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WEDNESDAY DECEMBER 14, 2005 4:00 & 7:00 P.M.
CALL TO ORDER: The meeting was called to order by Chief Planner Rosen at 4:00 p.m.
PRESENT: Chairman Griffin; Commissioners Bailey, Fitzgerald, Francis, Savage, Hart, and Stopper
ABSENT:
STAFF PRESENT: Chief Planner Rosen, Senior Planner Eastman, Associate Planner Allen and Clerical Assistant Leopold
FLAG SALUTE: Chairman Griffin
MINUTES: Commissioner Stopper made a change to the November 9, 2005, Minutes, pertaining to the last paragraph on page 233. It should read ".systematic approach and that the consultant..." MOTION made by Commissioner Savage, SECONDED by Commissioner Fitzgerald and CARRIED by a 6-0 vote, with Commissioner Bailey abstaining, that the Minutes of November 9, 2005, be APPROVED AS AMENDED

4:00 P.M. SESSION

Election of Chairman and Vice-Chairman

Chairman Griffin stated he had some discussion with staff regarding the election and presented it to the Commission for consideration. He asked if the Commission would consider moving this item to the end of the 4:00 p.m. session.

The Commission agreed to move the item.

PUBLIC HEARINGS

ITEM NO. 1
PRJ05-00393 - ZON05-00045. APPLICANTS: FRANCISCO DIAZ FLORES AND PATRICK PANZARELLO; PROPERTY OWNER: BARRY CODISPOTI.


Staff report was presented pertaining to a request to modify a Conditional Use Permit (CUP) from an existing ABC Type 42 license (On-sale beer & wine - public premises) to an ABC Type 48 (On-sale general - public premises) on property located at 912 W. Williamson Avenue (southeast corner of Williamson Avenue and Euclid Street) (C-2 zone) (Categorically exempt under Section 15301 of CEQA Guidelines) (Continued from September 28, 2005)

Senior Planner Eastman reported that the request was to expand alcohol sales at an existing bar and to change the license from a Type 42 to a Type 48. Staff considers this an intensification of the existing use.

Senior Planner Eastman provided a background on the project's history. The application was reviewed and denied by the Planning Commission on August 28. The request previously included the expansion of the bar in an adjacent tenant space, which required a reduction in number of parking spaces. The applicant appealed the project to the City Council scheduled for November 15th meeting, and revised his plans at that time. He chose to revise the appeal only to request an intensification of alcohol sales, and stated he would replace the demising wall that was removed without permits and bring the bar back to its original approved size. The City Council could not review the revised application with the revised floor plan, because it had not been considered by the Planning Commission. On November 15, without discussion, the City Council remanded the project back to the Planning Commission for consideration.

Senior Eastman stated the location was industrial in nature, with improvements needed to the bar facility for police/public safety. The site requires 94 parking spaces, and 48 spaces are provided which were approved by a conditional use permit in 1996. He stated off-site parking agreements that were approved as part of the conditional use permit may not be enforceable, as they were agreed upon between tenants of adjacent properties.

Staff's conclusion to this request is that the intensification changes a neighborhood bar into a full bar, with inadequate parking, and a fully utilized restaurant and bar would create an overflow parking into adjacent properties. Staff recommended denial of proposed project.

Commissioner Francis questioned the radio calls and calls of service. Senior Planner Eastman answered they have spoken to ABC about the existing owner's history and they have had no negative comments in terms of the operator's record. Calls received at this location have been consistent with a standard neighborhood bar.

Commissioner Stopper questioned the CUP. Senior Planner Eastman said that in 1960 the bar was approved without a CUP, because at that time it was not required. The bar has been operating as a legal nonconforming use and was legal up until the time it expanded into an adjacent tenant space. For the applicant to expand the liquor license from what was approved in 1960, to a full public premise, is an intensification of the bar use. In order to bring them into conformance with code today, the applicant needs to obtain a CUP.

Commissioner Stopper asked if the applicant received a business license and Senior Planner Eastman answered affirmatively. Commissioner Stopper questioned if there were any parking requirements to be met when applying for a business license and Senior Planner Eastman answered negatively. He explained the process of when a CUP is needed.

Commissioner Hart questioned if the applicant had any interest in having live music. Senior Planner Eastman reiterated Condition No. 19 in the staff report stating that if the applicant constructed a stage for live entertainment, or wanted dancing, the CUP would need to be modified. Live entertainment alone does not require a CUP, but would require a permit from the Police Department.

Public hearing opened.

Patrick Panzarello represented the proprietor, Francisco Flores. Mr. Panzarello stated that the current 1996 CUP refers to the restaurant that is now closed. He said parking had never been a problem, even when the restaurant was operating at the same time as the bar. He gave a history on the restaurant and Mr. Flores' current establishments. Mr. Panzarello said Mr. Flores already purchased an alcohol license over a year ago. He doesn't want to lose his alcohol license and has already applied to the ABC, who did a full investigation of the property. He stated that Mr. Flores' establishment has not had any violations on any of his other restaurants, over the last 45 years. He reviewed conditions and stated that Mr. Flores would even add a condition that should parking become a problem, he would hire a parking attendant to be present on Friday and Saturday evenings.

Chairman Griffin questioned purchasing a full liquor license from the ABC. Mr. Panzarello explained the process in obtaining the license through a lottery. The license is also pending an approved CUP.

Chairman Griffin wanted to clarify that instead of accepting Condition 1, Mr. Panzarello would like to entertain some kind of parking control measure with an attendant. Mr. Panzarello answered affirmatively.

Commissioner Francis explained to Mr. Panzarello that a Type 48 license could not be purchased, and explained how he obtained his license for his restaurant.

Commissioner Bailey asked if applicant would lose his money if the license not approved.

Commissioner Fitzgerald reiterated the staff report's comments about the industrial area located near the bar. She asked Mr. Panzarello if he agreed with the comments. He answered yes and gave his explanation and agreed to the conditions stated.

Commissioner Fitzgerald asked if he has obtained permission from the property owner to construct the fence at the rear of the property. Mr. Panzarello read the letter from the property owner to support this project.

Commissioner Francis left the room.

Commissioner Hart questioned the size of the facility and what would happen to the excess space when the wall is added. Mr. Panzarello said it would go back to the landlord.

Commissioner Francis returned to the meeting.

Commissioner Francis had his assistant call the ABC and verified that a Type 48 license could not be issued in one year, but it took two years, and explained why.

Charlie Corsi, real estate broker in the center, spoke and gave a brief background on the history of the center. He said in the past six years he had not seen any incidents of trouble. He stated there was never any overabundance of parking and supported giving Mr. Flores a chance.

Art Lomeli, dentist, and board member of Downtown Business Council and Santa Ana Chamber of Commerce, said he knows Mr. Flores very well and knows he is a good business man. Mr. Flores has high quality restaurants in Santa Ana and Mexico, and Mr. Lomeli stated that the Commission should support Mr. Flores because he would benefit the City and is a positive part of Fullerton.

Teresa Saldivar, owns and operates Teresa's Jewelers in Santa Ana, is past president of Downtown Business Association, a board member of the Santa Ana Downtown Business Council, and Vice President for CA Jewelers Association. She has known Mr. Flores for more than 25 years and stated Mr. Flores is a very giving person and Fullerton should support him in his endeavor.

Public hearing closed.

Commissioner Francis said he doesn't have a problem giving Mr. Flores a Type 48 license.

Commissioner Stopper said one of the basic issues this project raises is the social issue of alcohol consumption. That issue is beyond the realm and responsibility of Planning Commission The Commission has the responsibility to make sure that we don't agree to anything that can hinder or damage the welfare and concerns of our citizens either in their health, safety or security. He stated social issues bring the dark sides of our society and issues for law enforcement. He stated it makes this item an interesting one from the standpoint of the social issue, but the Planning Commission's responsibility is not associated with social issues, but land issues.

Commissioner Stopper said it appeared the owner and this bar location have had a reasonably clean record and believes this is an opportunity to allow business people to conduct business in a law- abiding way. Although there are social issues, they exist in all parts of the city and country. He felt there were enough conditions that staff has put together should the Commission want to move ahead and approve the CUP. Commissioner Stopper said the Commission should welcome this entrepreneur to our city and he supports him with the CUP.

Commissioner Savage was not in support of this request. Based on the finding, he did not hear any evidence that intensifying the use would not bring with additional problems, and this was his major concern. He voted to deny the request.

Based on some of the findings, Commissioner Hart's hesitated to approve a Type 48 license when the wall was not in place. She would like to see it conforming prior to an issuance of a 48 license, and suggested making it a condition. She was also concerned with armed security in a bar because it means there might be something dangerous going on and hoped that there was not a need to do this. Commissioner Hart stated if this was approved in a smaller manner at the 1,800 square ft. level, she would be willing to give the applicant an opportunity to move forward, but would like it conditioned that the facility be in conformance. She would support this request based on the condition.

Commissioner Bailey said Mr. Flores was a great business owner, but is struggling with the use of the area. He explained that he had been a police officer and worked in an industrial area, where there were adult uses, such as the applicant has been referring to. It created a bad area where police officers had to go to with many problems. He stated that putting a Type 48 use in an environment such as this is a challenge he is having, and at this time he could not decide. He would like to hear more of the discussion and would make his decision at the end.

Commissioner Fitzgerald does not think a Type 48 license or late night activities are conducive to this area, and would also not be supporting request.

Chairman Griffin would support approving the application as it stands. He concurred with Commissioner Stopper's comments, and did not feel that serving another type of alcoholic beverage actually makes a difference in how much alcohol is consumed. Chairman Griffin was inclined to support moving forward with the item. He referred to the proposed condition Commissioner Hart recommended. He said Commissioner Hart would like the devising wall to be complete, as a condition prior to the 48 license being granted. A condition could be written to that effect if the rest of the Commission wanted to move forward.

Chairman Griffin did not want a condition of an armed security guard, and did not think was necessary in our community at this time. He would like to see a fence put up in the back, but would not hold up the application based on that. He also did not think an age verification machine was necessary. He reviewed Condition 1 and said he would not feel the need to hold the applicant to this condition based on the fact that it will not happen. He was aware of staff's concerns about parking, but he didn't think it was fair to hold up this applicant for the potential eventuality, which may or may not occur. Chairman Griffin would approve with Commissioner Hart's recommended condition and without Condition 1 in the staff report.

Commissioner Savage stated that, although he would be voting against it, he believes that since there are no residential neighbors, security would be a good idea, but doesn't think it would be good to have an armed guard.

The Commission discussed the issues of insurance coverage and guidelines of having an armed guard on the premises.

Chairman Griffin recommended to strike Condition 1 in the staff report and add a condition indicating that the devising wall be complete prior to approval of a Type 48 license and CUP. The applicant should be required to submit a security plan, which would include some type of security guard and must be approved by the Fullerton Police Department.

Chief Planner Rosen stated that typically in these situations, staff has allowed the Chief of Police to make the determination what type of security was necessary for the establishment.

Chairman Griffin asked Mr. Panzarello and Mr. Flores to come up to podium. Chairman Griffin asked for comments about his suggestions of modifications to the conditions from the four commissioners who have expressed initial support of the project

Commissioner Stopper supported the deletion of Condition 1 and addition. He supports staff recommendation for the Chief of Police issue. Doesn't think a separate condition is required.

Commissioner Hart agreed with the conditions as stated by Chairman Griffin.

Commissioner Francis stated the Chief and Captain who would be handling this are very fair and doesn't think there would be any problems.

Chairman Griffin reiterated the modified condition and additions to Mr. Panzarello and Mr. Flores. He asked if they would be ok with the modifications and Mr. Panzarello answered yes.

The title of Resolution No. PC-05-41 approving a request for a Conditional Use Permit to allow an existing bar to change from an existing ABC Type 42 license (on-sale beer & wine - public premises) to an ABC Type 48 license (on-sale general - public premises) for property located at 912-914 W. Williamson Avenue was read and further reading was waived. MOTION by Commissioner Hart SECONDED by Commissioner Francis and APPROVED by a 4-3 vote, with Commissioners Fitzgerald, Savage and Bailey voting no, that said Resolution be ADOPTED AS AMENDED.

ITEM NO. 2
PRJ05-00377 - PM-2005-159 - ZON05-00041 - ZON05-00042. APPLICANT: HPA; PROPERTY OWNER: SCIF FULLERTON, LLC.


Staff report was presented pertaining to a request for a major site plan to construct 25 industrial units in 10 buildings ranging in size from 5,090 square feet to 13,563 square feet, for a total of 217,335 square feet; a Conditional Use Permit to exceed the base 40% Floor Area Ratio (FAR) with a proposed FAR of 41%; and a parcel map to subdivide a 12.1-acre industrial site into air space condominiums, on property located at 1300 East Valencia Drive (southwest corner of East Valencia Drive and Sally Place) (M-P-200 zone) (Categorically exempt under Section 15302 of CEQA Guidelines)

Associate Planner Allen reported that staff recommended to approve the request and that no public inquiry was received for this project.

Commissioner Stopper asked about the parking situation on East Valencia Drive and Sally Drive. Associate Planner Allen said the parking was essentially occupied by large trailers and delivery vehicles. Daytime parking is permitted, but she did not know if overnight parking was permitted.

Commissioner Savage asked about the dimensions of a truck allowed on the private streets. Chief Planner Rosen said the Fire Department did review the plans and confirms the streets widths and radius turns can accommodate fire trucks. Commissioner Francis stated a 20-foot fire lane is generally to code, so two fire engines can pass each other.

Commissioner Bailey asked if parking was acceptable. Associate Planner Allen said parking is satisfied, with the condition that everyone shares and each unit does not exceed 25 percent office, 40 percent manufacturing and 35 percent warehouse uses.

Commissioner Savage asked how many parking spaces are required per 1,000 square feet. Associate Planner Allen answered office uses require one space for every 250 square feet; manufacturing - one space per 800 square feet; and warehouse - one space per 2,000 square feet. The applicant was proposing slightly over 215,000 total square feet, and will have 399 spaces.

Senior Planner Eastman added that, based on the proposed mix, the applicant will need 361 required parking spaces.

Commissioner Bailey questioned the parking and policing usage. Associate Planner Allen said the Association is ultimately responsible for the oversight of the parking area. They will address complaints with the owners. Commissioner Bailey said he could foresee the future of parking issues. He questioned if it turned out to be an issue, could the City pull the CUP? Associate Planner Allen answered the CUP was for the Floor Area Ratio only, and the conditions of the site plan dictate the parking.

Chief Planner Rosen said if the City receives a complaint, the City's Code Enforcement division would do an investigation and go through each unit if allocation becomes an issue and the conditions of approval.

Public hearing opened.

Architect and Fullerton resident Bob Jacob, with Hill-Pinkard Architects at 1409 Birch St., Newport Beach, said his client is the Magellan Group and he provided a brief overview on the building and the project.

Commissioner Stopper questioned Mr. Jacob about the 29 conditions listed in the staff report. He said they are in concurrence with the conditions and looks forward to working with staff and incorporating conditions into construction documents before they proceed in submitting them to the City.

Chief Planner Rosen noted a minor change to Condition No. 5 submission of CC&R's to the City. Staff would like to strike "as to form" from the sentence. Typically this language is added for the City Attorney's approval as to form, but it's actually for the department's approval as to content, to make sure it complies with the conditions of approval of the project. Chairman Griffin asked the applicant if they were acceptable to that change, and the applicant answered affirmatively.

Commissioner Savage felt the industrial community in Fullerton was a very worthwhile one because it brings commerce, skilled people working in the industrial sector, engineering people, and people from different backgrounds to the community.

Commissioner Bailey was in support of this project.

Commissioner Stopper supported and welcomed the project into the community. He stated this was the most detailed plans for any project that has come to the Commission in the last four years and appreciated it.

Commissioner Fitzgerald applauds entrepreneurs, such as the applicant, who see great opportunities in Fullerton and come to Fullerton to do projects such as this. She looks forward to supporting it.

Commissioner Hart commented on big parcels broken up such as this and worries about maintaining industry in the community, so this project helps to answer that question. She appreciates that applicant is willing to keep industrial uses in Fullerton.

Commissioner Francis echoed the commission's comments and added this really helps our economy and doesn't look like an industrial development. He stated this was a job well done.

Chairman Griffin stated there appeared to be a consensus of the Commission; it is a beautiful project and a great addition to the City.

The title of Resolution No. PC-05-42, APPROVING a major site plan to construct 25 industrial units in 10 buildings, a Conditional Use Permit to exceed the base Floor Area Ratio with a proposed far of 41% and a parcel map to subdivide a 12.1-acre industrial site into air space condominiums on property located at 1300 East Valencia Drive, was read and further reading was waived. MOTION by Commissioner Savage, SECONDED by Commissioner Hart and CARRIED unanimously, that said Resolution be ADOPTED AS WRITTEN.

OTHER MATTERS

ELECTION OF CHAIRMAN AND VICE CHAIRMAN

Chairman Griffin opened up the floor for discussion or entertainment of motion for a new Chairman for 2006.

Commissioner Stopper explained that the tradition to give every commissioner an opportunity to be chairman of this body was an excellent one. As a result of that, the Commission has started the process of moving up to the chairs and is a very good process. Commissioner Stopper nominated Commissioner Savage to be chairman for calendar year of 2006 effective the first meeting in January.

MOTION made by Commissioner Stopper, SECONDED by Commissioner, and CARRIED unanimously, that Commissioner Savage be Chairman.

Commissioner Savage accepted the nomination.

Commissioner Stopper nominated Commissioner Bailey as Vice-Chairman for 2006, and the nomination was seconded by Commissioner Savage.

Commissioner Francis stated that traditionally nominations are based on seniority and the Commissioners take turns being Vice Chairman. Commissioner Griffin said Commissioner Francis raised a valid concern and agreed with him about keeping the pattern. He stated that Commissioner Francis would have the most seniority on this Commission.

Commissioner Savage withdrew his SECOND.

Commissioner Bailey appreciated the nomination but agreed to continue with the past and rules regarding seniority.

Commissioner Stopper explained that he had based his motion because Commissioner Bailey had expressed an interest. Prior to this meeting, he had not heard any of the other Commissioners indicating any interest in being Vice Chairman. The Commission discussed the interest of the Commissioners in becoming Vice Chair.

MOTION made by Commissioner Bailey to make Commissioner Francis Vice-chairman, SECONDED by Chairman Griffin.

Chairman Griffin stated the new Chairman and Vice Chair would be in place effective January 11, 2006. Commissioner Savage stated there was already a MOTION on the floor. Chairman Griffin asked if there was a SECOND to the original MOTION made by Commissioner Stopper to nominate Commissioner Bailey Vice-Chairman.

Chairman Griffin stated that the MOTION died due to lack of a SECOND. He moved on to Commissioner Bailey's MOTION of Commissioner Francis being Vice-Chair with SECOND by Chairman Griffin. All in favor. Passed unanimously 7-0.

Commissioner Savage complimented Chairman Griffin on the great job he had done as Chairman for 2005.

The Planning Commission excused itself at 6:00 p.m. for a 55-minute break.

7:00 P.M. SESSION

ITEM NO. 3
TRACT TR-15658B. APPLICANT: HAL McNAUGHTON FOR FULLERTON LANDSCAPE HOMEOWNER'S ASSOCIATION; PROPERTY OWNER: VARIOUS.


Staff report was presented pertaining to a request to modify a condition of approval requiring pedestrian access into the Presidential Collection homes, from Merlin and Live Oak Avenues, to facilitate the construction of perimeter security fencing with a key-based access system for surrounding residents to access Rolling Hills Park during its hours of operation, on property located at northwest corner of State College Boulevard and Bastanchury Road (HAL).

Staff gave a brief overview on the project.

Associate Planner Allen reported that this request is to modify the original Condition No. 22 of Tract 15618 (15658) approved in 1999. She said the application set before the Commission is to add pedestrian gates at Live Oak, Merlin and terminus of Tyler. The pedestrian gates in question were already installed.

The specific request has been brought forth from the Homeowner's Association (HOA) who desires to limit the pedestrian access through the project as a result of certain incidences. The HOA realizes there is a desire of residents to the north to continue access so they have proposed a locking system that would include a programmable lock. Select residents would be given keys to access the gates and the keys would be operable during the park hours.

Staff received petitions and letters from 57 residents who live in the area North of Rolling Hills Drive. Petitions requested there not be gates, but should there be gates, they offered a separate alternative. This letter stated that a key-based system was not practical, hours should be expanded from 6:30 - 9:00 pm., and gates be aesthetically pleasing from both sides.

Staff requested the Planning Commission consider the request and determine whether or not the condition should be modified. Associate Planner Allen read the proposed conditions listed in the staff report should modification be approved.

Staff believes distribution of keys was operationally inefficient and gates should be open during specified hours creating visible access.

Chairman Griffin requested clarification on map presented regarding the location of the gates.

Commissioner Francis reiterated what was proposed and questioned if there currently was a system in the City, such as the one presented, and who placed the gates?

Chief Planner Rosen clarified that Maple Avenue has full access to the park. Chief Planner Rosen said the City has public access easements to parks in residential areas, but he was not aware of anything similar to this issue. He added that the HOA placed the gates.

Commissioner Savage recalled that when the development was built, the developer came to the City and asked to develop this property. One of the conditions agreed upon was that free access through the property would be granted. He asked if that was a fair assessment and Associate Planner Allen answered affirmatively.

Commissioner Savage asked if they were talking about altering an original agreement made with the developer and the community, and Associate Planner Allen answered affirmatively.

Commissioner Bailey wished clarification on the CC&R's. He asked if this is something that is given to people who agree to it prior to purchasing their property. He asked when the fences were constructed, and if the HOA had gone against its own rules and changed the access. Chief Planner Rosen said the fences were built with the development, but gates were built after the development was approved and finaled. He suggested that the HOA representatives be asked about their rules.

Commissioner Stopper asked for the City's hours of usage and restrictions on usage of Rolling Hills Park. He also inquired if there was public pedestrian access through Delicata Drive. Associate Planner Allen answered that the park opens at 7:00 a.m. and closes at sunset throughout the year. She said there is no pedestrian access, only at Delicata, and a main gate is used for exiting but not for the general public. Chief Planner Rosen stated it was not part of the original approvals to provide public access through the tract via Delicata, but only via Live Oak and Merlin.

Commissioner Hart understood that prior to this development being built there was a trail easement or trail access and Associate Planner Allen answered affirmatively. There was an unofficial trail system that people would use to cross the property while it was undeveloped prior to the approvals of the tract. There was also an official trail easement running at the northern border of the tract. It was requested to be abandoned as one of the applications on the project. The residents and staff supported that abandonment because of its location. If a trail was built there, it would have been between the two projects, and staff did not believe that was a good location for a trail.

Commissioner Hart questioned what the condition was regarding the gates remaining open. Associate Planner Allen said the minutes of the meetings would indicate there was a large sentiment from the public requesting that access be maintained somehow to the park. The City Council concurred and thus the condition was added. Chief Planner Rosen clarified there was no discussion of the developer installing gates as part of that public hearing, at that time. There was a discussion that if the HOA wanted to come back and amend the condition of approval they would go through a public process, which is why the item was being heard at this time. He stated the gates were installed, but not with proper approval.

Commissioner Francis asked if anyone thought about fencing the whole area. Associate Planner Allen said the HOA would be able to respond to that question.

Public hearing opened.

President of the HOA, Hal McNaughton, 1669 Tyler, presented issues that the community was concerned about. He stated that the HOA is asking the Commission to allow them to gate their community at certain access points to the park, and have the residents agree to certain conditions. Access would be given to certain neighbors. He presented the type of key that the HOA would like to use saying it would cost the HOA $15,000 to install the gates. He stated that when he read the CC&Rs, he could not foresee what issues would arise, such as people riding their motorcycles down the sidewalk, and letting the dogs run loose without being able to do anything about it. Mr. McNaughton stated the police would not do anything about it because it was private property.

Chairman Griffin asked if the police department responds in the same manner they would to incidents in a non-gated community that doesn't have private streets. Chief Planner Rosen answered that other than traffic control, yes. Chairman Griffin stated we might have an issue internally if police aren't responding to the calls. City Attorney Barlow gave examples of when the police would make arrests on private property. She said the police have full jurisdiction to enforce laws within the gated community. Chairman Griffin asked if police and fire departments have access to the entry gate because the community needs to understand that they are covered by the police department. Chief Planner Rosen confirmed that the police and fire departments have access to the community via a Knox system on the sites.

Chairman Griffin asked for clarification regarding exiting the park past the scheduled hours and questioned the unlimited amount of keys. He asked if one key would be provided to each family member per household. Mr. McNaughton clarified that he didn't mean unlimited; rather one key per residence.

Commissioner Fitzgerald asked if a key was lost or a new homeowner purchased a home, would a new key be issued. She asked Mr. McNaughton if he received guidelines of the HOA before he purchased his home. When was the gate installed did he request permission from the City to install the gates. Mr. McNaughton said the HOA had not thought that far ahead regarding new homeowner purchases and keys. He reiterated his comments about not foreseeing this issue come up when he read the HOA guidelines. He answered Commissioner Fitzgerald's question and stated he installed the gates some time in August and did not request permission from the City.

Commissioner Savage asked if the current arrangement allows access for all of the public, or was it limited to just the adjacent homes? His understanding was that the pedestrian access was for public use and not only adjacent residents. Mr. McNaughton concluded that the public access would mean that everyone would have access to walk through the neighborhood.

City Attorney Barlow read the Condition No. 22 of the original approval.

Commissioner Bailey questioned if the original CC&R's contain the verbage about the specific section which states the HOA would maintain the access. Mr. McNaughton stated he read his copy of the CC&R's, but did not see it anywhere. Commissioner Stopper asked if Mr. McNaughton read the minutes of the City Council meeting when the initial agreement was signed and those words were put in the document for the CC&R's. Mr. McNaughton answered negatively, because he was not a Fullerton resident at that time.

Judy Parrot, 31-year resident, lives at end of Merlin. She stated that in all of the years she's lived there, she has never had or seen any problems. Ms. Parrot was gone for three months and when she returned she found the gate locked. She stated she has seen people jump over the gate and it will not keep anyone out. She thinks it's wrong and should keep the gate totally open.

Resident Carol Swan stated there was never any mention of gates in discussions between the City and developer. She said she's lived in the neighborhood for 30 years and has never had anything to complain about.

Doug Schneider lives on the corner of Live Oak and Beechwood and wrote a letter submitted to the Commission (Appendix 9). He stated things have been fine for five years. Gates were built on public property not HOA's property. He stated the gate should be kept open during the day.

Commissioner Bailey complimented Mr. Schneider and told him he had written a very well thought out letter.

Floria Smith, 1660 Tyler Dr., said she put money down in 2002 and didn't get CC&R's until escrow closed. The flyers put out by the developer (Van Daele) stated that this would be a gated community, and that's what she thought she was getting until she was in escrow. She wanted to know why they will need to give people access when there are certain things they don't get, such as having the police patrol their area because it's a private street.

Commissioner Savage stepped out of the room.

Commissioner Bailey explained to Ms. Smith of when she can call the police and what she can do.

Chairman Griffin provided a brief overview to answer Ms. Smith's question as well.

Chief Planner Rosen gave City Attorney Barlow the tract map noting that there is a public service and utility easement over all of the private streets and "for police patrol, fire inspection, refuse collection and for its sanitary sewer and waterline systems". Which means the police could patrol in that neighborhood if there was a need or access.

Marlon Smith, 1660 Tyler, stated one of his concerns was about liability. If someone hurts themselves from another area would the HOA be held responsible? He stated that the public should incur some of the costs for the keys, if it gets to that point.

City Attorney Barlow answered that the person who hits a child on bike would assume liability. For example, the HOA or City would not be liable unless an obstruction was created, and the HOA knew about the condition or created it. Chief Planner Rosen clarified that the sidewalks leading up to Tyler are public sidewalks.

Hugh Wilson, 2751 Merlin, sympathizes with HOA's problems, but the original agreement states to have the gates open. He stated having the gates closed isn't serving members of the community.

Kevin Ha, 2832 N. Lime, says he sympathizes with the Presidential Collection, but lives in a low crime area and doesn't see any problems.

Marva Johnson, resident on Nixon Way in the Presidential Collection, commented the CC&R's were not given to her until a $25,000 check was give to Van Daele. Keys weren't received until the homes were purchased. She said the HOA was not trying to keep anyone out, rather trying to keep the usage of the keys and gate practical. Ms. Johnson asked if anyone had defined public access. She said that on several occasions she did contact the police and they did not respond to her calls. City Attorney Barlow read the condition of approval regarding public access.

Resident John Lee said he's noticed major differences since the gate has been placed. He expressed his concerns.

Carol Foster, 1685 Tyler Dr., stated there was an incident where she questioned the liability. She asked the Commission to take into consideration to at least allow the HOA to apply for an encroachment permit and try to come into some type of agreement with City, the residents to the North and the Presidential Collection.

Commissioner Francis stepped out of the room.

Patty Arrellaga, 2749 Live Oak, stated that after being on vacation she returned to see a fence, which is an eyesore. She said the actual plan clearly showed pedestrian access and didn't show any type of gate bordering area. Ms. Arrellaga stated her neighborhood does not have problems. She asked the Commission to consider the fact that the residents all attended the meetings years ago to have the public access to the park.

Heis Stiles, agreed with Ms. Arrellaga's comments. He spoke about meetings held with Planning staff years ago regarding the development. Mr. Stiles said the Presidential Collection residents apparently bought under a different idea.

Commissioner Francis returned.

Francis commented on the park access and Mr. Stiles comments.

Commissioner Savage returned.

R.J. Smith, 1616 Presidential Collection, made reference to how the community is very safe and friendly. He said the residents have had some issues in their neighborhood. He stated there were no open access points on the plans that were presented to him where outside residents could walk through their neighborhood.

Resident Roman A. said he doesn't believe the neighborhoods should be divided.

City Attorney Barlow stepped out of the room.

Public hearing closed.

Commission took a 10-minute break and returned at 9:04 p.m.

Commissioner Stopper said he remembered the first community meeting regarding the project and gave some background information. At the time, the Commission supported the fact that both parties would benefit, the City would have a park and the residents would have a use of resources that was not just for them, but would pay the full fare for. He said he tried to go through the gate the day before the meeting and it was locked at 11:00 a.m. Commissioner Stopper said he's looked at the issues and why the residents want to lock the gates. He doesn't see a reason to make this a fully gated community and is surprised that the homeowners, with their full knowledge that this was a public access, installed a gate. He can't sympathize with the homeowners and believes the gates and fence should come down and the homeowners should live by the agreement they made and the public should have access to the park through this property as it's been.

Commissioner Bailey agreed with Commissioner Stopper's comments and said the HOA is blatantly in violation of an agreement that the HOA had with the City and the community around it. He would want the gates removed as soon as possible and not change any of the rules that are in place per the previous adoptions.

Commissioner Fitzgerald said access to this property was important in 1999 and is important today. She is not in support of this request to modify the conditions.

Commissioner Savage said that in 1999, the City negotiated with the developer a deal for the citizens of Fullerton that they would have free and unencumbered access through this community, so the developer could do what he wanted to do. He agreed to it and made it clear to the homeowners. He doesn't feel he has heard anything that the HOA has offered the citizens of Fullerton to make up for the access they would like to deny them. He agrees with the Commissioners who have spoken.

Commissioner Hart said her fellow commissioners have summed everything up. She sympathizes with the Presidential Collection homeowners if they did not receive or interpret the information correctly before buying the properties. She cannot support the request for the application to modify the condition, since it changes the idea of what Fullerton is.

Commissioner Francis said the deal was made between the City and the builder and sympathizes with the homeowners. He agrees with the Commissioners and echoes their comments. He doesn't support the modification and thinks that the gates may have to come down.

Chairman Griffin was not in support of the modifications and stated it was very clear in 1999 what the intent was. If the homeowners were mislead, it was an unfortunate situation, but the intent was very clear, which was full public access. Chairman Griffin was not in support of any modifications.

The title of Resolution No. PC-05-44 DENYING a modification to a condition of approval requiring pedestrian access into the Presidential Collection homes on property located at the northwest corner of State College Boulevard and Bastanchury Road, was read and further reading was waived. MOTION made by Commissioner Fitzgerald, SECONDED by Commissioner Bailey and CARRIED unanimously, that said Resolution be ADOPTED AS WRITTEN.

Chief Planner Rosen explained the appeal process regarding this matter.

Commissioner Bailey asked how the property could be brought into compliance, and if the City has the authority to require the removal of obstruction. Chief Planner Rosen confirmed that a letter would be sent to the HOA asking them to remove materials within a certain time frame. It would then become a code enforcement issue.

Chairman Griffin said although he does not speak for the City, he thinks that if an appeal is made, action may be delayed until appeal is heard. Commissioner Francis agreed, but said the gate should be unlocked in the meantime.

City Attorney Barlow said since the fences and gates are built on the City's property they can remove them if they chose to, or proceed through code enforcement action. The Commission does have the power to order that the gates be unlocked pending any appeal or resolution of an appeal in an absence of the decision of having them moved. She recommended the Commission not order them to come down at this time.

Chairman Griffin reiterated the recommendation not to direct anyone to remove gates but to recommend to staff they remain open.

Commissioner Bailey expressed his interest in making a motion to ensure pedestrian access is granted in compliance with the original resolution. Commissioner Fitzgerald agreed and stated that gates must be unlocked at all times and complies with any interim of further action to take gates down, but complies with the intent of the 1999 Resolution.

Commissioner Francis recommended that the HOA keep the gates unlocked, but if they do become locked at any point, and Code Enforcement sees they are locked, then the fence and gates would have to be removed.

Chairman Griffin expressed his concerns regarding this matter.

Commissioner Bailey clarified his motion to state that the HOA maintain unfettered pedestrian access to their properties at the locations indicated during this hearing, 24 hours a day, 7 days a week until further notice. The motion was seconded by Commissioner Hart and CARRIED unanimously.

ITEM NO. 4
PRJ05-00618 - SUB05-00010. APPLICANT AND PROPERTY OWNER: HEUNG S. SHIN.
Staff report was presented pertaining to a request for abandonment of an 80-foot-wide public right of way on property located at 1010 Crestview Drive (between Euclid Street and the intersection of La Mesa Drive and Valley View Drive) (R-1-20 zone) (Categorically exempt under Section 15332 of CEQA Guidelines) (Continued from November 9, 2005)

Senior Civil Engineer Voronel reported that the applicant had submitted an application twice. The original application was submitted in April, 2005. During the application process review, City staff, Engineering and Development Services Departments received numerous calls from concerned trail users and neighbors opposing this abandonment.

The City's Water division opposes this abandonment due to the fact that in case of a water line breakage, they may need entire 80-foot right-of-way to conduct emergency repair operations.

Senior Civil Engineer Voronel stated this area is a very important link for recreational trail users. It provides access to the Hillshire Park Trail, which is very popular with trail users in this city and other cities. An 80-foot abandonment, if approved, would conflict with the City's general plan and will prohibit City from future improvements for the common good.

Public hearing opened.

The applicant's son, Joseph Shin, spoke on behalf of his parents. He presented a flier that was posted around his neighborhood by the trail in May. He stated they spoke to Randy McDaniel, a Parks and Recreation employee, who suggested to leave open a portion of the trail and negotiated this with him. The applicants were told by Mr. McDaniel to leave 40 percent or leave 80 percent. The applicant initially applied for 80 percent, but upon talking to planners they withdrew application and reapplied in July.

Young Shin said she spoke to Assistant Planner Kusch and told her she could use the old application. She didn't realize she had applied to leave 80 percent. Mr. Shin stated the reason they are here today is because they've had problems with overnight parking, people riding bikes in their backyard, erosion, vandalism and trash. They never had intentions to close the trail, but recommended to close 40 percent of trail.

David Miller, 1136 W. Fern Dr., said he was aghast of the liberties the applicants have taken. There is an opportunity to build so much there, and the City can turn it into a park to make more attractive.

Patricia Pulson, 750 Carhart, said the applicants have slowly encroached on this property and are running a business on their land and that has been caused the erosion and trash.

Suzanne Alexander, lives next door to the Shins. She said the Shins do run a business from their home and use the city trail property for their business. The erosion issue was created by them by not having proper drainage. Commissioner Francis asked what type of business she was making reference to and Ms. Alexander replied that it was construction.

Resident Peter Alexander said he'd like to see the Council keep it public land and it should be improved as such.

Douglas Crane, 1034 Crestview, said he had complained to the City in 1967, about the encroachments on the trail. He wants to keep the trail systems open. Mr. Crane stated the Shins have no legal basis to request land and the applicant has made the right-of way a private road for his business.

Greg Hopkins, 1137 W. Fern Dr., suggested some solutions to the applicant's problems. He asked why the trail wasn't fenced so city vehicles could pass through, such as other trails. He stated the trailhead needs to be expanded.

Wendy Shin, daughter of the applicant, said there are a lot of issues that need to be cleared up. She says the loitering was caused by others not all by them. She said if the neighbors had concerns about their house they could've spoken to the Shins.

Young Shin, said she was mislead by the previous property owner and her real estate agent as to where the property line was located. She explained how they have tried to control the erosion and she wanted a solution on loitering and dust.

Public hearing closed.

Senior Civil Engineer Voronel added that during her presentation she didn't mention that the Engineering Department recommends the Planning Commission recommend denial to the City Council of the requested abandonment.

Commissioner Bailey asked if the Commission was only looking at the abandonment issue and Chairman Griffin answered affirmatively.

Commissioner Bailey stepped out of the room.

Commissioner Stopper asked who owned that portion of the recreation trail, who pays the property tax and who is responsible for its maintenance.

Chief Planner Rosen said a portion of the right-of-way is for street purposes and trail purposes. The property to the north has the underlying fee and does not pay taxes. Since 1976, it's been tax free and the City has been responsible for the care of the property.

Commissioner Bailey returned.

Public hearing closed.

Commissioner Bailey asked how the City could own a piece of property, and then it just gets taken over. He will deny the request and doesn't think anyone should be entitled to this property. The citizens should use the trail.

Chief Planner Rosen answered that over a period of years, a creeping encroachment took place. Because survey work was never performed, the City never knew the exact location of the right-of-way.

Commissioner Francis said he definitely cannot accept this and the land should remain with the tax payers of Fullerton to use as a trail. There is no reason to abandon the property.

Commissioner Savage will not vote to approve this. Commissioner Hart said she would have to deny the application for abandonment.

Commissioner Fitzgerald apologized because it took so long for the City to get involved and deal with this issue. She will vote to deny the request for abandonment. Public access was important in 1976 and is important today, and needs to be opened back up.

Commissioner Stopper said the trail belongs to the City and needs to be cared for better than it has been. He could not support the application to abandon. He believes the trail system in the City is one of the strengths in our City and preserving it and keeping it is part of the Commission's duty.

Chairman Griffin was completely appalled at what has occurred on the trail, and will vote to deny, along with his fellow commissioners.

The title of Resolution No. PC-05-43 RECOMMENDING to the City Council denial of an abandonment of an approximately 400-foot-long segment of public right of way located on West Valley View Drive between Fern Drive (La Mesa Drive) and Euclid Street, was read and further reading was waived. MOTION by Commissioner Savage, SECONDED by Commissioner Francis and CARRIED unanimously, that said Resolution be ADOPTED AS WRITTEN.

Chief Planner Rosen said this item would be presented to the City Council sometime in the new year. He explained the appeal process.

OTHER MATTERS

A. RESOLUTION OF INTENTION. A PRJ05-00709 - LRP05-00010. APPLICANT: CITY OF FULLERTON. A resolution of intent to amend Section 15.17 (Residential Zone Classifications) of the Zoning Ordinance pertaining to "outdoor residential recreation facilities." (Categorically exempt under Section 15303 of CEQA Guidelines)

MOTION made by Commissioner Francis, SECONDED by Commissioner Fitzgerald to pass the resolution. Reading of the resolution was waived. All in favor. Passed 7-0.

COMMISSION/STAFF COMMUNICATION

Commissioner Savage questioned staff regarding the access gate at the park off of State College. Chief Planner Rosen answered the only access provided is the oil well gate.

Commissioner Francis thanked staff for the name tags.

REVIEW OF COUNCIL ACTIONS

Chief Planner Rosen provided an update on the City Council meeting.

PUBLIC COMMENTS

There was no one from the public who wished to speak on any matter within the Commission's jurisdiction.

AGENDA FORECAST

The next regularly-scheduled Planning Commission meeting will be January 11, 2006. Chief Planner Rosen reviewed the upcoming items on the agenda.

Chairman Griffin asked when the church on Brea would be presented to the Commission. Chief Planner Rosen answered it would likely be the second meeting in January.

ADJOURNMENT

There being no further business the meeting was adjourned at 10:53 p.m.
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