HomeMy WebLinkAboutPC Min 1994-05-04
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CITY OF SEAL BEACH PLANNING COMMISSION
MEETING AGENDA of MAY 4, 1994
7:30 P.M. * City Council Chambers
211 Eighth Street, Seal Beach, CA
Next Resolution: #94-14
1.
PLEDGE OF ALLEGIANCE
II.
ROLL CALL
III.
APPROVAL OF AGENDA
By Motion of the Planning Commission, this is the time to:
(1) Notify the public of any changes to the agenda;
(2) Rearrange the order of the agenda; and/or
(3) Provide an opportunity for any memher of the Planning Commission, staff, or public to
request an item be removed from the Consent Calendar for separate action.
IV.
ORAL COMMUNICATIONS
At this time, members of the public may address the Planning Commission regarding any items within
the subject matter jurisdiction of the Planning commission, provided that NO action or discussion may
be undertaken hy the Planning Commission unless otherwise authorized by law.
V.
CONSENT CALENDAR
Items on the Consent Calendar are considered to be routine and are enacted hy one motion unless prior
to enactment, a member of the Planning commission, staff or the public requests that a specific item
be removed from Consent Calendar for separate action.
1. Approve Minutes of April 20, 1994
2. Approve Resolution No. 94-10; Minor Plan Review #94-2; 218 4th St.
3. Approve Resolution No. 94-11; Variance #94-2; 1603 Seal Way.
4. Approve Resolution No. 94-12; CUP 94-2; 1603 Seal Way.
5. Approve Resolution No. 94-13; Height Variation #94-2; 1603 Seal Way
The City of Seal Beach complies with the Americans With Disabilities Act of 1990.
If you require special assistance to attend or participate in this meeting, please telephone the City Clerk's
Office at (310) 431-2527 at least 48 hours prior to the meeting.
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Page 2 - City of Seal Beach Planning COl11nlls~ion Agenda of May 4. 1994
6.
Preview to the 1994 Air Quality Management Plan,
South Coast Air Quality Management District.
Receive and File:
7.
Receive and File:
AB 2742 - Regulation at Liquor Stores
8.
Receive and File:
AB 2897 - Overconcentration of Liquor Licenses
9.
Receive and File:
SB 1272 - SCAQMD Governing Board
VII. SCHEDULED MATTERS
10. CEQA Study Session
11. Commission Meeting Format Policy Discussion
a. Brown Act Amendments Regarding Public Participation at
Meetings, Discussion of Non-Agenda Items and Recording of
Meetings.
VII. PUBLIC HEARINGS
12.
Variance #94-1
Address:
Business:
Applicant:
Property Owner:
Request:
345 Tenth Street
Water Safe Swim School
Ginny Flahive
Ginny Flahive
After-the-fact approval for canopy over
swimming pool which does not meet
required setbacks.
VIII. STAFF CONCERNS
IX. COMMISSION CONCERNS
X. ADJOURNMENT
1994 AGENDA FORECAST
The City of Seal Beach complies with the Americans With Disabilities Act of 1990.
If you require special assistance to attend or participate in this meeting, please telephone the City Clerk's
Office at (310) 431-2527 at least 48 hours pnor to the meeting.
Page 3 - City of Seal Beach Planning Commission Agenda of May 4. 1994
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MAY 18
CITY DEADLINE: APR 13
Plan Review #94-1: 1303 Seal Way/Freimuth's remodel.
Plan Review #94-4: 200/202 15th St./2nd floor deck.
JUN 08
CITY DEADLINE: MAY 04
CUP #92-19: Clancy's @ 12 mos/indefinite extension
ZC #94-2: 1600 PCR (Rum Runners Property)
JUN 22
CITY DEADLINE: MAY 18
ZC/GPA #94-1: 99/101 Marina Drive (O-E to LDR)
JUL 06
CITY DEADLINE: JUN 01
Election of Chairman & Vice Chairman
CUP #92-2/101 Main/SeaSide Grill/Review hours extension.
JUL 20 CITY DEADLINE: JUN 15
AUa 03 CITY DEADLINE: JUN 29
CUP #92-26/review of Tortilla Beach for receipt of ABC lie. & conditions.
A UG 17 CITY DEADLINE: JUL 13
. SEP 07 CITY DEADLINE: AUO 03
SEP 21 CITY DEADLINE: AVO I?
OCT 05 CITY DEADLINE: AUO 31
OCT 19 CITY DEADLINE: SEP 14
NOV 09 CITY DEADLINE: OCT 05
NOV 23 CITY DEADLINE: OCT 19
DEC (y] CITY DEADL1NE; NOV 02
CUP #93-13/Papillon's @ 12 mos.lindef. exten. of entertainment.
:DEe 21 CITY DEADLLNE: NOV 16
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The City of Seal Beach complies with the Americans With Disabilities Act of 1990.
If you require special assistance to attend or particIpate in this meeting, please telephone the City Clerk's
Office at (310) 431-2527 at least 48 hours prior to the meeting.
Page 4 - City of Seal Beach Planning COll1l1l1~~ioll Agenda of May 4. 1994
. STAFF REPORTS PENDING: NOT AGENDIZED
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ZTA #92-2
Entertainment Cafes
ACTION: City-wide policy statement on entertainment.
STATUS: Pending City Manager's input.
1995
IAN CUP #92-13/143 Main/Papillon's/12 mos entertainment
CUP #92-25/1400 PCR/Glider Inn/indefinite extension
FEB
MAR
CUP #94-1/600 Marina/Radisson 12 mos. ABC
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The CIty of Seal Beach complies with the Americans With Disabilities Act of 1990.
If you require special assistance to attend or participate in this meeting, please telephone the City Clerk's
Office at (310) 431-2527 at least 48 hours prior to the meeting.
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CITY OF SEAL BEACH PLANNING COMMISSION
MINUTES of MAY 4, 1994
The City of Seal Beach Planning Commission met in regular sesion at 7:37 p.m. with Vice
Chairman Soukup calling the meting to order with the Salute to the Flag.
ROLL CALL
Present:
Absent:
Also
Present:
Vice Chairman Soukup
Commissioners Law, Campbell, Sharp
Chairman Dahlman
Director Whittenberg
Department of Development Services:
Craig Steele, Assistant City Attorney
Barry Curtis, Administrative Assistant
Joan Fillmann, Executive Secretary
APPROV AL OF AGENDA
MOTION by Campbell; SECOND by Sharp to approve the Planning
Commission Agenda of May 5, 1994 as presented.
MOTION CARRIED:
A YES:
ABSENT:
4-0-1
Campbell, Sharp, Soukup, Law
Dahlman
ORAL COMMUNICATIONS
There were no oral communications from the audience.
CONSENT CALENDAR
MOTION by Sharp; SECOND by Law to approve the Consent Calendar:
1. Approve Minutes of April 20, 1994
2. Approve Resolution No. 94-10; Minor Plan Review #94-2; 218 4th St.
3. Approve Resolution No. 94-11; Variance #94-2; 1603 Seal Way.
4. Approve Resolution No. 94-12; CUP 94-2; 1603 Seal Way.
5.
Approve Resolution No. 94-13; Height Variation #94-2; 1603 Seal Way
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Page 2 - CITY OF SEAL BEACH * Plannmg COIIUIIISSJOlI Mmules of May 4, 1994
6. Receive and File: Preview to the 1994 Air Quality Management
Plan, South Coast Air Quality Management
Dish'ict .
7. Receive and File: AB 2742 - Regulation at Liquor Stores
8. Receive and File: AB 2897 - Overconcentration of Liquor Licenses
9. Receive and File: SB 1272 - SCAQMD Governing Board
MOTION CARRIED:
A YES:
ABSENT:
4-0-1
Campbell, Sharp, Law, Soukup
Dahlman
SCHEDULED MATTERS
10. CEQA Study Session
Assistant City Attorney Steele spoke to the Planning Commission, explaining that
one month ago, the Commission had a Study Session on a number of statutes and
procedures, the Brown Act, the Political Reform Act, various due process issues.
As it got late into the evening, staff thought it prudent to break up the
presentation and cover the California Environmental Quality Act tonight. He
provided a broad over-view of CEQA, referencing an enclosure entitled" A Brief
Summary of CEQA" that Mr. Steele and Mr. Barrow prepared which outlines the
procedures, the mechanism of how CEQA works. He covered five topics:
1. CEQA Policy.
2. To What Projects CEQA Applies
3. The Determination of Negative Declarations, Mitigated
Negative Declaration, EIR.
4. Contents of an EIR.
5. Planning Commissioner's Evaluation Process.
The State legislature has set out broad policy goals within CEQA and they were
codified and placed in the Public Resources Code because of their importance.
The State legislature emphasized approximately fourteen separate environmental
policies and they impact virtually everything that comes before a Planning
Commission. The statutory purpose of CEQA is to forbid public agencies from
approving projects with significant adverse impacts on the environment when
feasible alternatives or feasible mitigation measures can substantially lessen those
impacts.
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Pagc 3 - CITY OF SEAL llEACH · l'lnnlllllg c..:OI11llll~\IOn Mmutc\ of Muy 4. 1994
This is different from Federal environmental law , National Environmental Policy
Act (NEPA). NEPA has an impact in Seal Beach because there's a lot of Federal
property here. There is interplay and conflict between NEPA and CEQA. The
Federal government has created a balancing act between environmental
considerations and economic considerations and is much less strict than the State
law.
CEQA applies to discretionary projects proposed to be carried out or approved
by public agencies. The intent factor says that as soon as an agency, or the City,
is committing itself to a definite course of action, that's when that course of
action becomes a project for the purposes of CEQA and environmental review.
The project is the entire proposed action. CEQA requires that you look at the
whole of a project and examine the environmental impacts of the entire plan.
Agencies or developers cannot break projects apart to lessen the cumulative
environmental impacts.
The concept of a project under CEQA is sweeping so the courts and State
legislature have carved out exceptions, which are considered non-projects or fall
into categories which are termed "categorical exemptions". For example, a minor
addition, a minor alteration to a house, a Minor Plan Review; there are
approximately 25 categorical exemptions. Sometimes legislative acts require
CEQA review --- such as the adoption of Ordinances, General Plans, Specific
Plans. There might not be a specific project, such as a building going up, but
that Ordinance has the potential to affect the environment. Ministerial actions are
exempt from CEQA review. For example, the approval of a building permit.
The second step for staff is to prepare an Initial Study, which is a checklist.
CEQA guidelines ask will this project affect a number of different issues. Staff,
with the assistance of other agencies (Fire Department, waste management
agencies, Water Department etc.), determines if there are going to be any
significant environmental impacts from the proposal. If staff feels there are going
to be significant impacts, they have the option to go straight to an EIR. Impacts
can exist which can be easily mitigated at the Initial Study stage. At the end of
the Initial Study one of two things can happen: (1) a Negative Declaration will
be prepared to state there will be no significant environmental impacts because
of the project or (2) the Commission may disagree, which would be the first
significant decision-making step in the CEQA process. The Commission would
state they cannot approve a Negative Declaration because the project will cause
significant environmental impacts and an EIR is needed. It's a grey area and
causes the most controversy and litigation. When a Negative Declaration comes
before the Planning Commission, the Commission must look at all the evidence
and determine whether the evidence in the Record supports a finding that there's
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Page 4 - CITY OF SEAL BEACH · )'Ianlllllg COIl1I1I1\~IOn MlIlutcs or M:IY 4. 1994
a "fair arguement" that there may be substantial environmental impacts from the
project. CEQA always favors more information.
What is the level of evidence required to support that "fair arguement"? There
has to be credible evidence that there might be environmental impacts. There
must be credible evidence that staff hasn't considered everything and mitigated
it. Speculation, fears, unfounded desires and resident's controversies without
backup, substantiated information is not credible evidence. You are called upon
to be arbitrators of the facts to determine what is credible evidence.
Commissioner Soukup asked if the Commission is looking at a proposal with
controversial impacts and the public record had not addressed it, yet a public
person made a comment that intuitively there seems to be a problem there, can
the Commission use its intuititve processes? Mr. Steele said CEQA always
favors more information. If an issue arises at a Public Hearing and staff just has
not addressed it, the Commission can refer that issue back to staff, requesting
additional information. CEQA provides for a recirculation period. If additional
information comes forward during the course of the environmental review, CEQA
requires that that information be incorporated into the environmental
documentation and it be re-circulated for public review and comment. The
standard for determining whether a Negative Declaration is appropriate is not
whether there are going to be significant environmental impacts but whether the
evidence supports a "fair arguement" that there may be environmental impacts.
The preparation for an Environmental Impact Report (EIR) is very time
consuming and very costly. Several consultants spend time putting an EIR
together in sections, the documents go through a number of drafts, the EIR goes
out for public comment to various agencies. The lead agency is required then to
respond to those comments. The required contents of an EIR are:
1. Project Summary: What is the idea or course of action the agency
is considering.
2. Description of Environmental Setting: Where's the property,
(maps, diagrams), description of the environment which would be
affected by the project, detailed description of significant
environmental impacts, detailed description of the unavoidable
environmental effects, description of any mitigation measures
imposed.
3. Discussion of Project Alternatives: The EIR consultant is asked
to come up with a set of alternatives to the actual project
proposed, including an alternative of no project, some off-site
projects, a project of higher density or lower density.
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Page 5 - CITY OF SEAL BEACH · Plannmg COlllml~'IOII MlI\ule~ of Muy 4. 1994
4. Description of Significant, Irreversable Changes [in the
environment caused by the project. Growth-inducing impacts.
Effects that the agency found not to be significant].
5. List of Persons and Agencies [consulted during the EIR process].
6. The final EIR will contain the comments and responses.
7. Description of Cumulative Impacts.
8. Description of Economic and Social Impacts.
Once the EIR is complted, there are lengthy Public Hearings with testimony on
both sides. The decision-making body must make a number of findings supported
by substantial evidence on the Record. Those findings are either findings of no
significant environmental impacts or that the significant impacts have been
adequately mitigated. If the Commission finds there are significant impacts which
are not mitigated the choice is either to deny the project or to make some other
findings which justify approving the project. Those findings include describing
how the City plans to mitigate as much as possible the negative project effects,
a description of how some of those measures might be the responsibility of
another agency or another city, or a finding that the full range of mitigation
measures which would be required to make sure this project didn't have
significant environmental impacts would be economically or socially unfeasible.
The last finding, for approval of a project on which there are still significant
effects, would require a statement of Overriding Considerations. The
Commission would have balanced the competing factors, determined the
mitigation measures have been imposed as far as is possible and whatever
significant environmental impacts remaining, are outweighed by the potential
benefit to the City. These findings are very difficult to make and are almost
always challenged by one side or the other.
Commissioner Soukup asked if the Commission should require an EIR if there are
mitigation measures being taken in a Negative Declaration? Mr. Steele said that
if, in the Initial Study, a significant impact is identified, the option is to impose
a mitigation measure at that stage which will lessen that impact to a "level of
insignificance". CEQA allows for that mitigation measure to be imposed at that
point. The Negative Declaration can be approved if the Commission agrees the
mitigation measures are satisfactory.
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Page 6 - CITY OF SEAL BEACH · Planning ('OI11I11IH~lon Ml11utcs of May 4. 1994
11.
Commission Meeting Format Policy Discussion
a. Brown Act Amendments Regarding Public Participation at
Meetings, Discussion of Non-Agenda Items and Recording of
Meetings.
Staff Report
Mr. Steele presented a memorandum and City Attorney letter, dated April 19,
1994, to the City Council. [Memorandum and letter on file in the Planning
Department]. He noted the Commission indicated its intent to discuss and
perhaps adopt a policy regarding meeting format issues. The letter states the old
Brown Act required an agency to set aside time for public comment at meetings.
This has not changed except for new Brown Act language which allows the
agency to determine whether the public comment period is going to be before the
agenda items come up for discussion. The City Attorney's Office has determined
the Brown Act allows for one public comment period at the beginning of the
agenda and allows for comments on all non-Public Hearing items and items that
are not on the agenda but are within the subject matter jurisdiction of the
Planning Commission. The Brown Act specifically allows each body to make its
own rules with regard to public participation --- time limits, sign-in sheets, rules
of decorum, rules of procedure. He added the Brown Act now additionally
requires speakers cannot be limited based on their criticism of the decision-
makers, policies or actions.
Additionally, regarding the former agenda category entitled "Commission
Concerns", the City Attorney's Office reads the Brown Act to mean that if the
Planning Commissioners wish to have a substantive discussion among themselves
that substantive discussion must be agendized. Also, comments from the public
cannot be aUowed to engender a debate among the Commissioners. The clean-up
legislation clarified this, to provide that a staff member can briefly respond to an
audience question. Mr. Steele reads the legislation to say that if a question is
raised from the audience, staff can refer that audience member to the appropriate
staff person to have the question answered. If a brief answer is possible, on the
Record, the answer can be made. Members of the Planning Commission can
direct staff to put the public's concerned testimony on a future agenda.
Commissioner Sharp asked if a member of the public can ask, ahead of time, to
have an item agendiezed? Mr. Steele said the City of Seal Beach does not have
a specific rule on how items are added to the agenda. Absent a specific rule, Mr.
Steele said no. A member of the public has the right to ask the Commission to
have something agendized or to suggest to Director Whittenberg that something
be addressed at a meeting. But the normal rule, absent clarification, is that this
body is the authority for placing items on the agenda.
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Page 7 - CITY OF SEAL BEACH · P1:lIlmng COIllIll.ShlOO MlIlutc, of May 4, 1994
Commissioner Law asked what recourse there would be if a Commissioner asked
for something to be placed on the agenda and it wasn't? Mr. Steele said a short
answer would be "Not much actually". If it's not on the agenda, and you can't
make the finding that the need to take action arose between the time the agenda
was posted and the time of the meeting (72 hour period), then the item cannot be
discussed. If it's a mistake or inadvertance from staff, that still would not allow
the Commission out of that Brown Act requirement. Commissioner Law said she
wanted to elaborate on this subject, she called ten days in advance, and it wasn't
agendized. Mr. Steele said she could discuss that now because Commission
Meeting Format Policy is on tonight's agenda.
Commissioner Law said meetings in the future may be hours and hours long. She
thought it would be a better policy to have those meetings end by 12:30 a.m. But
2:00 a.m. or 4:00 a.m. is too late. She indicated she felt it's important all the
people get to express their views but something has to be done, suggesting
another meeting be scheduled, perhaps for the following day, although that would
cost more. Commissioner Campbell said 12:30 a.m. was too late. Commissioner
Law suggested the Notices should indicate that this meeting may be continued to
a future date. Commissioner Sharp said he was on the Commission during the
Mola hearings and was present at late night meetings. He indicated the City
Council made rules and regulations that the meetings would stop at a certain time
but when you actually got into the middle of a meeting, one of the
Commissioners or Council Members would decide that we shouldn't have that
rule, and they would make a motion and pass it and the meeting would be run on.
He said we would have to have something iron clad, and something that would
be stuck to. Commissioner Campbell asked if the Planning Commission could
have a definite time limit rule without the City Council's having a definite time
limit for their meetings? Mr. Steele said the City Attorney's Office feels the
Planning Commission is free to structure its own meetings. If the City Council
were to adopt guidelines for all City meetings, the Commission would be required
to follow that rule. At present, the City Council follows the five minute per
spearker limit but there is no time limit on the length of the meeting. The
Planning Commission could determine to place a time limit on their meetings
through adoption of a Resolution. Mr. Steele felt there is not an iron clad rule
to end meetings on time, but rather a self-policing policy. Commissioner Sharp
said the City Council has an 11 :00 p.m. time to end meetings and he is not aware
that they have rescinded it. Mr. Steele said he thought the Council adopted that
limit by Minute Order but never formalized the requirement by Resolution. A
Resolution is needed so the City can have something to post to inform the public
what the time limits are. Staff could also be requested, by the Commission, to
provide in its Notices of Public Hearings, that a particular hearing might be
continued over for several meetings. Most likely the Notice could not pin it
down. Commissioner Campbell suggested that if a time limit were set, and it
could be ascertained that the item could be finished in twenty minutes then it may
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Page 8 - CITY OF SEAL BEACH · Plannmg ComlluqqlOll Mmulcs or May 4. 1994
be alright to finish that one item with, for example, a thirty minute grace period.
But if a certain topic could take hours and hours the Commission may have to cut
off at their time limit. She noted that when meetings run that late and people
want to speak, the public gives up and goes home because they get worn out.
That's not fair to the public, they have a right to be heard. Commissioner Law
agreed that the public does have a right to be heard but felt 4:00 a.m. was just
too late. Vice Chairman Soukup suggested that this item be agendized with the
full Commission present to discuss it. He felt there would be a trade off as to
what's in the public's best interest and what's in the Commission's be interest.
If the Commission doesn't want to hold a meeting because of late hours that
would not be in the best interest of the public. He felt the Commission should
be more altruistic in their decision making on meetings. Commissioner Campbell
suggested the Commission could not be truly effective to the public if the
meetings go to the wee morning hours and they are exhausttd. Vice Chairman
Soukup said the public should be heard and this is their public forum.
Additionally, he asked what happens to the remaining part of the agenda if a
meeting is terminated? Mr. Steele, referencing option #2, which says that at,
say, 11:30 p.m., a vote is required for the rest of that agenda. Which means
continuing that to the next day or another set date. It's the Commission's option
to continue the agenda to another date and time certain, as long as you announce
that date and time certain at the time the continuance is made. The Brown Act
requires staff to post notices and post a new agenda. If a Public Hearing is
opened at one meeting, it can be continued without another Notice.
Commissioner Soukup asked if the Planning Commission meetings could be
started at 5:00 p.m. instead of 7:30 p.m.? Mr. Steele said the continued meeting
must be continued to a date and time certain. It would be alright to begin at 5:00
p.m. if it's announced at the time it's continued. Mr. Steele said there is no
reason why a meeting could not be continued, for example, to 3:00 p.m. two
weeks hence. However, at 7:30 p.m. the next regularly scheduled Planning
Commission meeting would have to be convened, as required by law.
Commissioner Sharp clarified by stating that the Commissioners know the Bixby
project hearings will begin next month and they wi11 be long meetings. The
question is, can the Commission schedule their regular meetings at 5:00 p.m. or
5:30 p.m. and start the meetings early? Mr. Steele said yes, as long as the
Commission meeting time was changed by resolution, rescinding the prior
resolution on this subject. The change would have to be made in time for the
required Notices. Commissioner Campbell indicated Chairman Dahlman may
have problems re-arranging his medical practice to arrive by 5:00 p.m.
Commissioner Law suggested it may be preferable to Chairman Dahlman to re-
arrange his schedule than to staying till early morning hours. Commissioner
Campbell asked if the Commissioners were to raise the issues themselves or wi11
the City Attorney's Office do that? Mr. Steele recommended against changing
the regularly scheduled meeting time of 7:30 p.m., prefering the Commission to
leave their options open to schedule more than one meeting as the need arises.
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Page 9 - CITY OF SEAL BEACH · Planlllng COlllllll~SIOJ1 MlIlutc~ of May 4, 1994
Staff would prefer the Commission give staff the type of options they would like
to see in a resolution and staff will draft a resolution and bring it back within two
weeks. Commissioner Campbell suggested she would like to see a meeting time
limit of 11:00 p.m. be set with the provision of a sixty minute grace period. If
the business can't be completed within that grace period, the grace period is lost.
Commissioner Sharp suggested no new business be started after 11 :00 p. m., the
meeting closes at 12:00 midnight and anything on the agenda will have to be
carried over. Mr. Steele said the City Attorney's Office can take the sentiments
expressed by the Planning Commissioners and work that into resolutions to bring
them back to the Commission. Vice Chairman Soukup said the Commission
should know what the availability of the Council Chambers is, so they know what
and how to schedule. Commissioner Campbell asked if the Planning Commission
could bump another meeting. Mr. Curtis said it's likely that would be the case.
The Planning Commission would bump someone and they would be asked to
reconvene elsewhere. Generally, Thursdays and Fridays are open. Vice
Chairman Soukup asked for this to be addressed at the next meeting.
Commissioners Campbell and Law asked to limit the speakers to five minutes.
***
PUBLIC HEARINGS
12.
Variance #94-1
Add.oess:
Business:
Applicant:
Property Owner:
345 Tenth Street
Water Safe Swim School
Ginny Flahive
Ginny Flahive
Staff Report
Mr. Curtis delivered the staff report. [Staff report on file in the Planning
Department]. The applicant, Ginny Flahive, requests after-the-fact approval of
a canopy over a swimming pool which does not meet required setbacks. Mr.
Curtis indicated that staff's recommendation has been changed from "Staff
recommends denial of Variance 94-1" to "Pleasure of the Planning Commission"
and that one additional Condition of Approval be set in place:
10. In the event the property is no longer used as a swim school, the
tent will be removed immtediately.
Commission Comments on Staff Report
Judy Hutain. Senior Fire Safety Specialist. Orange County Fire Department
Ms. Hutain said a tent is meant to be a temporary structure, such as a circus,
special events. The Orange County Fire Department's (OCFD) concerns are that
when a temporary structure is made permanent, which is what is intended here,
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Page 10 - CITY OF SEAL BEACH * PL1nmng COlllllllSSlml Mmutcs of May 4, 1994
OCFD has life-safety concerns. The OCFD holds the right to issue a permit for
a tent or a temporary structure. OCFD has concerns of this tent's structural
stability to withstand the elements. OCFD has been on site in the past and the
tent does appear to be a substantial structure. But to date OCFD has no
documentation specifications on the tent and specifically, the membrane fabric
that covers the tent. In the State of California, any type of public assembly,
including this tent, is required to have a State Fire Marshall listing for flame
retardancy. Since OCFD does not have that information at this time, they cannot
evaluate its correctness. OCFD does not want smoking in a tent and the swim
school has a no smoking policy. Portable fire extinguishers are a normal fire
requirement. Most critical to OCFD is the exiting. The way the tent is now,
there are aisles along each side of the deck which could be utilized for exiting.
The problem at the swim school, which she has identified to the swim school a
number of times a year ago, there are always deck chairs along the deck. The
chairs are moveable but if the chairs are moved she was not sure where the
spectators would sit. The requirement for property line setbacks is not met
although the tent arches. OCFD does not want to provide exposure problems to
the school's neighbors. She felt this tent is made of acceptable material if the
swim school can meet the other requirements --- exiting, setback, fire proofing.
Vice Chairman Soukup, indicating he was digressing, noted there are large
strcutrues in the City of Los Angeles which are built around a fire pond in the
lobby. He asked Ms. Hutain how OCFD gives credit to this swim school for the
presence of the pool? Ms. Hutain asked him to explain what a fire pond was?
Commissioner Soukup explained that OCFD has its rules and regulations, of
which a strict reading would bring you to one point. The swim school has an
abundance of water in its pool and it's a humid area. Ms. Hutain said there's a
life safety factor here --- inadequate exiting. The OCFD is not overly concerned
with what goes on inside a structure as long as it's within what's prescribed by
the law and the codes. OCFD is most concerned with how those people would
exit. The pool water really does not enter into their concerns, it's the exiting
pattern that needs to be maintained. Ms. Hutain said this is another structure
which is almost totally enclosed. It has the potential to be enclosed on both ends.
It can be open on the ends but it is not as if it is open on the ends. An aisle
width on each side must be provided to allow for emergency exiting.
Vice Chairman Soukup suggested tear-away velcro door fastners with ladders
built into the wall every ten feet. He asked if that would mitigate the exiting
problems? Ms. Hutain said no because they need to provide "reasonable exit"
and that would not be considered "reasonable exit" for the public. It might be
alright in a residential setting.
Mr. Steele suggested the Commission needs to separate the life safety issues from
the land use issues because the OCFD is charged with making the life safety
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Page 11 - CITY OF SEAL BEACH · Planmng COlIIlIIl\&loo MUllllc, of May 4. 1994
determinations. Whether the OCFD issues their permit is separate from the
Commissions' consideration of the Variance. He suggested a Public Hearing
might be in order to allow the applicant to participate in the discussion.
Public Hearing
Dave Bartlett. Dave Bartlett Associates. 6082 Jade Circle. Huntington Beach. CA
Mr. Bartlett stated he is assisting the swim school owners on this Variance. He
presented Ms. Hutain with a manufacturer's specification that he received today.
It does provide for a Class I fire rating and a wind load factor of 65 - 100 MPH.
The structure is built to withstand severe wind and rain storms. He indicated that
staff's Conditions of Approval include meeting OCFD requirements. The
applicants accept all ten (10) staff Conditions of Approval. He stated the
applicants have gone through al1 the Conditions of Approval and have made
"substantial progress" in satisfying OCFD concerns. Exiting is a major concern
and the owners are very well aware of this concern. It involves making sure the
aisle widths are completely clear of the fold up chairs. It ends up being a
procedural operation where the parents want to get close to their children while
the children are receiving instruction. The need for the aisles to stay clear needs
to be better enforced. "The owners are working on that on a day-to-day basis".
Regarding the Variance, a hardship does exist because of the substandard lot
width. The fact the lot abuts residential property triggers the 3' setback
requirement which exaccerbates the substandard lot width, making it potentially
unuseable. The tent structure does not arch on the same plain of the property line
and is not the same situation as if you were building a commercial building on the
property line and up two stories. There are no private property issues,
encroachments or easements. The tent reduces incidential noise substantially,
shields the swim instructors and customers from the elements. The tent is a
financial necessity.
Commissioner Sharp said a note from the Fire Marshall says the tent went down
during a rain storm and was replaced. He asked Mr. Bartlett to explain how this
tent wi11 withstand more than that tent. Mr. Bartlett said it is his understanding
that this new tent is a completely different structure. Its specifications indicate
it is built in Vancouver and it's made to withstand high winds, rain and a snow
storm. The other structure he is not familiar with, not being involved with it.
Commissioner Sharp said he was bothered by the fact that this tent was put up
during a time when a City Code enforcement action was taking place against the
property. Mr. Bartlett said he was not aware of that situation. The owners
would have to discuss when the tent went up.
Commissioner Campbel1 asked what is the expected life of this tent? Mr. Bartlett
said he was not sure.
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Page 12 - CITY OF SEAL BEACH · PL'II1mng COI11I11IS~lon MlOules of May 4, 1994
Jim Flahive. Husband of Ginny Flahive. Applicant
Mr. Flahive apologized for the length of time this matter has drawn out. It was
not their intention to do this but they had another consultant working with them
and he wasn't as professional as Mr. Bartlett is.
The tent is expected to last ten to fifteen years. When they took over the swim
school they did not know there was regulation against tents or enclosures. The
first tent went up in 1988, their initial winter. He said he had a 1988 newspaper
article stating they were going to put the tent up, so they were not doing anything
covertly. That tent was up for two years. The second tent was up for two years
(1990 - 1992) and came down in a February rain storm. He said they were never
contacted regarding City regulations on the previous two tents. The third tent is
four feet (4') taller than the previous two tents. The block walls are eight feet
(8') high and this tent is twelve feet (12') and can be seen. Regarding the
OCFD regulations, people have told them "We would have no problem re-doing
any of the exit difficulties and the signage or anything like that for no smoking
or any of the other trouble with that. That will be easy".
Vice Chairman Soukup said, for the Record, that his daughter went to the Water
Safe Swim School. He recalled going there once and being disapponted they
could not sit on the aisles because of a school rule. This is evidence that the
Flahive's have been diligent in obeying OCFD requlations. He asked if this
seating will be removed to take away the temptation? Mr. Flahive said the school
has 8 - 10 chairs at the end of the pool. Mr. Flahive said parents of small
children will sit on the ground, to be on the deck next to their children. There
are no chairs in the aisles. He said he could tighten this up by making sure the
manager enforces it. He would agree to posting signs. He suggested flip up
seating, such as is found in movies, might work. They are checking this
possibility out now.
Vice Chairman Soukup noted the school has a small room which is used now as
a retail shop. He asked if this could be modified to be a viewing room? Mr.
Flahive said this could be done, using two or three tiers of bleachers at the end
of the pool, so the parents could look into the pool area.
Commissioner Campbell asked about the tent's fammibility and what time frame
Mr. Flahive was looking at for compliance? Vice Chairman Soukup said the
applicant had submitted a Class 1 fire rating tonight. Commissioner Campbell
acknowledged that but asked about the other items which are not complied with.
Mr. Flahive said he expected 2 to 4 weeks for full compliance on everything.
Commissioner Campbell asked if the gate is unlocked during swim school hours
and can it be used for emergency exiting? Mr. Flahive said yes. He said he felt
only a teacher using the pool would use that exit. Mr. Flahive said a fire would
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Page 13 - CITY or SEAL BEACH · Planmng COIlUlIISSlO1l Mmulcs or May 4. 1994
be an unlikely emergency because of the amount of water and dampness in the
vicinity. Mr. Flahive said he didn't know what another emergency would be.
But when the weather is inclement, with strong winds and rain, people don't
come for swim lessons.
Commissioner Campbell said she visited the swim school today and when she saw
the tent it was not huge, she felt it is low-key. She felt the fact that the tent
shields the instructors and the pupils is good. She asked about the odor of
chlorine and asked if there is any way to increase the ventilation? Mr. Flahive
said exhaust fans could be obtained but he has had no complaints about this odor.
Vice Chairman Soukup asked if there had been complaints of children with
chlorine nausea? Mr. Flahive said no. Mr. Steele said the Heatlh Department
and Fire Department monitor these issues.
Vice Chairman Soukup asked Mr. Flahive if he wanted to add any evidence to
the Record regarding his acquisition of the swim school and the fact that the
previous school owner may have "gone belly up" because of the inability to
provide year round teaching. Mr. Flahive said he didn't know if they went belly
up. Marcia Kleghorn, the previous owner, was ill and that's why she sold the
swim school. Ms. Kleghorn stated she didn't run the school in the winter
because no one would come. Mr. Flahive said he has had a swim school since
1978 and his experience has been that you can't employ anyone but yourself in
the winter because of the weather changes. You'd be paying inspectors to hang
around as people don't show up.
Mr. Flahive presented the Commission with a petition in support of the tent;
attached.
Commissioner Campbell, noting this is a tent with a 10 - 15 year life, asked what
would be involved with a permanent structure? Mr. Flahive said this 24' x 65'
tent cost $15,000; top of the line in its field. He felt a building would cost
$50,000 to $100,000. Vice Chairman Soukup said the advantage of this structure
is that it can be disassembled in two days, even though it seems permanent.
Vice Chairman Soukup asked if any of the neighbors were opposed to this tent?
Mr. Flahive said no and said Rocky Gentner would like to speak in favor.
Rocky Gentner * Seal Beach
Mr. Gentner said his office is to the north of the swim school and spoke in favor
of the tent. He said Marcia Kleghorn's father ran the swim school after she
became ill and he experienced the same problems of not being able to keep
patrons during the winter months. The swim school was sold and a potential
purchaser tried to get the zoning changed from C-l to R-l and was going to build
a residence. At that time the Planning Commission refused to change the zoning
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Page 14 - CITY OF SEAL BEACH · Plannmg Cmllllll~~lon MmU\~q of May 4, 1994
and stated they wanted a swim school at that location. That owner had to find
someone willing to operate a swim school. The Flahive's enclosed the pool and
this tent muffles the sounds significantly. The school was required to build an
8' block wall, replacing a 6' wood fence, because of complaints from a property
owner at the south side because the noise was coming over the 6' fence into their
bedroom. Regarding the setbacks, even if the pool has a tent over it, he didn't
think anyone could scale an 8' wall. The dome wouldn't be an inhibiting factor.
He felt the chairs are so light weight that they don't present an exiting hazard.
Bmce Stark * Seal Beach
Mr. Stark said he was not speaking in favor or against this project. He said in
1988, when this subject first came up, a builder sought a residential zone change
to residential so he could build a home on that lot. The Grgas' led the opposition
to maintain the swimming pool for the then-owner who was a friend of theirs.
There was a great deal of opposition to the Variance at that time from all the
neighbors on the street. No parking was being provided for this commercial
facility. The Grgas' and the Risner's ram-rodded the pool through. In the April
20th staff report points out the project must not adversely affect the General Plan,
there are special circumstances applicable to the property and it would not be the
granting of a special privilege. Two weeks ago the staff report stated there are
no special circumstances and the approval of a Variance would be granting a
special privilege. He asked how that situation could change in two weeks? In
1988 the Planning Commission granted the property special privileges and now
you may grant more special privileges. He suggested that if the Planning
Commission is going to grant special privileges to 25' x 1171/2' lots with no
parking, then the same special privilege should be granted to all owners of similar
properties in the City. This would be precedent setting by granting a special
privilege.
No one wished to speak further, either for or against, this application.
Rebuttal - Mr. Bartlett said a hardship does exist and that a Variance can be
granted because the property is a substandard width lot. The fact that it's
adjacent to residential property triggers the need for a 3' side yard setback. In
terms of parking, the owners has an agreement with St. Anne's Church to park
most of the cars on their property. This agreement is good for twenty-five years.
Public Hearing closed.
Commission Comments
Commissioner Campbell asked how unique is the lot size? Mr. Curtis explained,
by reviewing a few questions, that there has been no change in staffs
recommendation --- staff still feels there are inadequate findings to grant a
Variance. However, when staff received the letter from the applicant's agent,
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Page IS - CITY OF SEAL BEACH · Plamllllg COI1lI1lI~~IOIl MlIlllles of May 4, I 1194
staff checked and found many 25' commercial properties which abut residential
properties on the rear side (along Main Street and Seal Beach Bouleard), there is
one other 25' wide commercial property which abuts residential on the side and
therefore must provide the same side setback as residential (next to 101 Main
Street). The difference in the two situations is that if you abut the residential on
the side, you must provide the 3' side yard setback, as opposed to 0' which is the
norm for commercial property. When you abut residential properties to the rear,
you can have a 0' setback in a commercial zone unless it abut residential (Main
Street and Seal Beach Blvd.) and then they must provide a 9' rear setback to
match the residential setbacks. Therefore, there is some uniqueness in that it is
bordering residential to the side and most of the other lots abutting residential to
the side are much larger lots. Commissioner Campbell restated the point that if
the Commission determined to grant this Variance, it would not be granting a
special privilege. Mr. Curtis said staff changed its recommendation to "Pleasure
of the Commission" because staff felt it was a reasonable finding to justify the
Variance.
Commissioner Sharp said the Planning Commission is now considering whether
the tent will be allowed to remain.
Commissioner Law said she is against approving the requested Variance because
the exiting is lacking, the applicant has been extremely slow in complying with
OCFD rules and regulations, having just tonight given OCFD statistics on the
tent. The OCFD has had to go to the facility many times to gain any compliance.
Vice Chairman Soukup asked Commissioner Law if the exiting was cured would
she still be against this application? Commissioner Law said if proper exiting
existed she would be in favor of granting this Variance. Vice Chairman Soukup
said "They can't get a permit unless they provide that exiting. So, in essence,
you are actually for it?" Commissioner Law said no, she wants to see proper
setbacks to provide the needed exiting.
Vice Chairman Soukup said he thought there is a greater good associated with this
property and using the tent structure. The fact that the setback issue becomes a
non-issue at 8'. The fact that the tent structure is a portable structure. The swim
school provides the community with a product that is needed and wanted in the
community. That small children can learn to swim in a controlled environment.
The triggering of the setback for one side of the property is a non-issue and it's
a rear setback. So the Commission has the discretionary ability to see the forest
for the trees. He supports the Variance.
MOTION by Soukup;
to approve Variance #94-1
Before a Second or a vote on the Motion, discussion ensued.
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Page 16 - CITY OF SEAL BEACH · Plnnlllng Cmnlll1~SlOn MlIlule~ of MlIY 4. 1994
Commissioner Sharp asked Mr. Steele for information on the prior granting of
a Variance and what's being voted on here. Mr. Steele clarified that the
Commission is now voting on whether to allow a Variance from the municipal
Code requirements with regard to setbacks to allow the tent to remain in its
present location.
Commissioner Sharp asked ifthe tent meets the cement/ground at the rear setback
and how far from the block wall is it? Mr. Curtis said the applicant could best
answer that question. Since the Public Hearing is closed, Vice Chairman Soukup
said the tent comes down inside the block wall and comes down to the cement
floor. It is adjacent to the wall but is not attached to the wall. Where the flaps
come down at the rear, the tent does not come right up against the block wall.
Commissioner Sharp said he didn't have problems with the exiting, feeling that
concern belongs to OCFD. However, he had a problem with the setbacks. Mr.
Steele said that if the Commission approved this Variance and requested staff to
come back with a Resolution, incorporating the Conditions of Approval outlined
in the staff report, Condition #8 requires that the earlier Variance and CUP
remain in full force and effect.
Commissioner Sharp asked Mr. Steele if, as the attorney, he felt the Planning
Commission has sufficient findings to approve this application? Mr. Steele said
he agreed with staff, that findings can be crafted on either side of this issue.
What is the key dicision for the Commission to make is whether the law, if
strictly applied, would be discriminatory? This is the flip side of the special
privilge issue.
Commissioner Campbell said the conditions are listed but there is no date by
which to comply? Mr. Flahive said it was in about four weeks. She asked if this
should be brought back for review at that time? Mr. Steele said the Commission
could provide that the Variance does not take effect until an OCFD permit is
issued. Commissioner Campbell said her concern is that issues involving the
swim school have been dragging on and on. Mr. Steele said another option is to
provide for a review or have the applicant submit a copy of the permit from
OCFD within a certain period of time.
Ms. Hutain said that regarding a temporary structure, including a tent, OCFD
retains the right to revoke the OCFD permit at any time if the permittee doesn't
live up to, for example, health and safety issues. A tent permit is good for only
180 days at a time. The OCFD will be conducting a minimum of two inspections
per year to be sure the permittee is in compliance. If they are not, OCFD has the
power to revoke the permit and shut the operation down. Commissioner
Campbell restated that the situation would not be OCFD reporting back to the
City and having the City revoke the Variance, OCFD would have that power.
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Page 17 - CITY OF SEAL BEACH * PllUlOll1g <':01111111'81011 Ml11ules of May 4, 1994
Ms. Hutain said yes, adding that while OCFD is a separate entity, they do
represent and work with the City. She would coordinate with Barry Curtis
(Planning Department) and Chuck Feenstra (Building Department) in a joint
effort.
Mr. Steele said that if the Commission wants to have a double checks-and-balance
system, the Commission could provide that the Variance will not take effect until
a permit is issued by OCFD. This would mean there is no permit/Variance to
revoke if the OCFD does not issue its temporary structure permit. Then add a
condition that the property owner maintain in full force and effect at all times the
OCFD's temporary structure permit.
MOTION RESTATED by Soukup; SECOND by Campbell to approve
Variance #94-1, allowing a tent, which was constructed to the property line
without required permits, to remain on site at 345 Tenth Street, Seal Beach.
Staff is to return at the next meeting with a resolution which incorporates
Conditions of Approval Nos. 1-10 as outlined in the staff report and in
addition, two Conditions which (1) requires the Variance not take effect until
the applicant is granted a permit from the Orange County Fire Department
and (2) that the applicant maintain the Orange County Fire Department
permit in full force and effect at all times.
MOTION CARRIED:
A YES:
NOE:
ABSENT:
3 - 1 - 1
Soukup, Sharp, Campbell
Law
Dahlman
Mr. Steele advised the public that this decision is not final until the Commission
adopts the resolution and for the ten (10) day appeal period after its adoption.
***
STAFF CONCERNS
There were no staff concerns.
COMMISSION CONCERNS
There were no Commission concerns.
MOTION by Sharp; SECOND by Law to excuse Chairman Dahlman's
absence at tonight's meeting.
MOTION CARRIED:
A YES:
ABSENT:
4-0-1
Sharp, Law, Soukup, Campbell
Dahlman
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Page 18 - CITY OF SEAL BEACH * Plamlll\g CmUIIlI..IOI\ MlI\l\le. of May 4. 19C14
Commissioner Campbell stated she will not be present at the Commission's May
18, 1994 meeting.
ADJOURNMENT
Vice Chairman Soukup adjourned the meeting at 9:50 p.m.
Respectfully Submitted:
ao~~
Joan Fillmann
Recording Secretary
APPROV AL: The Planning Commission Minutes of May 4, 1994 were approved by the
Planning Commission on May 18, 1994. ~