therefore, he feels comfortable to fully participate in the meeting tonight. He noted that he would open the public hearing tonight with a request for cooperation,that we are hem to only address new information in the staff report and the new conditions contained in the draft resolutions. He commented that based upon the previous meetings, the Commission is well appraised and well aware of the impacts on the community and on the situation and he asked the Commissioners to support this approach. Kevin Ennis,Assistant City Attorney,reported that the hearing would take place in this fashion: Staff will present the report,any new information contained in the report,and the new conditions. He said that the Commission would then have an opportunity to ask questions of staff and hear their subsequent answers. He said the public hearing would then be opened for the applicant to comment with respect to the new information/conditions followed by the public. He asked that the comments be limited to information presented by staff and the new conditions. I Chairman Macias asked counsel to clarify what the public should do. He asked if this procedure fully complies with the Brown Act. Mr. Ennis stated that they should limit their comments to only the information that staff presents tonight and the new conditions that staff is recommending tonight. He confirmed that we are in full compliance of the Brown Act. The applicant and the public have been given full opportunity to adequately voice their comments. Mike Diaz, Senior Planner gave the staff report. He noted that the modified conditions are found in the agenda packet on pages H-92 through H-104, beginning with the Conditional Use Permit Resolution conditions on page H-94. He noted that modifications have been made to Conditions No.s 1, 2, 3,4, 5, 7, 10, 15, 17, 18, 19, 20, and 21. He highlighted each change as follows: No. 1) gives a more specific intent for the serving of alcohol in conjunction with a restaurant use; 2) a scheduled requirement for the applicant to provide evidence supporting his intent as a "bona fide eating place," as identified by the Califomia Business and Professional Code, 3) provision of an updated floor plan which confirms the primary use as a restaurant, 4) new hours in which the business may serve alcohol in conjunction with the restaurant use, 5) requirement for conduct as required by the ABC, 7) requirement to keep rear doors closed for noise mitigation and a time modification for the business to close at midnight, 10)specific restrictions for outside lighting/search lights, 15)dance floor size restricted to 150 square feet, 17)occupancy levels not to exceed 233 per Fire District, 18)compliance with Adult Entertainment section of the Development Code, 19)security and crowd control in the parking lot,20)security posted in parking areas to monitor parking,limiting it to the parking lots, 21) introduces timelines for periodic reviews. He commented that the conditions in the Entertainment Permit are modified to be consistent with the conditions in the Conditional Use Permit and therefore the language is similar. He added that Condition 20 also requires some parking lot signage that reminds the patrons of their responsibilities. Chairman Macias asked for clarification on the review period. Planning Commission Minutes -5- July 13, 2005 Mr. Diaz said there would be two consecutive 3-month reviews followed by two, 6-month reviews. Chairman Macias opened the public hearing at 7:37 p.m. James Reiss, 10535 Foothill Boulevard,Suite 410, Rancho Cucamonga,stated he is legal counsel for Mr. Davidson. Mr. Reiss stated he believed the directive from the Commission at the last meeting was an unattainable time schedule. He said he tried to hand deliver all the required documents by the July 5 deadline. He noted that there was no give and take exchange with staff that was directed by the Commission. He said it never took place. He said they (he and Mr. Davidson)understood that they were going to have an opportunity to review the modified conditions and to comment and they were never given the opportunity to respond. He remarked that the operator (Mr. Davidson) might not like the conditions that would be put into the conditions and therefore he(Mr.Reiss)believed that Mr. Buller had a pre-ordained idea of what he was going to put into the modified conditions. He said this is the starting point, "the first brick, and the record will dictate if this"case"goes to court. He said what is in the record is what the Commission would rule on. He said we heard 32 complaints, 13 at the first meeting(City Council)and 19 at the second. He noted that the operator(Mr. Davidson) had made great strides in solving the problems and things seemed to be moving forward and then the tide of the meeting was tumed to advertising and marketing with Ms.Sanchez when she displayed the photographs,and the community voiced strong opinions about those photos. He contended that the photos must have foundation of the complaint but the problem is that the photographs are not related to the Margarita Beach location. He commented that Mr. Ennis made a leamed opinion and evaluation about what the Code says about adult entertainment but that he is assuming the photographs are linked to Margarita Beach. Mr. Reiss emphatically retracted any link to the Margarita Beach location,that the association is untrue and the photos are not from them(Margarita Beach). He said they have no foundation,and there is not one live witness to prove anything different. He said the new photos from the FX103 website were all taken at the San Bemardino location. He took exception of Mr. Ennis' opinion in that it takes a"leap of faith"that any of the individuals depicted in the photos are performing a substantial portion of the presentation. He said no employee nor anyone being paid by the operator is doing anything related to adult entertainment. He added the Commission could consider that in their consideration but they would lose all day, and if the City is sued, they will lose all day and that the issue of adult entertainment is a "red herring." He "vehemently" denied that any such activity is going on. He said he realized what the intent was of the entire location,that in 1988, Siam Garden was opened with no license for alcohol and then about a year later they applied for a beer and wine license. He said there is an issue with the language stated"incidental"vs."in conjunction with." He reported that when'Skipper'took over the restaurant in 1991,he asked for dancing,a bar,DJ's,rock bands,and other acts related to entertainment. He said they had pool leagues and pool teams and they were open until 2 a.m.every night. He said he (Mr. Davidson)bought Skipper's in 1996 and at that time,90%of his gross revenue was alcohol sales,not food. He reported that the business now has about an 80-20%ratio of food to alcohol sales. He commented that if you believe Skippers was just a restaurant with no alcohol and a couple of people waiting in the back,you are mistaken. He added that if this case goes to the City Council and then to court,this point is a critical analysis error. He said that if you go back to 1996, you have basically the same operation. Mr. Reiss contended that the only difference is that Mr. Davidson and his partners just did a better job building the business and he is being criticized for increasing the business. He said Mr. Davidson has not come to the Commission in 9 years for any changes to the conditions. He suggested that the Commission is going backwards because of the Internet photos. He stated that with the changes shown in the resolutions, such as limiting his hours to serving alcohol until only 11:00 p.m.would shut him down and dose his business. He commented that the City is buying them significant litigation and that they are not allowing due process. He said the Commission is denying him his right to due process as stipulated in State law. He said the City would be discriminating against Mr. Davidson if the City imposes these new conditions. He reported that he did an analysis of other Conditional Use Permits in town that are allowed to stay open until 2:00 a.m. He said that you have to do the same for Planning Commission Minutes -6- July 13, 2005 everyone. He suggested that if we treat Mr. Davidson differently, "then you must have evidence in the record and that we do not have that." He said missing from the record is documentation for intervention from Police, Fire,Code Enforcement,and ABC. He said undoubtedly the same kinds of things are occurring in other bars,that people are unruly,but we do not see the Commission taking any action against them. He said the driving force is 15 residents. He commented that the problem is he(Mr. Davidson)is not breaking the law. He said his employees are embarrassed when they tell people where they work. He reported that people voiced their belief that the employees serve drinks without their shirt on. He said the employees say, "I don't do that, this is a neighborhood bar." He said he is submitting for the record a petition signed by the patrons of Margarita Beach stating they will abide by every requirement,but that they already follow the requirements and they are following the law. He said they already addressed the problems in the neighborhood, but that was not good enough. He reported that Mr. Davidson proposed to add money to his kitchen, open at noon and make it more of a lunch place. He said if they close at 11:00 p.m. it will end his business. He said you have to have a ladder of discipline. He said this is not a ladder of discipline and that we know that the bar business depends upon hours of operation. He stated that "if you want Rancho Cucamonga to be an 11:00 p.m. closing time then do it, but you better do it for everybody." He remarked,"if you treat Mr. Davidson differently that it is against the law,that this is not due process and you do not have the evidence in this case." Briane Brinca 25715 Van Leuven, Loma Linda,stated she is an employee of Margarita Beach. She read into the record the premise of the petition signed by 600 patrons of Margarita Beach supporting the business operation. It reads, "Petition to City of Rancho Cucamonga Planning Commission. I sign this petition in support of Margarita Beach. I urge the Planning Commission to work with Margarita Beach and not to revoke or restrict their permits to operate. I personally agree to support Margarita Beach by only parking in the Margarita Beach parking lot,to exit quietly when I leave and to never park or drive in the nearby neighborhood. [have never witnessed any activity at Margarita Beach that could be considered Adult Entertainment as defined by the Development Code—Adult Cabaret—A nightclub,bar,restaurant,or similar establishment during which a substantial portion of the total presentation time features live performances which are distinguished or characterized by an emphasis on "specified sexual activities" or by exposure of "specified anatomical areas"...(it continues)Margarita Beach is not a strip club. It is a Bar&Grill that offers clean fun,dancing,good food and drinks in a safe environment. She stated she is a graduate of Cal Baptist University and has been an employee of 3 years. She stated her job at Margarita Beach helped her get through school. She said over half of the females employed at Margarita Beach are college students and 2/3 of them are single moms. She said the company has had a positive influence in their lives. She continued at length, giving examples of the lives of employees and their personal pursuits made possible by their employment at Margarita Beach. She said without Margarita Beach,many people would lose their main source of income. Chairman Macias interrupted Ms. Brinca and asked her to address the issues brought before the Commission tonight and on the conditions being reviewed. He directed comment to Mr. Reiss that her presentation is just part of his(Mr. Reiss')continued presentation for the applicant,noting that it is just simply public testimony and if that is the case, he might as well just opening the public hearing for general testimony. Jim Reiss, legal counsel for the applicant, said that the critical component of the resolution is an hour change that would result in the closure of the business, and that he believes the public, including the employees, should be able to testify to its impact. Chairman Macias asked that it be specific in regard to the impact, that the Commission is not concerned with her background or her education, but in her comments regarding the new conditions. Mr. Reiss replied that the person is just trying to elicit who they are. Planning Commission Minutes -7- July 13, 2005 Chairman Macias replied that could be done by giving their name and a few sentences and to get specifically to the issue at hand, which are the new conditions and the staff report. Ms. Brinca said she is trying to show the opportunities and things that have come about as a result of her employment at Margarita Beach. She thanked Mr. Davidson for the opportunities there and has been a fair owner, an active member of the community and she has seen his generosity to his family and considers him a friend. Commissioner Fletcher asked if she is currently employed there,what her position is and what a sex shot is. Ms. Brinca said she currently works there as a bartender. She reported that it is a mix of ingredients including vodka and peach, it is a drink. Commissioner Fletcher asked how it is served. Ms. Bianca replied that the glass is placed on the bar, it is not poured or anything like that. Chairman Macias said the public hearing is open including the continued presentations of those testifying for Margarita Beach. Joan Robinson Shanks, 547 West 13th Street, Upland, stated she has been an employee for 9 years and has worked for Mark Davidson for 16 years. She remarked that she finds the reference to Margarita Beach as a strip club, offensive(from a newspaper article). She mentioned that"Pat"a resident of the mobile home across the street, who offered testimony at the prior meetings, was offered double pane windows by Mr. Davidson to mitigate the noise. She said she went over to her mobile home to assess the noise factor. She said Mr. Davidson is fair and honest. She said her job has helped her to raise 6 children. She said this is how she has eamed her living and raised her kids for 16 years. She presented materials from their food supplier to the secretary for the file. Chairman Macias again reminded those testifying to focus on the issues at hand. Romeo Raum, 8990 Alta Loma Drive,said he has worked for Mr. Davidson for 41/2 years. He said he began as a bouncer,and then became a bartender,then a manager,and now he is a co-partner at the San Bemardino location. He continued with his family background. He said Mark has been "slammed"personally and he is not as he has been portrayed. He said he has never witnessed as a manager the-allegations of urination, sex, loitering and ice chests on the neighbors'lawns (for the last 1 1/2 years). He said it is part of his duties to walk the neighborhoods at the beginning of the night and the end of the night. He said as a manager he has never had a complaint from the neighbors. He noted that he finds the allegations of the business being an adult cabaret or strip club offensive and that the article published in the newspaper was insulting and embarrassing. He said "we are a restaurant and bar,"there is no stage with a stripper pole, they do not give 'lap dances', there is no stage." He presented the manager's checklist which indicated his daily routine for checking the premises: 1) inspect front of building and back lots and residential area for trash, 2) 8:00 doorman checks front and back lots, front of the building, and the residential area and also places orange traffic cones on Ramona Avenue. He said no cones are placed on Estacia Court. He presented photographs indicating where the cones are placed in front of 8990 Ramona Boulevard and in front of the gas station and Ramona Market. He said these are placed at the request of"Rodney' and Ed Sanchez, both residents in the neighborhood. Chairman Macias asked Mr. Raum to make his concluding remarks because of the 5-minute time limit. Planning Commission Minutes -8- July 13, 2005 Mr. Raum presented the residential security log that indicates another check of the neighborhood,a list of acceptable non-patron cars in the parking lot and a list of any cars that were turned away on a nightly basis for the last 3 months. He noted that in the case of potential fights, the doormen are trained not to place themselves in the middle of a confrontation. He reported they are trained to notify the person that they cannot park in the residential area and if they do, "they will not be admitted to our club." He said when they ask people to leave it is usually the people that live in the apartments. Chairman Macias again reemphasized that the Commission is aware of all the issues including parking, regulations and attempted enforcement. He said that the concern is about the new conditions. He added that everyone here is a good person. He said we have already had full public hearing on all these issues;the Commission is well apprised of those issues from both sides. He asked those testifying to limit their comments to the new conditions being presented tonight. Wesley Hall, 11680 Mount Sterling Court, Rancho Cucamonga, said he has worked with Mr. Davidson for 3 1/2 years as a partner at one of his venues and that he oversees all the entertainment for all 3 locations run by Mr. Davidson. He mentioned that he worked at Black Angus as an entertainment coordinator for 8 years. Chairman Macias asked how much time he spends at the Margarita Beach location on a weekly basis. Mr. Hall indicated that he does not spend any time there, that he oversees the marketing and promotions for the location and he produces the flyers and works with the website. He produced promotional materials from other businesses in the area that he alleged are in violation of their entertainment permits. He asked if the Commission is going to condition all the other businesses to go out of business on their first violation or if they are going to go in that direction. He presented typical flyers of several restaurants and bars including Carlos O'Brian's, Bobby Magee's, The Branding Iron, Coconuts, etc. and that each depicts a girl and a drink special and that they serve food and have entertainment. He said Mr. Davidson is very conservative. Commissioner Macias asked what Mr. Hall's point is. Mr. Hall said "a girl, the drink special, the visual; you guys are making mention of adult entertainment, this is just the standard in the business." He remarked that, "this is how everyone promotes their business." Commissioner McNiel asked of the flyers presented,how many are located in Rancho Cucamonga. Mr. Hall replied, "one, Twins." He said Dean's is in Rancho and has no entertainment permit but they have Karaoke; Hide Awhile has no entertainment permit but they have Karaoke. He said in reference to something mentioned at the last meeting. He said because they have a picture of a girl in a bikini on the flyer does not mean that you would walk into the club and see girls in bikinis. He added that the business called Knockers,although they use the word'knockers,'does not mean you will go in and see women's knockers. He showed a flyer from Twins, which indicated a"Pimp and Ho"party, and "Bikini Tuesdays." He said their campaign is aggressive. He commented that they were voted the number one club in the "I.E." and they are a restaurant and a bar. He said these flyers are distributed throughout the community. He said you see a ton of boobs and G-strings on these flyers. Chairman Macias asked if he is presuming of the circulation of these flyers in the community. Mr. Hall said yes, he presumes they are all over and that the one for Twins came from 24-Hour Fitness. Planning Commission Minutes -9- July 13, 2005 Chairman Macias stated he goes there everyday and has never seen them. He then asked if Mr. Hall's point is that this type of advertising is the industry standard. Mr. Hall said yes and it is local, here in Rancho. Commissioner Fletcher asked if it is specifically with bars and nightclubs. Mr. Hall said yes bars, restaurant/bars, yes. Chairman Fletcher asked if he means bars and nightclubs that serve food. Mr. Hall said restaurant/bar/nightclub, yes, absolutely. He admitted, 'Two wrongs don't make a right." He asked if there is a ladder of discipline of what the Commission does when a business violates something on their permit. Chairman Macias said he did a good job of demonstrating what everybody in the industry is practicing, and in some cases, here in Rancho. Jose Samboline stated he is the co-owner and business partner in charge of marketing,advertising radio and the website. He said Mr. Davidson is not involved in this aspect of the business. He said he contracts out the design and oversees the process. He said people need to put the photos and flyers into the proper context. He said the new conditions are based upon this perception. He said it is a question of what the materials mean and how they are perceived. He indicated that much of what is shown on the website, I.E. Party.com, focuses on the late night portions of 3 separate businesses. He said the goal is to advertise events. He said they draw traffic from the photos and most are very generic. He claimed that the offensive photos presented to the Commission are only a handful of many photos, most are of just friends. He said the photos were chosen to give the most negative impression. Mr. Samboline said photo #1 just shows a girl dancing in her Halloween French maid costume and that she does not appear that way everyday. He said they are pictures of isolated events that only happen periodically. He continued and said picture#2 depicts a tongue near a girl's breast. He admitted it is in bad taste and shows poor judgment allowing them on the website, but it is not adult entertainment. He added that picture #4 shows two girls kissing, he responded with, "so-what"! It is nothing associated with adult entertainment. He said pictures#5, #6, and#7 are in bad taste, but they are just"hamming it up"for the camera. He noted pictures#8 and#9 are taken of girls in"booty shorts,"and contain no nudity,the pictures focus on the girl's rear end, it is in bad taste and poor judgment and is just"locker room humor." He admitted it is offensive to some but taken out of context. He added pictures#14 and#15 are of people just hamming it up for the camera. He said picture #16 is the "pasties" picture. He commented that this was her Halloween costume and he did not know how she came in the door. He suggested that perhaps she was covered with a jacket, shirt or a boa when she came in. He said he would not try to justify the picture,and this picture is wrong, it should not be there, but he said it is important to understand the context in that it does not depict a daily occurrence, only a slight bit of nudity. He said #17 indicates a smoking violation and it was cited and paid and the situation is rectified. He admitted that some pictures are in bad taste and are poor judgment and locker room humor, but it is not illegal or adult entertainment. He said most of the pictures did not occur at the Rancho location. He noted that for the 9-year anniversary party they did advertise with an aggressive drink special and that is only to create business at slower times of the day. He commented that just because the advertising shows a bikini clad girl does not mean the customer expects to see a bikini clad girl inside the business when they go inside. He commented on the flyer that mentions a"sex shot." He said that in the staff report Mr. Davidson has not identified sex shots. He said it is slang for a drink called "sex on the beach." He said this drink could be ordered at many restaurants. He said no nudity is involved; there was no simulated sex act and no interaction between employees and patrons. He said there is much double entendre for the names of drinks with sexual overtones,and it is very common. He said Margarita Beach has a history of cooperation and willingness towards Planning Commission Minutes -10- July 13, 2005 working with the City and the neighbors. He said they are trying to solve the problems. He noted that closing the business at midnight essentially shuts it down for good. He said the revenue created after midnight would be the difference between success and failure and if the hours are reduced, it reduces their ability to create income and to stay alive. He asked the Commission to reconsider the harshness of the restrictions and to return to the more reasonable conditions proposed at the last meeting. He commented that the activity of the business next door(Twins)is overlooked and it is more negative than what Margarita Beach is doing. He asked where the equal enforcement is and that this is clearly a"borderline case." He added that it really is not that bad,it is being taken out of context. Mr. Davidson approached the lectern at 8:33 p.m. Mark Davidson, 9950 Foothill Boulevard (owner of Margarita Beach)stated this is his fifth meeting regarding the operation of his business. He said he understands this is a continuation of the previous hearing, but that he feels the Commission is cutting everyone short. He claimed he has been"trashed"for almost 10 hours and he requested the courtesy to not cut him short. He said the initial strategy was to focus on correcting the problems and to stay positive. He said he is being given 5 minutes to be positive. He asked where the due process is, that he is confronted by neighbors who lie and make up stories and then he was not allowed to see the evidence in advance, that most of the incidents were isolated incidents, the accusers made gross statements, that he cannot rebut and that he only has 5 minutes. He said he was given less than 24 hours and 18 hours to respond. He asked for due process. He said the Planning Commission did not ask one question of Pete Ortiz(Police Chief)who knows what he has done in the way of improvements. He noted Mr. Buller was directed to have dialogue with him and Commissioner Stewart said he had eamed the right to that. He claimed he sent four e-mails and none were answered. He referred to Mr. Buller's remark at the previous meeting in which he stated there would come a time when "he would engage"Mr. Davidson and that did not happen. He said Mr. Buller went on vacation and Mike Diaz was too busy to talk to him. He said Planning Staff changed the wording in the Conditional Use Permit. He stated that in the Entertainment Permit, the term"incidental"does not exist. He asked for the ladder of discipline i.e., where is the punishment or fine. He asked if the goal was to work and solve problems. He asked what it says to the business community. He remarked that he was willing to cooperate, to address the problems. He said he did address them and then it would change. He said there is no evidence from the Police and that all the neighbors said things have gotten better. He commented that he has been under a microscope for 5 months. He noted that the Police calls for service has been cut down to 2 and that he "did a helluva job" taking care of the problems and then it turned into a moral issue. He said his opponents threw a bunch of stuff on the wall to see what would stick. He said they are not engaged in adult entertainment,that there is no substantial amount of time engaged in those activities and they do not hire performers. He claimed the Conditional Use Permit has been re-worded to say the entertainment is incidental to the restaurant and bar...He noted, "Nowhere does it say that." He said he had a conversation with Mr. Sanchez in which Mr. Sanchez said it is not about the problems in the neighborhood, but about the nature of the business. He said Mr.Olsen said it is his goal to put Mr. Davidson out of business. He asked how he should respond to that. He remarked that the neighbors never acted in good faith and that they have caused irreparable harm to his business in his attempts to meet their moral standards. He said Mr. Olsen would keep fighting to close him down that he is not going away. Mr. Davidson said he would fight forever for his business. He said the neighbors are extremists, and liars, and the flyers are on the street. He said the 14 suggestions submitted by Ed Sanchez are extreme and some are not even legal. He said we should make it the same for everyone. He said he tried to be nice, "but what did it get me?" He said he is being conditioned out of business. He read an e-mail sent to the City into the record. He said he would be willing to do 3 things to improve his business: 1) put $20,000 into remodeling the kitchen to promote food sales, 2) lengthen the hours of operation to help make it more of a lunch place and 3)add a restriction that does not allow a cover charge. Mr. Davidson said he would challenge the neighbors to make their statements Planning Commission Minutes -11- July 13, 2005 under the penalty of perjury. He said he would challenge the City to charge him with operating an adult entertainment business. He said staff failed to follow the instructions of the Planning Commission,that they were told to work out the conditions and that Mr. Buller had an obligation to talk to him. He said Mr. Diaz never responded to his e-mails. He set out a challenge for staff to explain the difference in the words in the entertainment permit and the CUP/incidental entertainment. He offered a suggestion of a fine or suspension. He said he is angry and upset and that his employees are in danger of losing their jobs. The record indicates that Mr. Davidson spoke for 20 minutes. Jim Olsen,a neighboring resident,commended the Planning Commission's recommendations and said they would force compliance from Mr. Davidson and the enforcement of the City. He said he still has concems with the Entertainment Permit,that Mr. Davidson has not complied with either the Conditional Use Permit or the Entertainment Permit and that he has behaved badly in regard to the smoking violation. He said the City should revoke the Entertainment Permit and the Conditional Use Permit as stated in the Municipal Code 5.12.100. Ed Sanchez, 9869 Estacia Court, said there is a consensus among the neighbors that they do not have a problem with the modified Conditional Use Permit but they do have a problem with the Entertainment Permit. He stated that Mr. Davidson is still holding promo events. He asked that in regard to the website, what would a "reasonable person"think in viewing those photographs. He said he wants the Entertainment Permit revoked. David Mosher said he lives behind Margarita Beach. Chairman Macias said he has been made aware of the material Mr. Mosher wishes to present. Commissioner Fletcher asked when the video was taken. Mr. Mosher said a few weeks ago around 2:00 a.m. Commissioner Fletcher asked why was he taping, and if he was being disturbed. Mr. Mosher said he heard loud noise and that he did call the police on June 22 because of a disturbance. Chairman Macias asked if on the night he took the video and again on the 22nd, did he call the police and did they come. Mr. Mosher said he called and they did not come. He said he spoke to dispatchers Amy, Ed, and Tina. He reported that he also called on July 10, at 12:00 midnight, 12:40 a.m. and again at 2:30 a.m. He said he called the police three times. He submitted a noise log and still pictures taken from the video. Chairman Macias reiterated that our purpose for this hearing is to address the conditions in the resolutions and that his testimony is redundant. Chairman Macias asked Sergeant Morrison to address the Commission. Sergeant Paul Morrison said it is the department policy to respond to any call at any time. He said he went to his house, gave him his card, asked him to call if he had any problems and he never received a call from that family. He said that he had to check as to recent calls for service. Commissioner McNiel asked what reports he has on hand. Planning Commission Minutes -12- July 13, 2005 Sergeant Morrison said he had breakdown reports dated March 17, and February 2, 2005 and a report that covered the period of March 22 through June 7, 2005. He said he did not have anything more current that that. Commissioner Fletcher asked if there are any other locations in town that bother or disturb the residents or experience this many problems. Sergeant Morrison said there are several that could cause disturbances in this town. He said there are some similar type businesses that do. Jean Mosher, 8026 Cambridge Avenue, reported that on the same night as the last Planning Commission meeting(June 22),they experienced a lot of noise coming from the open back door of Margarita Beach. She said the police came several days later. She said the officer assumed she was lying although he was friendly and nice. She indicated she is reluctant to call the police if it is not a life-threatening situation. She said they experienced the same thing a few days later. Chairman Macias asked if this is a common occurrence. Mrs. Mosher stated it is. Chairman Macias asked if she thought the modified conditions would make the situation better. Mrs. Mosher said no because of the nature of the business,they are drunks and you cannot control them. 111 Chairman Macias asked if the disturbances have continued. Mrs. Mosher said they have and she called the police recently at about 2:00 a.m. and spoke to a dispatcher. She said she asked the dispatcher how to file a formal complaint and the police never came. Vicky Scimone,5016 Pasito Avenue,said she read the report and agrees with the limitations on the business. She said although the Commission stated this is the first time this was brought to their attention,that is not true. She said this is no surprise to Mr. Davidson. She said she is sorry about how this may affect his employees. She said she only cares about what happens in front of her house, not what goes on inside the building. She said she was previously a waitress at Red Robin. She commented that they have a bar and it was never advertised in that manner and this is not what a normal restaurant does. Chairman Macias dosed the public hearing. He commented that we have heard the numerous issues and both sides. Brad Buller referred to page H-11 and H-12 of the agenda packet where the reference to incidental sales is made. He said in section B.2.(b) of the Resolution on page H-11, the original Conditional Use Permit Resolution of Approval 88-242 states, " The application is for the incidental sales of alcoholic beverages as menu items in conjunction with the sales of food." He said that was the original intent for the approval. He said Mr. Davidson correctly identified the term in the conditions "in conjunction with." He added that the original approval also stated the closing time would be 11:00 p.m. He said the following modification expanded the hours and the entertainment. He remarked that we went back to the original use on the property. Mr. Buller apologized if there was a lack of dialogue between the applicant and staff. He stated it was his intent there be dialogue. He remarked that at the previous meeting he indicated that there would come a point that we had a time line to get this ready to bring back to the Commission and discussion could have gone on and on but that regardless of the time issue we should have made some contact with Mr. Davidson. Planning Commission Minutes -13- July 13, 2005 Mr. Ennis responded to some of the comments made by Mr. Reiss in regard to his belief that the City is acting against the law. Mr. Ennis commented that it is not discriminatory or a violation of due process to impose restrictions on his hours of operations. He said Mr. Reiss contends that if other businesses can operate beyond these hours then it would be discriminatory to limit Mr. Davidson's hours of operation. He noted the many hours of testimony/comments regarding the impacts on the community,specifically the late night impacts. He said the Commission could weigh the evidence, believe or reject the evidence in part or in its entirety presented based upon the assertions and the denials made by the applicant. He said regarding due process, that the issues before the Commission have been presented over the course of several public hearings and that there have been multiple opportunities for the applicant to present information and for rebuttal. He noted that between he and his attorney and their representatives,they spoke for approximately 1 hour and 15 minutes. He said the agenda packet contains a letter from the applicant in which the applicant responds to the information presented at the last meeting. He added that he does not believe the proceedings or process has not violated their due process rights, and that the Commission has given them a fair and adequate opportunity to respond. He said regarding a "ladder of discipline," he said there has been information regarding official intervention and official response to incidents occurring at the sight such as the code enforcement smoking violation. He commented that the applicant has indicated that there is nothing in the record to support the conditions imposed or proposed by staff. He noted that there is much testimony and evidence in the record and that the Commission should weigh the validity of the evidence and that they have adequate evidence on which to base their opinion. He reported the conditions being imposed merely require the business to comply with existing law as it pertains to adult entertainment. He said this business has a specific type of license that requires it to be a bona-fide eating establishment and certain restrictions for attire for both customers and employees as outlined in ABC law. He noted the conditions ensure they comply with those laws already in existence. He added that the questions and issues were raised as to whether this is being operated as an adult business. He said no conclusion or determination has been made. He commented that if the City's Code Enforcement believes it has risen to that level, and then they will proceed. He said although the applicant denies that the photographs are from this location,there are conflicting statements in relation to that. He noted that Mr. Reiss acknowledged that 9 of photos are from the Margarita Beach location. He said the co- owner at one point made comments that there is no evidence that they came from this location and then conflicting comments were made stating they were of some special events at that location. Commissioner McNiel noted that counsel clarified many of their concems. He re-stated their purpose in dealing with the neighborhood problems/impacts. He remarked that the advertising presented by Mr. Davidson and Mr. Hall remarkably is the industry standard. He asked what it says about us(inferring the City as'us'). He noted that Mr. Reiss indicated there is no evidence and that it is a "red herring." Commissioner McNiel indicated there is substantial evidence upon which a judgment can be made. He referred to Mr. Samboline's remarks regarding the website photos and responded that"bad judgment"is something you correct and"locker room humor"is something that should stay in the locker room. He said he read the conditions and he supports them as presented by staff. He added that the Commission is charged with the"maintenance of community"and that it is important that they do that. He remarked that they have not done much with the"Twins"operation because they have not received a lot of complaints about them, but he suggested they start that process. Commissioner Stewart asked Mr. Buller for clarification regarding any dialogue that may have taken place concerning the conditions in the draft resolutions. Mr. Buller stated he was out of the office for two weeks and was not privy to the conversations that may have taken place prior to the report being sent out. He deferred to Mr. Coleman and Mr. Diaz to respond. Planning Commission Minutes -14- July 13, 2005 Michael Diaz stated that Mr. Davidson is correct in that he sent several e-mail messages that were in tum forwarded to other staff members. He stated he also had several phone conversations with Mr. Davidson's attorney in which his requests for an accounting of all similar Conditional Use Permits and Entertainment Permits be provided. He said it took a considerable amount of time to pull up those permits for their review. He noted that the same request was made by the residents. He apologized that the e-mail referred to by Mr. Davidson did not get into the report with the many other exhibits. He said there was some dialogue going on in the midst of preparing the report and communicating with the attorney.. Commissioner Stewart asked if there was any interaction with Mr. Davidson specifically related to the proposed conditions related to the hours of operation or anything else in the resolutions. She asked if he had input, or if he had a "say" in those conditions. Mr. Diaz said specifically regarding the conditions,"no." He said they were writing them up until the last minute prior to the packets being produced and that it would have been premature to discuss things that had not been written yet. He commented that the residents had asked for the same information and that they also did not receive anything because staff was still preparing the resolutions. Mr. Buller stated he communicated with Mr. Coleman and Mr. Diaz prior to his absence from the office. He remarked that there was no preconceived idea as to how these conditions would evolve after their two-week dialogue. He instructed them to work closely with the attorney's office. He said it would have added another two-week continuance or more to send it out again to both sides and to again wait for their response. He said there was time for either side to bring suggested modified conditions prior to tonight's meeting for their consideration. Commissioner Stewart commented that she has found staff to be comprehensive and responsive in the past. She noted that she had evaluated all the calls to the police. She said that although the residents state they have had problems for 9 years, she is working from the proceedings that this body(the Planning Commission) has been involved with and that these hearings are the first time this Commission has dealt with this issue and that she can only address that, not other meetings, incidents,and/or conversations that may have taken place prior to these meetings. She commented that the Conditional Use Permit allows residents to come and voice their concerns. She said this dialogue is unique to this bar that has become problematic to the neighbors. She said the issue is whether or not this business has been injurious to the public and if it can be corrected through actions/mitigations. She said she believes they can. She remarked that the resolutions go a long way toward that start point. She said regarding a "ladder of discipline,"this is the first step toward that in imposing some rules and regulations that will help get control. She said she has a problem with Mr. Davidson not being given an opportunity to respond to and offer suggestions to the conditions in the resolutions. She said she disagrees with Commissioner McNiel in that she feels the restriction of the hours could be problematic and would impose difficulty for this type of business. She said most of the conditions are appropriate. She commented that if the only issue is the hours of operation then they could discuss it and move forward tonight. She said otherwise she believes Mr. Davidson is owed the opportunity to respond and correct the habits of his business. She said these things can be mitigated. She noted that the people testifying tonight that made the complaint have indicated things have gotten better. She said it is not her goal to shut the business down but to mitigate it and to make it a working productive business in the community. She said if there are other significant issues that need to be addressed then it should be brought back after another two- week period or longer so that the conditions can be looked at and open dialogue can take place. Commissioner McPhail commented that she appreciates the thoughtfulness of her collegues. She said the Commissioners are not a law enforcement body and that they appreciate the service of those who are. She also thanked the Planning Staff for their informative package. She said the Commission is there to address the land use and that they are not an enforcement body. She Planning Commission Minutes -15- July 13, 2005 emphasized that they are to determine what is in the best interest of the community. She said the question is not one of morals, but only to determine if that business is appropriate in that location. She said it is not reasonable to have cones in driveways and calls from the neighbors. She said she is not convinced that operating under the present conditions is appropriate. She said closing the business at midnight is not unreasonable for a restaurant venue. She said the changes in the conditions would mean changing some things in the business but that it could be done in a management savvy way. She echoed Commissioner Stewart's concerns regarding the lack of dialogue. She said she would consider another shot at dialogue but that she appreciates the resolution with the conditions as presented. Chairman Macias asked for clarification and if she is suggesting a continuance. Commissioner McPhail said she would not want another public hearing with a continued rehash of the dialogue. Chairman Macias asked if she would support it if it were just with staff and the applicant. Commissioner McPhail said she would if there was a revised set of conditions or not if the rest of the Commission is open to that Commissioner Fletcher said simply that this business is disturbing the neighbors. He noted the activities shown in some of the pictures is not normal activity found in a restaurant but is normal activity for a bar in Cabo(San Lucas)or a spring break promotion. He said he has nothing morally against a promotion but that when people get drunk it is going to be a problem for the neighbors when they leave the bar and go outside. He said the main issue is that the CUP is not for a nightclub or a bar. He said he is not out to close down the business or destroy Mr. Davidson's livelihood. He said if the residents having a right to peaceful enjoyment of their property has to be weighed against an individual's right to run a business that is objectionable or is causing the residents a problem, then the residents will always win. He said it is up to Mr. Davidson to temper what goes on at this location or condition it to what it used to be which was a restaurant with incidental entertainment that serves liquor. He said we do not have revolts and upset citizens coming out on the other businesses. He remarked that we look at one permit at a time. He mentioned that it was disturbing to hear that Mr. Davidson was asked to voluntarily comply with the smoking ordinance and to move ashtrays outside and he refused. He reported that he looked at the website prior to the pictures being presented to the Commission. He said the impression he got from reviewing the site was that the pictures shown represented what one would see at the Margarita Beach Rancho Cucamonga location. He said it was insulting to a normal person's intelligence and that as Commissioner McNiel pointed out, borders on false advertising. He said the hours of operation in the new conditions are a problem for him. He said none of the conditions changes what goes on at the business, the owner will have to change that. He asked for clarification on the hours of operation. Mr. Buller clarified that staffs position is that alcohol would not be served after 11:00 p.m. and that the business would close entirely at midnight. He explained that the restaurant and entertainment could remain until midnight and stop the serving of alcohol at 11:00 p.m. He said this would be something the Commission could dialogue about. He remarked that if it is opened up to Mr. Davidson he would have one idea and the residents would have another. Commissioner Fletcher said he still has some concern about the hours of operation. He remarked that he does not believe it will make a difference. He said the CUP is for a restaurant but essentially what he has is a nightclub. He said his promotions are consistent with a nightclub and that he felt it needed to revert back to the original intent. He expressed concern that the owner was not given an opportunity to discuss the hours. Planning Commission Minutes -16- July 13, 2005 Chairman Macias stated that he does not have an issue with the marketing schemes but that it is an industry standard for a certain type of use and that it is likely to invite that kind of clientele. He said he fully believes that it is a nightclub and not a restaurant. He commented that he believes staff was negligent in their duties in that they did not fully pursue the direction that Planning Commission gave to have dialogue. He commented that his board would not have accepted what he heard tonight. He said that he does not believe that anything would have changed even with dialogue and that if it was opened up for more comment, that we would have heard more of the same. He said he believes staff made a legitimate attempt to mitigate the situation and that the resolution attempts to do that. He said the Commission has 3 months to review the situation and that we can change things if needed at that time. He suggested they act upon the new conditions that they have. He remarked that there is enough community concem to warrant what staff has proposed. He said he fully supports what they have proposed. He asked for a motion. Motion: Moved by McNiel,seconded by McPhail,to adopt Planning Commission Resolution No.s 05-50 and 05-51 modifying the conditions to Conditional Use Permit 88-45 and Entertainment Permit 91-03 as presented. Motion carried by the following vote: AYES: FLETCHER, MACIAS, McNIEL, McPHAIL NOES: STEWART ABSENT: NONE -carried The Planning Commission recessed at 10:08 p.m. and reconvened at 10:15 p.m. 111 D. ENVIRONMENTAL ASSESSMENT AND DEVELOPMENT REVIEW — DRC2004-00981 - CECIL CARNEY—A request to develop eight industrial buildings totaling 48,048 square feet on 3.35 gross acres of land in the General Industrial District(Subarea 2),located on the south side of 9th Street, east of Lion Street—APN: 0209-013-48. Related File: Tentative Parcel Map SUBTPM16899. Staff has prepared a Negative Declaration of environmental impacts for consideration. I. ENVIRONMENTAL ASSESSMENT AND TENTATIVE PARCEL MAP — SUBTPM16899 — CECIL CARNEY-A request to subdivide 3.35 gross acres of land into 8 parcels in the General Industrial District (Subarea 2), located on the south side of 9th Street, east of Lion Street - APN: 0209-013-48. Related File: Development Review DRC2004-00981. Staff has prepared a Negative Declaration of environmental impacts for consideration. Louis LeBlanc, Assistant Planner presented the staff report. Chairman Macias opened the public hearing. Steve Wheatley, 10300 4th Street, Suite 100,stated he is representing the applicant and is available to answer any questions. Hearing and seeing no comment, Chairman Macias closed the public hearing. Motion: Moved by Stewart,seconded by Fletcher,to adopt the resolution approving Development I Review DRC2004-00981 and Tentative Parcel Map SUBTPM16899 as presented with the adoption of a Mitigated Negative Declaration of environmental impacts. Motion carried by the following vote: AYES: FLETCHER, MACIAS, McNIEL, McPHAIL, STEWART NOES: NONE ABSENT: NONE -carried Planning Commission Minutes -17- July 13, 2005 J. TIME EXTENSION FOR TENTATIVE PARCEL MAP SUBTPM15699-BCA DEVELOPMENT- A request for a time extension for a previously approved tentative parcel map to subdivide 248.63 acres into six parcels, part of a larger project which includes a request for a parcel map and two tentative tract maps to subdivide 248.63 acres of land into 632 lots for the purpose of single-family home construction in the Low Residential District (2-4 units per acre) of the Etiwanda North Specific Plan, located north of Wilson Avenue, east of Day Creek Boulevard, and west of Etiwanda Avenue -APN: 0225-071-37,48, 50, and 51 and 0225-081-08, 09, 11, 14, and 15. Related Files: Tentative Tract Maps SUBTT16226 and SUBTT16227. Staff has found the project to be within the scope of the project covered by a prior Environmental Impact Report and a Supplemental Environmental Impact Report both certified by the County of San Bernardino Board of Supervisors in June 1991 and October 1999, respectively and an Initial Study Addendum certified by the City of Rancho Cucamonga in August 2001, and does not raise or create new environmental impacts not already considered in that Environmental Impact Report and Supplemental Environmental Impact Report. K. TIME EXTENSION FOR TENTATIVE TRACT MAP SUBTT16226-BCA DEVELOPMENT-A request for a time extension for a previously approved tentative tract map to subdivide 92.78 acres into 265 lots for single-family home construction.The tract is part of a larger project which includes a request for a parcel map and two tentative tract maps to subdivide 248.63 acres of land into 632 lots for the purpose of single-family home construction in the Low Residential District (2-4 dwelling units per acre) of the Etiwanda North Specific Plan, located north of Wilson Avenue,east of Day Creek Boulevard and west of Etiwanda Avenue-APN:0225-071- 37, 48, and 50 and 0225-081-08 and 11. Related Files: Tentative Tract Map SUBTPM15699 and Tentative Tract Map SUBTT16227. Staff has found the project to be within the scope of the project covered by a prior Environmental Impact Report and a Supplemental Environmental Impact Report both certified by the County of San Bernardino Board of Supervisors in June 1991 and October 1999, respectively and an Initial Study Addendum certified by the City of Rancho Cucamonga in August 2001,and does not raise or create new environmental impacts not already considered in that Environmental Impact Report and Supplemental Environmental Impact Report. L. TIME EXTENSION FOR TENTATIVE TRACT MAP SUBTT16227-BCA DEVELOPMENT-A request for a time extension for a previously approved tentative tract map to subdivide 144.94 acres into 367 lots for the purpose of single-family home construction. The tract is part of a larger project which includes a request for a parcel map and two tentative tract maps to subdivide 248.63 acres of land into 632 lots for the purpose of single family home construction in the Low Residential District(2-4 dwelling units per acre)of the Etiwanda North Specific Plan, located north of Wilson Avenue,east of Day Creek Boulevard and west of Etiwanda Avenue- APN: 0225-071-51 and 0225-081-09, 14, and 15. Related Files: Tentative Tract Maps SUBTPM15699 and SUBTT16226. Staff has found the project to be within the scope of the project covered by a prior Environmental Impact Report and a Supplemental Environmental Impact Report both certified by the County of San Bernardino Board of Supervisors in June 1991 and October 1999, respectively and an Initial Study Addendum certified by the City of Rancho Cucamonga in August 2001,and does not raise or create new environmental impacts not already considered in that Environmental Impact Report and Supplemental Environmental Impact Report. Candyce Burnett, Associate Planner, presented the staff report. Commissioner McNiel clarified that rough grading has already occurred. Planning Commission Minutes -18- July 13, 2005 Ms. Burnett stated that rough grading is occurring and that they have just run out of time to process the final map. She noted that the map is in plan check for review. She remarked that the applicant had to leave the meeting to catch a flight. She reported that on behalf of the applicant, his plans are moving forward, the sewer storm drain construction is slated to begin on Monday and that two neighborhoods are already in negotiation for construction of the project. Chairman Macias closed the public hearing. Motion: Moved by Fletcher,seconded by McNiel,to adopt the resolution approving Development Review DRC2004-00981 and Tentative Parcel Map SUBTPM16899 as presented with the adoption of a Mitigated Negative Declaration of environmental impacts. Motion carried by the following vote: AYES: FLETCHER, MACIAS, McNIEL, McPHAIL, STEWART NOES: NONE ABSENT: NONE carried M. TENTATIVE PARCEL MAP SUBTPM16951 - REINY SCHNEIDER -A request to subdivide 1.28 acre of land into three lots in the Low Residential District (2-4 dwelling units per acre), located at 7510 Hellman Avenue - APN: 0208-162-38. Related file: Tree Removal Permit DRC2005-00394. This action is categorically exempt per Califomia Environmental Quality Act Guidelines Section 15315 Minor Land Divisions. Mike Smith, Assistant Planner, presented the staff report. 1 Chairman Macias opened the public hearing. Reiny Schneider,2036 Winston Court, Upland,said he read the staff report and agrees and concurs with the conditions. He thanked Mike Smith for his fine job and assistance in processing the project. Linda Vaughn stated she currently owns the property until the sale transaction is completed with Mr. Schneider. She wished to thank Mike Smith for his hard work and that he was exceptional. She also acknowledged Vicki Chilicki's help as well. Chairman Macias closed the public hearing. Motion: Moved by Stewart,seconded by McNiel,to adopt the resolution approving Development Review DRC2004-00981 and Tentative Parcel Map SUBTPM16899 as presented with the adoption of a Mitigated Negative Declaration of environmental impacts. Motion carried by the following vote: AYES: FLETCHER, MACIAS, McNIEL, McPHAIL, STEWART NOES: NONE ABSENT: NONE -carried N. TENTATIVE PARCEL MAP SUBTPM16728-DIPONIO-A request to subdivide 3.04 acres of land that is partially in the Very Low(VL)Residential District(about 2.01 acres)and partially in the Flood Control(FC)District(about 0.84 acre)into three parcels, located on the north side of Hillside Road,at Alta Loma Channel-APN: 1074-161-16. This action is categorically exempt per Califomia Environmental Quality Act Guidelines Section 15315 Minor Land Divisions. Mike Smith, Assistant Planner, presented the staff report. Chairman McNiel opened the public hearing. Planning Commission Minutes -19- July 13, 2005 John Diponio, 10585 Hillside Road stated he is the applicant and that he has read the staff report and conditions and concurs with staffs recommendation. Gary Womack, 5366 Evening Canyon Way stated he sent the letter that is noted as Exhibit G on page N-13 of the agenda packet. He said he is not"too bullish" on the flag lot configuration. He encouraged the Commission to be sensitive to the home designs when they are presented for review and to consider the impacts to the homes that already exist in the area. He mentioned that Mr. Diponio is being required to put in step thrus for horses on the flood control property. He said that would encourage people to go onto flood control property in order to continue north on the feeder trail and that would not be appropriate. Brad Buller, City Planner asked Dan James from Engineering to clarify the driveway conditions applied to this project. He said it appears that the condition may limit it to one onto Hillside but the condition implies multiple driveways. Dan James,Senior Civil Engineer,stated that on page N-32 of the agenda packet,condition 1,b,he stated there is a single driveway serving all three lots. Mr. Buller asked if under item 2,a, he asked if it is just one drive approach. Mr.James said the's'could be removed but it is not a discrepancy,they are specifically conditioned for one driveway. Mr. Buller asked if the location of the driveway along Hillside is determined yet. Mr. James said that on the tentative map Parcel 1 and Parcel 2 flag portions are reserved (60 feet) for access easement. He added that when the house product is submitted, they would determine the exact location. Dan Coleman, Principal Planner said that he was involved with working with flood control on securing that easement. He commented that there is a crazy"patchwork quilt" layout of property ownership and that the Flood Control District does not own a great majority of the property. He said for that reason, the City did not secure permission because we would be dealing with hundreds of owners to secure rights for the easement. He commented that he was surprised to see a recommendation for horse step-thru and gated access to that channel and that Mr. Womack is correct in that we do not have an agreement for joint use or right of way for a trail. Commissioner McNiel asked if he is suggesting that recommendation be dropped. Mr. Coleman said yes. Mr. Buller referred to Planning Condition No. 6 and Engineering Condition 2,c. Mr. Buller asked if this was research on the ownership by the Trails Committee. He suggested that they delete it but make a provision upon securing the easement for trail purposes through flood control that the applicant be required to pursue an agreement with flood control for the easement. Mr. Smith stated that the applicant was directed by the Trail Committee to pursue an agreement with County Flood Control and there was no research done on the ownership. Mr. Buller asked what the responsibility of the owner is if they cannot reach an agreement. Mr. Smith said he would come back to us if he is not able to do it. Planning Commission Minutes -20- July 13, 2005 Kevin Ennis,Assistant City Attorney explained that the Subdivision Map Act provides that if there is an improvement condition requiring the applicant to obtain off site ownership of the property, then they have to pursue that and if they subsequently fail to acquire that within a certain time period, then they notify the City and then the City has a time period to acquire it and if they don't or cannot acquire it, then the project can proceed without modification. Mr. Coleman pointed out that there is an existing trail in Mr. Womack's track that parallels the channel and eventually the two trails merge in the basin to the north. He said this is not a problem at this time. He said installing the gate at a later time is not a large expense. Mr. Buller noted that a local trail is for the members of that tract, but that this trail would have been more regional as to its use. He suggested they leave the conditions as they are. Mr. James noted that there are two existing driveways in the flood control area. He said knowing that,that if those driveways need improvement,then there would in fact be more than one driveway and therefore the's'should be left on Condition 2,a. He clarified that there would be one approach for residential and possibly multiple approaches for the flood control access. Chairman Macias closed the public hearing. Motion: Moved by McNiel, seconded by Fletcher, to adopt the resolution approving Tentative Parcel Map SUBTPM16728 as presented. Motion carried by the following vote: AYES: FLETCHER; MACIAS, McNIEL, McPHAIL, STEWART NOES: NONE ABSENT: NONE -carried PUBLIC COMMENTS No further comment was made. **** ADJOURNMENT Motion: Moved by McNiel, seconded by Fletcher, carried 5-0, to adjoum. The Planning Commission adjoumed at 10:45 p.m. Respectfully submitted, rad Secretary Approved: 1 Planning Commission Minutes -21- July 13, 2005