HomeMy WebLinkAboutJuly 6, 2006 PLANNING COMMISSION
MINUTES
0 ` Meeting — July 6, 2006 - 5:30 p.m.
Council Chambers, City Hall, 1501 Truxtun Avenue
1. ROLL CALL:
Present: Commissioners Lomas, Blockley, Johnson, McGinnis, Spencer, Tragish
Absent: Commissioner Tkac.
Advisory Members: Robert Sherfy, Ginny Gennaro, James D. Movius, Jim Holladay, Phil Burns
Staff: Marc Gauthier, Jennie Eng, Pamela Elisheva, Dana Cornelius
2. PLEDGE OF ALLEGIANCE:
2.a Closed Session.
Commissioner Johnson moved, seconded by Commissioner Blockley, to move into closed session.
Motion carried by group vote.
Mr. Sherfy stated that as a result of the closed session there is no reportable action.
3. PUBLIC STATEMENTS:
Mr. Cooper, with the Kern River Parkway Committee, stated he would like to speak on the Hillside ordinance, as
he has another meeting to attend this evening. He urged the Planning Commission to adopt an ordinance and
referred to the origination of the Kern River Parkway issues raised previously.
Mr. Morgan indicated that he will speak on the regularly scheduled calendar.
Mr. O'Neil, who resides at 208 Los Kios Court, stated he would like to urge the Planning Commission to adopt the
Hillside Ordinance. He stated there are a lot of health and safety issues when buildings are built at the top of cliffs
and bluffs. He indicated that he would like to see some setbacks so the police and fire department can get on top
of the bluffs on a paved path to protect the public. He pointed out that along with private property rights comes
responsibility, and part of that responsibility is to make sure that the public is protected, and that the fire
department and police department are allowed to protect the public.
4. CONSENT CALENDAR:
4.1 Non-Public Hearing Items
4.1a Approval of minutes for Planning Commission meeting of June 1, 2006.
Commissioner Tragish pointed out that with regard to page 1 and his comments in the last paragraph
which he would like to read as follows: "commissioner Tragish stated that according to the Staff report
received, pursuant to City Ordinance, section 56103, the Planning Commissioner should annually review
the City Capital Improvement Program for consistency with the General Plan, and in this regard, he had
not been privy to an explanation of review of the City Capital Improvement Program, and he would like to
know what the items are indicated, and why they were selected." He also pointed out that he would like to
make a correction on page two, in the middle of the Minutes where it starts with "Commissioner Tragish,"
Planning Commission — July 6, 2006 Page 2
starting at the second sentence to read as follows: "He however, pointed out that State law requires the
Planning Commission to make the same consistency finding. Commissioner Tragish stated it is difficult to
make the same calculations and item findings which causes the plan is put together by Staff and he has
no way of understanding some of the calculations and why they are so chosen."
Motion made by Commissioner McGinnis, seconded by Commissioner Spencer, to approve the non-public
hearing items of the Consent Calendar, as amended by Commissioner Tragish. Motion carried by group
vote.
4.2 Public Hearing Items
4.2a Approval of Extension of Time for Vesting Tentative Tract 6182 (San Joaquin Engineering)
4.2b Approval of Extension of Time for Vesting Tentative Parcel Map 10781 (McIntosh &
Associates)
4.2c Approval of Vesting Tentative Parcel Map 11331 (Delmarter& Deifel)
4.2d Approval of Tentative Tract 6657 (Dee Jaspar&Associates)
The public hearing is opened. The public hearing is closed.
Commissioner Blockley moved, seconded by Commissioner Spencer, to approve the Consent Calendar
Public Hearing Items. Motion carried by group vote.
5. GENERAL PLAN AMENDMENT/Land Use Element Amendment/Zone Change
5.1a General Plan Amendment 05-1947 (Banducci Land, LLC)
5.1 b Zone Change 05-1947 (Banducci Land, LLC)
The public hearing on these items was opened and closed on June 15, 2006. Staff report given.
Commissioner Johnson recused himself as he was absent from the June 15th Planning Commission
meeting. Mr. Sherfy indicated that it was his recollection that the public hearing was closed on this item.
Charles Melton indicated that his recollection from reviewing the tape was that the public hearing was left
open on this item. Mr. Sherfy indicated that the Planning Commission can choose to recognize him.
Charles Melton with Clifford & Brown, on behalf of Golden Empire Concrete, advised the Planning
Commission that Brent and Anna Dezember are present, and also understood the public hearing portion
remained open. Mr. Melton stated that they oppose the approval of the plan unless there are certain
revisions to the conditions of approval, and specifically the mitigation issues. Mr. Melton stated that the
proposed development is an incompatible use with the existing use to the north of the property which
consists of the structure cast plant, as well as the Dezember's batch plant. Mr. Melton pointed out that
they believe the 100' setback is necessary. He explained that the agreement reached between the
Dezembers and the developer Banducci Land was with the understanding that the setback did not
include the residential lots themselves, but a true 100' setback. He stated that in the Rivani deal, the 100'
setback did not include the residential lots themselves, but included the landscape line the street and did
not include any residential lots. He stated that what is being proposed by Banducci Land, and where they
have disagreement in the interpretation of their draft agreement, is that they always understood that the
100' setback would not include the residential lots. Commissioner Lomas interjected that they
understood this position. Mr. Melton stated that Structure Cast has not reached an agreement because
of that issue, and he is clarifying that when they reached a tentative agreement with the developer, they
understood that the setback did not include residential lots, and they want to point out to the Planning
Commission that to the extent somebody uses their lot, they have the right to enjoy it, and if they have a
pool back there, in five years they're going to be upset when dust is coming from this development into
their pool, despite their pool being within this 100' setback. Mr. Melton stated they are asking the
Planning Commission to move forward with the approval with the caveat that the 100' set back not
include the residential lots, but be a true set back that would include landscaping, road or otherwise.
Planning Commission — July 6, 2006 Page 3
Commissioner Lomas stated that her recollection is that they had this discussion previously, and inquired
about the wording of the condition on this particular concern. Staff responded that the conditions of
approval on the previous project did not require that the setbacks could not include lots. The Dezember
agreements between Rivani in fact set up an agreement between them that included a road and some
landscaping, but it was not Staff's condition that required that area to be composed of a road and
landscaping. Staff further pointed out that they did not want to maintain landscaping along a local street.
Staff reiterated that the Staff conditions did not require a street and non-lot area to make up the 100'
buffer. Commissioner Lomas inquired if this was an outside agreement, not enforceable by the City, to
which Staff responded in the affirmative.
Commissioner Tragish inquired if there is a PG&E easement that runs along the north boundary in the
same location where the 100' setback is being requested. Staff responded that the PG&E easement
would be north of this 100' buffer and not within it, and therefore, not in this applicant's property.
Commissioner Tragish commented that he did speak with Mr. Kleier and Mr. Dezember about this.
Commissioner Tragish stated that the conditions are appropriate and he is satisfied with condition 9 and
how it is written regarding the 100' setback. Commissioner Tragish further commented that he read the
letters concerning the issues that were continued, and it does not appear that the acid washing and
sandblasting have any impact either.
Commissioner Lomas stated that she spoke with Mr. Kleier, and pointed out that the concerns that the
Commission had were related to the applicant and the neighbor getting together to reach an agreement.
Staff confirmed it also involved the acid etching. Staff pointed out that from what they've seen, the
southern part of the property is used as storage and the acid washing is not taking place near this
proposed project. Commissioner Lomas stated that she had asked for a copy of the neighbors' CUP, and
in the CUP the batch plant is subject to quite a bit of limitations, including keeping dust control down.
She further pointed out that the CUP sets hours of operation, and does not see the things pointed out by
Mr. Melton as a problem. Commissioner Lomas stated that she is satisfied with the City's conditions of
approval.
Commissioner Blockley stated that he believes Staff has legitimate reasons for making their
recommendation to approve this project.
Commissioner Blockley moved, seconded by Commissioner McGinnis, to adopt a Resolution making
findings and approving the Negative Declaration and approving the General Plan Amendment to change
the land use designation from R-IA to LR on approximately 46 acres as shown on Exhibit A-2, and
recommend the same to City Council.
Motion carried by the following roll call vote:
AYES: Commissioners: Blockley, McGinnis, Spencer, Tragish, Lomas
NOES: None
ABSENT: Commissioner: Tkac
Commissioner Blockley moved, seconded by Commissioner McGinnis, to adopt a Resolution making
findings, approving the Negative Declaration, and approving the zone change from A to R-1 on
approximately 46 acres as shown on Exhibit A-2, and recommend the same to City Council.
Motion carried by the following roll call vote:
AYES: Commissioners: Blockley, McGinnis, Spencer, Tragish, Lomas
NOES: None
ABSENT: Commissioner: Tkac
Planning Commission — July 6, 2006 Page 4
6. PUBLIC HEARINGS — Tentative Parcel Maps / Tentative Tract Maps
6.1 Vesting Tentative Parcel Map 11331 (Delmarter& Deifel)
Heard on consent calendar.
6.2 Vesting Tentative Tract 6813 (The Monarch Affiliates) (Continued from May 18th &June 1, 2006)
The public hearing was opened on May 18, 2006, Staff report given. Gordon Nipp, with the Sierra Club,
stated their concern with air pollution, and the cumulative effect of all of the projects which is significant.
He suggested that the City put a condition on this project requiring the builder to accept Rule 9510,
regardless of the outcome of the Building Industry Association's lawsuit against it, and that it be a
condition against all future projects.
Renatto Arellano, with The Monarch Affiliates, stated they are in favor of Staff's recommendation. The
public hearing is closed. Commissioner Tragish inquired about the condition stating that the Courier
Street is going to tie into tract 6742, and asked for a drawing of where the tie in will be. Staff responded
that there will be a tract directly to the south. Commissioner Tragish inquired about the canal along the
west side of Stine Road being relocated out of the right-of-way and inquired as to its location. Staff
responded that it would be relocated outside of the public right-of-way. Commissioner Tragish confirmed
that there will be no access to the project from Taft Highway or Stine Road to which Staff responded that
the waiver of access for all the lots that would be correct. Commissioner Tragish inquired if the only way
into this project is off of the access that will be created off of Courier Street, to which Staff responded that
the tract immediately to the south has connections down to Curnile and they will be able to go down to
Curnile, and there will be access on Stine Road on Sawyer Street.
Commissioner Tragish stated that with respect to Mr. Nipp's comments regarding Rule 9510, if it is
included as a condition it will just create lawsuits, and does not believe that it is practical at this point. He
stated that he is not in favor of adding such a condition in.
Commissioner Blockley inquired at what point the City weighs in on street names because there already
is a name Haley Street in Bakersfield. Staff responded that this is handled in the Planning Department
administratively, and before a map is recorded there has to be satisfactory street names with no
duplications or sound alikes.
Commissioner Lomas stated that in response to Mr. Nipp's request, the Planning Commission cannot
impose such a condition, and only have that discretion at a General Plan zone change. She suggested
that while driving from Bakersfield to Fresno she has found that on Friday nights there is a lot of burning
going on, and believes that if the Sierra Club really wants to help clean up the air that there should be
some enforcement on Friday nights in the valley. She further stated that there is a letter from Mr. John
Parish who apparently owns a portion of the mineral rights, and has indicated that they do not want to
relinquish these rights, and inquired of the City's stance on this issue. Staff responded that the applicant
has provided a report, prepared by a qualified geologist, which indicates that drilling access to the
minerals beneath the site and the Planning Commission can either go with that since the mineral right
holder did not show up to provide evidence to refute that report. Staff indicated that it was their
understanding that there was some controversy regarding the amount of money they were going to be
paid for their signature. Staff stated that right now the Planning Commission has a report with evidence
on the record that satisfies the City's ordinance, and the subdivision can be approved, or the Planning
Commission can require that the applicant set aside a minimum 2-acre drill site within the subdivision if
the Commission does not want to accept the report. Commissioner Lomas inquired if they can require
the signature. Staff responded that if the applicant is willing to provide the 2-acre drill site, the signature
could not be provided because that would satisfy the ordinance requirements. Staff pointed out that
unless there is evidence on the record refuting the report, or indicating why a 2-acre drill site is not
appropriate, it is not recommended to require a signature. Commissioner Lomas pointed out that her
concern is that Mr. Parish believes he owns something, and it doesn't sound like they're a sophisticated
mineral owner, and she is concerned that they understand what their rights are, and what their
obligations are to protect those rights. She further stated that if they just take a report without knowing
what Mr. Parish understands or doesn't understand, she is uncomfortable about removing his rights.
Planning Commission — July 6, 2006 Page 5
Staff indicated that they have talked to the mineral rights owner as late as yesterday, and they
understood all the possibilities that could occur, and apparently some months ago there was some
money offered, but the agreement between the two never went through, and the applicant indicated to
the mineral right owner that they were going to supply the study to the City, and Staff advised the mineral
right owner that the Planning Commission could approve the project with this, and told them the date,
time and place of the hearing, and apparently the mineral right holders decided not to show up. Staff
pointed out that the mineral right owners are aware that this could be approved tonight. Staff pointed out
that it was not a large amount of money that was agreed to before. Commissioner Lomas pointed out that
the way the letter is written it does not appear to be a money issue, but something that was owned by a
parent.
Commissioner Blockley commented that A J Environmental who wrote the report, asserts at the end of
the report that the Division of Oil and Gas and Geothermal Resources has requirements that would be
substantially in excess of a 2 acre drill island for safety purposes, which would mean approximately a
400X600 ft. drill area with a hole in the ground in the middle, which would be about five or six acres. Staff
stated that they have no comment, and will not defend this report because they do not have the expertise
to do so.
Commissioner Lomas inquired if the applicant was available. Commissioner Blockley inquired of Renatto
Arellano with The Monarch Affiliates, if the person who prepared the report is present to speak with
regard to this particular issue. Harold Sugden, a professional geologist working for A J Environmental,
responded to the issue concerning the "critical well," by stating that the depths to which this well would
have to be drilled in order to have the remotest chance of finding anything would require a very large rig,
and you would be anticipating very high pressures, which makes it quite critical, and therefore safety
distances are increased.
Commissioner Blockley inquired if the applicant would be in favor of resolving whatever lingering doubt
may be in this by obtaining the signatures from the mineral rights owner. Mr. Arellano stated that it is
always their first option to take that route, and the reason it was not taken is simply because they could
not compile a large percentage enough of the signatures to have the total acre drill island waived, and
that is why Mr. Sugden was hired to do their part for them. He stated at that point they had not come to
an agreement with the outstanding mineral right owner. He pointed out that since some of the interested
parties were deceased, and they would not be able to get enough proper signatures they decided to take
the option of utilizing a geologist.
Commissioner Blockley stated that it seems that the applicant has done everything they possibly can to
obtain some sort of successful resolution, and indicated that he is in favor of approving the project.
Commissioner Tragish stated that it sounds like the applicant has made a good faith effort, and A J
Environmental has indicated that there does not appear to be any great potential, and therefore he is
satisfied with the project as construed right now.
Commissioner McGinnis stated that since Staff has been in contact with Mr. Parish, the mineral rights
holder, and has expressed an interest in retaining the mineral rights, which appear to be virtually
worthless, according to the geologist, perhaps the applicant might be able to change the street name
from Haley Street to Parish in exchange for signing off on the mineral rights, and continue until the next
meeting and given the mineral right owner that option.
Commissioner Lomas stated that she would like a real hard effort attempted to obtain the signature, and
assurance that they have an understanding. She pointed out that it sounds like it is more sentimental
than anything else. She stated that she is very uncomfortable determining the worth of what somebody
feels is valuable without them here, and without a signature, or without them here, she would vote no.
Commissioner Johnson inquired of the applicant that there is a proposal to continue this matter, if
rearranging the tract map to install a 2-acre drill would be more_ (end of side A, tape 1)
Commissioner Lomas commented that this is the only time that a mineral right owner is notified that they
could lose their mineral rights and that it is not done at General Plan Amendment nor at zone change.
Planning Commission — July 6, 2006 Page 6
Commissioner Tragish moved, seconded by Commissioner Blockley, to approve vesting tentative tract
map 6813 with findings and conditions as attached to the Planning Director's memo dated June 20, 2006.
Motion carried by the following roll call vote:
AYES: Commissioners: Blockley, Johnson, Spencer, Tragish
NOES: Commissioner: Lomas
ABSTAINED: Commissioner: McGinnis
ABSENT: Commissioner: Tkac
6.3 Tentative Tract 6657 (Dee Jaspar&Associates)
Heard on consent calendar.
6.4a Vesting Tentative Tract Map 6776 (McIntosh & Associates)
6.4b PUD ZC 05-1897 Planned Development Review (McIntosh & Associates)
The public hearing is opened. No one spoke in opposition to Staff's recommendation. Darcy Larming with
McIntosh & Associates, representing Castle & Cooke, stated that on the Agenda it indicates PUD Zone
Change, and it is actually a PD Development Plan Review, and the Staff report references the correct PD
Plan Review. She further pointed out that they are in favor of Staff's recommendation with the exception
of two items. Specifically, the memo from the Fire Department dated July 6th referencing condition
number 23 of tentative tract 6776, should also reference condition number 2 on the PD Review which
addresses the fire sprinklers. Ms. Larming stated in addition, with regard to condition number F2 from
Public Works of the PD Development Review, the solid waste division has asked for seven double trash
bins to be provided, and they propose that since this is a single family residential development that each
of the residences will be having their own trash carts, and green waste will be maintained for the front
yards, and all of the common areas by the homeowner's association by a contracted landscape
maintenance, and therefore they would like that condition to be revised to read that they will be providing
the carts, and not the bins for the residences. She stated that with those corrections they are in favor of
Staff's recommendations.
The public hearing is closed. Commissioner McGinnis inquired what provision has been made for green
waste for the rear yards. Ms. Larming responded that the rear yards are so small that primarily they are
either patios or shrubs and the small amount of green waste can either be contracted where the
homeowners can dispose of it themselves, or they can contract with the landscape maintenance
contractor. She further pointed out that solid waste concern is that they meet the 50% reduction in solid
waste, and by providing these individual carts and the green waste recycling along with the HOA
landscape contractor they are probably exceeding that 50% mandate, and therefore all the common
areas and front yards will be taken care of by the HOA, and the rear yards are so little that a green waste
pick up would not be fiscally available.
Commissioner Lomas inquired of Staff to weigh in on this trash issue. Staff responded that their only
recommendation is that the words could be put in front of condition number 2, that "Unless otherwise
approved by solid waste..." Staff indicated that they do not want to completely remove it as there is a
concern with a lot of trash bins on narrow streets that have parked cars.
Commissioner Lomas stated that with respect to the wrong wording on the Agenda, that the motion
language is correct. Staff responded that in the Agenda that is the reference to what zone change the
Planned Development Review applies to.
Commissioner Lomas inquired about an addition to condition 23, to which Staff responded that on the
second motion that the following be added to the end: "to apply to the development review to be
Planning Commission — July 6, 2006 Page 7
consistent with the tract map approval.." and they will correct the numbers when they do the final
resolutions.
Commissioner McGinnis moved, seconded by Commissioner Blockley, to approve vesting tentative tract
map 6776 with findings and conditions set forth in the attached resolution, incorporating the Planning
Director's memo dated June 29, 2006, Parks Department memos dated June 28, 2006 and July 6, 2006,
and the Fire Department memo dated July 6, 2006.
Motion carried by the following roll call vote:
AYES: Commissioners: Blockley, Johnson, McGinnis, Spencer, Tragish, Lomas
NOES: None.
ABSENT: Commissioner: Tkac
Commissioner McGinnis moved, seconded by Commissioner Blockley, to approve Development Plan for
file number 05-1897 as delineated in the attached Exhibit 3, with findings and conditions set forth in the
attached resolution, incorporating the planning director's memos date June 29, 2006, July 5, 2006, and
the Fire Department memo dated July 6, 2006, and to apply the Development Plan Review to be
consistent with tract map approval.
Motion carried by the following roll call vote:
AYES: Commissioners: Blockley, Johnson, McGinnis, Spencer, Tragish, Lomas
NOES: None.
ABSENT: Commissioner: Tkac
7. PUBLIC HEARING — Hillside Development (HD) Combining Zone Amendment (Negative
Declaration on file)
The public hearing is opened. Staff report given.
Break taken.
Scott Howry, representing DKS Investments, John and Joseph Taribeno, General Holdings and the Canyons,
LLC, gave a presentation. He stated that the DKS and Taribeno properties are impacted by the slope protection
areas as well as the view shed designations, and that the Canyon's is impacted by the view shed designations.
He requested that his written objections to this particular draft of the ordinance be made a part of this record. Mr.
Howry pointed out that this particular draft of the ordinance is much worse than the previous proposal that came
before the Planning Commission a year ago, in that this particular draft actually goes as far as stating there are no
build zones, and you are just not going to be able to build on your property, and, therefore, as far as DKS
Investments is concerned it completely wipes out any development on that particular property, and that is
something that is obviously objected to. Mr. Howry stated that in the June 1, 2006 meeting minutes, Mr. Movius
indicated that this is a unique ordinance, and is important to note especially considering Mr. Movius' address this
evening where he indicated that the City Staff compared this particular ordinance to other ordinances. Mr. Howry
stated point is that unless they know which particular ordinance that they are following, there are 29 potential
ordinances that were set up, that Mr. Movius now indicates that this particular ordinance is a unique ordinance,
and therefore they are not sure which one it particularly follows. He pointed out that in trying to figure out whether
they're comparing apples and apples and if the topography is the same, Staff's reference to topography in
Colorado certainly is not the same as Bakersfield. He pointed out the reference made to San Bernardino, and
that the designation of that ridge line had much more definition then any designation of what a ridge line is here,
or what would be a bluff, or what would not be a bluff.
Mr. Howry pointed out that City Staff going out along various points and taking a look at the property and the
topography and determining where it had aesthetic value is a subjective and arbitrary determination by the City
Planning Commission — July 6, 2006 Page 8
Staff as to where this ordinance is going to apply, and whether the designations are going to apply. There is no
objective criteria to determine what's a primary view shed, what's a secondary view shed, and what's the slope
protection area.
Mr. Howry pointed out that when looking at a particular ordinance such as this, it is important to look at what you
are trying to accomplish with this Hillside Ordinance. He questioned if the goal is to accomplish health and safety
and resolve drainage issues, then why does this entire ordinance focus on views and view sheds and not health
and safety issues? He inquired why there are no health and safety studies, no geotechnical studies, and no
drainage studies. He further pointed out that with regard to the arbitrary designation, there is a certain piece of
property, which appears to be flat, has been designated as a no build zone, and is across from the Tuscany
development across Alfred Harrell Highway, is not designated as a slope protection area. He pointed out that
these certain property owners can build on this certain property, but the property owner, Mr. Taribeno, who owned
the previous photograph can't build at another location. He questioned how there is this distinction. Mr. Howry
stated that it does not appear to be a health and safety reason for the distinction.
Mr. Howry pointed out that his clients have absolutely no objection to preserving the slopes of the bluffs and the
views of the bluffs, and the City knows this because of the Canyons Tract Map, as well as DKS's Tract Map. He
went on to point out that the City knows that his clients have no intention of building on the slopes of the bluffs,
because they have a visual analysis, which cost his clients several hundreds of thousands of dollars at the City's
request, which identifies what visual impact there would be with their project. He pointed out that the visual impact
analysis shows that there is a negligible to non-existent visual impact of any development that is going to take
place with respect to the view of the bluffs.
Mr. Howry then questioned if the City knows that there is no danger of anybody developing the slopes of the bluffs
or ruining the views of the bluffs, and the goal is to preserve the aesthetics of the bluffs and keep homes from
being visible along Alfred Harrell Highway, then why has the property across from the Tuscany development not
been designated as a slope protection area, or as a primary or secondary view shed? He referred to the Rivers
Edge project which has been approved, and will have homes there, and the Cattle Pin Estates which has homes,
and the S&S Homes project which also has been approved for homes. He stated that a view of the Kern River
from Alfred Harrell Highway has homes, and the Kern River Corridor across the river has hilly property and
development with potential homes. He further stated that there is the Panorama area where homes can also be
seen. He pointed out that the purpose can't be to protect the health and safety and welfare of Bakersfield citizens
and the purpose is not to protect the aesthetics of the bluffs or development along the bluffs, and can't possibly be
to not see homes from Alfred Harrell Highway.
Mr. Howry questioned what other purpose is left, and the only other purpose left is a grab for open space. He
stated that the City is attempting to designate property as open space. Mr. Howry pointed out that his clients'
development is not in the bluffs, but rather in foothills, and the topography is consistent with northeast Bakersfield
and is consistent with other development that is taking place in this area, and is consistent with other projects that
the Planning Commission has approved along Alfred Harrell Highway, and the property owners in that area own
property that has been zoned for residential use for over 20 years. He presented more photos in this corridor that
have been designated as no build zones, which are relatively flat property, and certainly property that could be
developed, as well as being property that is consistent with the topography in the northeast foothills. He
presented photos that showed property designated slope protection area where it is evident that the property has
been strip mined, and motor crossed on, and is not attractive to the eye. Mr. Howry again questioned why it is
being designated as no build zones when there are no bluffs, and is not particularly attractive. He further pointed
out an area that will be a four or six lane highway, and questioned why they are trying to keep people from seeing
homes from what is going to be Morning Drive. He stated that this question needs to be asked because the
attempt is to take somebody's property without paying for it. He stated that we need to know why the City is
taking this property before any ordinance is passed that says that a property owner that's owned this property,
has relied upon the vesting, who has relied upon the residential zoning, and who has relied upon the 2010
General Plan that does not designate this area as a scenic corridor, has to have a no build zone inflicted upon it.
He stated that these ridge lines are being designated as primary view sheds, even though they are not bluffs. He
stated that this is property that is being impacted, and is a development wherein a lot of money has already been
spent by the property owner in reliance upon the current zoning, and the City is attempting to apply this ordinance
retroactively to this development that has already been deemed complete as far as the application process is
concerned.
Planning Commission — July 6, 2006 Page 9
Mr. Howry went on to state that this is a hill that is in the Paladino area that the City is intending to remove in its
entirety for Paladino Drive. He stated that that hill that is being referred to is bigger than any hill in the area, and
his clients do not intend on removing any hill in its entirety as the City is doing. Mr. Howry concluded that the
question is, since it is obvious that the attempt is to acquire some open space in this particular area, is this
authorized by the 2010 General Plan? He pointed out that the 2010 General Plan acts to clarify and articulate the
relationship and intentions of local government to the rights and expectations of the general public property
owners and prospective investors. He stated that his clients relied upon this, in addition to the residential zoning
of the property in this area. He stated that according to the 2010 open space can be acquired by the City of
Bakersfield, "with the cooperation of private land owners, utilizing all resources and programs...." He pointed out
that his clients, as private land owners, were not consulted at all regarding this Hillside Ordinance draft, and
therefore they cannot figure out how that could be with the cooperation of land owners. He stated that no where
in the open space element of the General Plan does it indicate that the City can pass a regulation ordinance
designating private property as a no build zone, or a slope protection area that you can't build on to acquire open
space. Mr. Howry stated that with regard to percentage of slopes, the General Plan addresses this issue as to
what happens with respect to 30% slopes, and what the City's intent is. The General Plan states that it is not the
intent that the open space slope land use designation preclude development. Therefore, if you're a private
property owner, and you're going to be either buying property or developing it you not only look at the residential
zoning, but also the 2010 Plan, which states that it is to accommodate new development which capitalizes on the
plains area, natural environmental setting, including the Kern River and the foothills. He questioned where in the
General Plan there is any language that would put a property owner on notice that the City was going to come
along at some point in time and designate their property as open space, or as a no build zone and how that would
be fair?
Mr. Howry stated that with respect to the fairness issue, the property has been zoned residential for over 20
years, and private property owners have been encouraged to develop NE Bakersfield rather than western Kern
farm land, and significant amounts of money have been expended with respect to some of these properties. He
stated that there is absolutely no objective criteria for the designations that have been made as to which
properties the Hillside Ordinance would apply to. He inquired why his clients' property is being designated as a no
build zone, while other property owners along Alfred Harrell Highway are allowed to build and develop their
property, especially when the topography is very similar. He pointed out that they own foothills, and not bluffs, and
yet they are being singled out and treated differently.
Mr. Howry commented that the City's proposal is not good planning because this area is going to have a four or
six lane highway or arterial road through it and it is not good planning to have no homes that are visible in this
particular corridor because it doesn't make any sense.
Mr. Howry stated that he disagrees with Mr. Movius that this does not constitute a taking. He stated that it is an
attempted taking by regulation where the City is attempting not to pay for the property that they want designated
as no build zone. (end of side B, tape 1)
----- (???) He submitted that an ordinance which says you can't build on your property, and we're not going to
pay for it, unduly restricts that property and would constitute a taking. He stated that if it is a taking it is going to
cost the City a lot of money, and questioned that if it is going to cost the City millions of dollars is that something
that the taxpayers of Bakersfield would want to spend the money on, to keep the property which is strip mined,
the foothills, from being developed and having any homes on it? He pointed out that under the Canyon's
Development and DKS's development there is going to be hundreds of acres that are going to be left as open
space, and there's going to be 11 miles of trails, as well as nearly 15 to 17 acres of park area, and it is not
property that the City needs to take for open space and spend that kind of money on. He stated that with respect
to the contention that there is an appeal process for an owner whose property is rendered uneconomic, their
response is as follows: his clients would be in a position where they would have to go file a new tract map
application, and would have to change their project description, and then would have to request a zone change in
order to apply for a PUD, and have to show that special circumstances exist to exempt them from the ordinance
and for the zone change. The city already knows what his client's development project is. He stated that there
clearly is no intent by the City Staff to exempt his client from anything, and therefore, the argument is that even
though this ordinance is ill-conceived, and it's a bad idea, it might take your client's property and make it
uneconomic, you can always appeal it. He stated that this is not a good position for a property owner to be in,
having to try to argue that special circumstances justify a zone change and leaving it up to the discretion of the
City Staff as to whether they meet that exemption or not. He pointed out that it is an expensive proposition as
well. He stated that with respect to the area he has identified, there is no attempt at balance, but simply is a
Planning Commission — July 6, 2006 Page 10
taking of the property, and is a regulation that says you can't build there at all. He commented that it is a very
slippery slope when the City starts designating private property as a no build zone, or open space, and inquired
how any citizen in the City of Bakersfield would feel if the City designated their property that has been zoned for
residential use for over 20 years, as open space, and told them you're not going to be able to build there
anymore. He pointed out that a lot of people have been using his client's property without authorization, and
therefore trespassing, however, they do not own the property. He pointed out that this ordinance should have
been based on health and safety studies, and based on geotechnical studies as to where it is safe to build, and
not have been designated by somebody who is going out to a view point, taking a look at the hillside, and saying,
"I think this area should be protected." He stated that this is too much subjectivity and not enough objectivity, and
it leaves it to the discretion of a few as to whose property is being taken without any compensation.
Mr. Howry reiterated that his clients have no objection to restricting building or fencing as indicated with regard to
the Tuscany Development on the slopes of the bluffs, and have no objection to working with the City to ensure
that the views of the bluffs will always be protected, and have never had a problem with this. He urged the
Planning Commission to vote against this proposed ordinance that goes far beyond its advertised goal, and is
completely inconsistent with the City's own 2010 General Plan.
Robert Kapral, stated that he had a problem with the CD for his presentation, and he will present the Canyon's
project, and has available their visual consultant from the Bay area to show actual visual photographs before and
after.
Short break taken.
Robert Kapral, project planner and local project manager for Canyon LLC, spoke about the Canyon project so the
Planning Commission can understand what the project is about, and some of the greater community benefits. He
stated that there are some spectacular views of the Kern River, and that they have preserved the trails along the
perimeter of the bluff edges for the public. He stated that the outside is beautiful, but not so beautiful on the
inside in some areas, and pointed out that most of the project is visually isolated. He stated that approximately
25% of the property was surface mined, and there is about 239 acres of previous mining operations, and the
internal views were shown, pointing out that there is surface mining, off-road vehicles, refuse disposal and other
activities. He stated that the project consists of 890 acres, of which a third is being retained as open space, and
there are about 1280 single family residential units, roughly 120 condominiums, and about 8 acres of commercial.
He stated that the property is currently designated residential for most of the property. He pointed out the trail
system and the provided 40' area that is along the bluff edges before there is even a tract wall. He stated that this
project is a gated community consisting of about 11 private gated communities within the overall development,
and pointed out that the streets are public streets, with an integration for public access to all the open space and
the trails within the project. Mr. Kapral pointed out that the multi-use trails show the additional right-of-way area
and landscaping for the trails, and the bike path. He reiterated that there are 11 miles of trails, two of it is Class I
bike path, which was not required.
Mr. Kapral stated that with respect to the view sheds, the eastern side of their project was designated as a Class
11 visual area, and the rest was designated Class 1, although he believes that it should all be designated as Class I
because it is the same ridge line that you see when you're driving down Alfred Harrell Highway. He stated that
one major objection they have is up in the area where there's some Class 11 visual area, which has a view from
Alfred Harrell Highway traveling on the westbound lane, and stated that it takes less than 2 seconds to pass this
area going 50 mph. He pointed out that you miss this view and basically it is blocked out by the towers, and that
from the eastbound lane you can't see anything because of the eight 10' high cut slope. He stated that this is all
state owned property going back a half mile, and the ridge lines are designated as primary view sheds, which they
have respected in their design, and is about 1 mile away from the photo. He stated that they do not see the need
for a Class 11 as that particular area is not a bluff, and there is already plenty of open space, and believe that the
objective is to keep them from building in this area.
Harry Benky, managing partner for Visual Impact Analysis, stated that Canyons hired them to do a very stringent
job on a visual analysis. He stated that they have 100's of EIR's that they've participated in, and many of them
involve hilly terrains, rugged terrains, confined view sheds, and expanded view sheds. He stated that their
methodology is to follow technology and use the cutting edge in order to translate engineering data and planning
data into a 3-D format which is accurate and reliable, through a methodology which is easily followed and
reproducible. Mr. Benky stated that the selection of simulations to be presented reflect this methodology. He
pointed out that they took the plans of the Canyons, produced 3-D models, and generated perspective plots which
Planning Commission — July 6, 2006 Page 11
were then scaled and mapped to photographs taken from key view points, and subsequent photo montage is
produced. He commented that the key view points were selected in conjunction with Bakersfield planning, and
Visual Impact Analysis conducted a visual resource inventory of the entire area, and also at the suggestion and
querying of Visual Impact Analysis, what are particular areas of concern in an area, which were visited among
many, many others. Mr. Benky stated they were able to produce a large array of photos which were then
submitted and Staff was asked for their recommendations and concerns of where this would like to be scrutinized
from, which are the simulations that will be presented.
Mr. Benky went through his visual photos. He pointed out that there are no fences on slopes, and no building on
slopes. He stated that a 3-D model of the entire surface area in essence mimics almost an infinite variety of so-
called sections through the area for evaluations.
Dean Alexander, a registered civil engineer and geotechnical engineer, stated that he has done extensive work
on the Canyons project geotechnical, as well as on other jobs along the hillside. He stated that with regard to the
stability of the hillside itself, several things are associated with instability, including weak support soils,
oversteepening slopes, and slope erosion associated with water. He stated that the soils at the hillside consist of
very dense gravely sand, silty gravels, which are not classified as weak. He stated they did not find any clay
which would suggest weak soil. Therefore, he believes there is a very strong stratum of foundation soils which are
acceptable to soil stability. With regard to over-steepening of slopes, the majority of the slopes out at the
Canyons and the hillside are less then 2 horizontal to 1 vertical, which is 50% slopes, but the California Building
Code allows 2 to 1 slopes without any special geotechnical investigation. Therefore a 50% slope is nothing out of
the ordinary, and the majority of the slopes constructed in California are 50% slopes. Mr. Alexander stated that
with regard to some of the slopes that are greater than 2 to 1.5, which would be 75%, will sometimes move during
a seismic event, and they are providing mitigation measures to minimize this by requiring slope setbacks, or
modifications to those slopes.
Mr. Alexander pointed out that Kern County has issued a seismic hazard atlas, which shows areas of landslides,
and there are no landslides shown in the map for the Canyons project or the surrounding projects. In closing, Mr.
Alexander stated that the Hillside development can be performed safely with proper engineering controls, and
having a no build zone, because slope instability is an unfounded recommendation.
Gordon Downs, represented by Mr. Howry, stated that he has been a resident of Bakersfield since 1945, and for
the last 30 years with the help of his family he has owned and operated Downs Equipment Rentals here in
Bakersfield and in Santa Maria. Mr. Downs stated that in December 2003 a friend and him formed a limited
liability company named DKS, and in January 2004, DKS purchased 40 acres of land in the foothills of NE
Bakersfield. He pointed out the location of the 40 acres. He indicated that before purchasing the land they
conducted a study of the property consistent with that of an ordinary and prudent buyer, and the only thing that
this property didn't come with was a crystal ball. He stated that the property was zoned R-1, and there were no
restrictions in the City's 2010 General Plan that would have prevented them from subdividing and building
residential housing on the property. Mr. Downs indicated that they saw no red flags posted anywhere that would
indicate how the City would attempt to impact this property at a later date. He stated that according to their
engineer, if the new Hillside Ordinance is adopted, their 40 acres will become totally unbuildable, as 60% of the
land falls into a slope protection zone, and therefore that portion is unbuildable. He stated that the balance of the
property is unbuildable because it falls into the Class I and Class II view shed zone. Mr. Downs further stated
that these three classes of new zoning, if approved, will make 100% of their land unbuildable, according to
Pinnacle Engineering. He stated that it seems unfair to have their property's value reduced to essentially zero by
a new Hillside Ordinance, while a number of other similar properties in the area have been given final subdivision
maps, and are being built out as we speak. Mr. Downs stated that his advise is as follows: had the Hillside
Ordinance been included in the land development regulations of the City before they purchased the property,
there would be no problem now, because DKS would have decided not to purchase the 40 acres, and that to
change the rules of development after their property was purchased, and a tentative subdivision map filed, makes
developing land in Bakersfield very risky and unfair. He stated that these kinds of surprises drive the cost of
development and housing much higher as the added engineering and legal fees mount. Mr. Downs stated that
when the Planning Commission makes its final decision on the merits of the Hillside Ordinance, he hopes that the
commission will modify the ordinance so that land owners and the community will be fairly treated.
Chad Vega, stated that he has no financial interest in the land, nor is he a recreational trespasser. He stated that
he is here because he represents Kern Citizens For Property Rights which has a broad-based membership, and if
this ordinance were to pass its membership would undoubtedly continue to grow rapidly. He further stated that he
Planning Commission — July 6, 2006 Page 12
is present on behalf of Gordon Downs, and as a person who knows him. Mr. Vega stated that in spite of what the
California Supreme Court may say about legislation, and what other counties may or may not be doing, he urged
the Planning Commission to use the power they are given sparingly. Mr. Vega stated that with regard to Mr.
Downs, he has lived in the community for a very long time, and has done well in this community, and now has
bought land, which is being taken from him by regulation. Mr. Vega read from the Constitution which states, "No
person shall be deprived of life, liberty or property without due process of law, nor shall private property be taken
for public use without just compensation." Mr. Vega stated that what the City is proposing with the new
ordinance is a taking no matter how you define it; whether there is a park or school there or not, because they are
taking something via regulatory fiat, and he is not being compensated. Mr. Vega pointed out that Mr. and Mrs.
Downs are nice people who bought land, which is not on the bluffs, they have never been consulted with by the
City in regard to the use of their land, the property was zoned residential when purchased and does not retain it's
value under this new ordinance, and just compensation has not been offered. He pointed out that if the Planning
Commission votes to recommend this ordinance they are voting to steal Mr. Downs' land and undermine his
constitutional rights. He stated that it is neither ethical nor moral, and frankly it should be criminal.
Clay Maynard stated that he and his wife are property owners on the bluffs, and indicated they may be involved in
this project longer than anyone in this room. He stated that when he and his wife returned to Bakersfield after his
active duty in the military, they wanted to invest in some property. He stated there was this property on the bluff
that nobody wanted because it was not good for anything, and at that time was not in the city limits. Mr. Maynard
stated they bought the property, and as time went on a number of things occurred. He said the property came
under digging and grading for rocks and nobody cared about the aesthetic value of the property, and the rock
mining people wanted to go out there and dig big holes and pull the rocks out and they left with the promise that
they would fill everything in, and make it nice. However, that never happened. He said even today the aesthetics
are horrible. He stated they were waiting to get water out there so they could build. Once they finally got water
nobody was willing to take on a project like this, and then they met General Holding, and they asked General
Holding if they would be willing to do the work on their property and work out an agreement so they would wind up
with lots that were buildable. He said they made an agreement where General Holding took over the property to
develop it and when that's all done he would get the lots. Mr. Maynard stated that if you go through with the
ordinance they lose all of their property, and according to Mr. Movius' presentation it is not legal to take
somebody's property where they have no use of it anymore. Mr. Maynard further pointed out that what led up to
them choosing this property was that the City and one councilperson told them at the time, and they were
assured, that the ordinances were going to be based on the State of California ordinances for the area, and he
believes that is what was adopted. Mr. Maynard stated that the first time he heard the term view shed was from a
member of the Sierra Club that commented that private people should not be allowed to have property with a view
because it should be made public. Mr. Maynard stated that the difference between Americanism and Communism
is property rights, and in this country we do have property rights. He asked the Planning Commission to
reconsider the ordinance, and urged that the guidelines that the environmentalists and others are pressuring the
City to use are far out of balance on this project. He asked the Planning Commission to look at the ordinances
and not approve it tonight, because if they lose their property there is no choice but to take whatever action they
have to take, and they don't want to do that, because they want to work with the City.
Michael Turnipseed, representing the Kern County Taxpayers Association, stated that from a taxpayer's point of
view he shuns the potential litigation, and takings, and potential loss of government revenue and taxes because
the City is taking property away from the private taxpayer, and taking it into the government domain. He stated
that the Planning Commission needs to take a deep look at the financial impacts of this ordinance, and what
impact it will have on the community. He stated that this community has a lot of needs, and one of them certainly
is not purchasing land at top of the market and expensive litigation.
Adrian Moore with the Reason Foundation stated that this regulation is a case of a fair amount of good intents
that have gone too far. He stated that the visual resource area and view shed aspects of the regulation are
essentially an aesthetic regulation. However, aesthetic regulations are a very delicate area, and a very delicate
planning tool. He said it is different when looking at aesthetics on a community-wide level because we are a
diverse community, and we cannot assume that this entire city agrees on what color houses should be, etc. He
pointed out that applying aesthetic regulations are more appropriate in the General Plan process which is the
collaborative process where all the stakeholders have lots of opportunity to look at the issues, and provide a lot of
input and reach some kind of community consensus, or at least broad agreement on aesthetic issues. He pointed
out that it is not the right place to try to do these fairly dramatic aesthetic issues outside of that collaborative
process. Mr. Moore pointed out that given that much of this land, and the use of this land, was explicitly
considered in the creation of the current General Plan and many of these issues were discussed and did not
Planning Commission — July 6, 2006 Page 13
arrive at the place there are at today on these issues. He stated the plan explicitly talks about how they will
approach open space as a collaborative process in cooperation with the land owners, and clearly this current
approach violates the open space elements. He further stated that it is very dangerous to undermine the General
Plan process in this way, as people will not be motivated to participate if the City is not staying consistent with the
previous General Plan, especially when it's big broad sweeping bold and very direct statements that were arrived
at in the General Plan. Mr. Moore further commented about Commissioner Lomas' concern for the mineral right
owners' perception of their rights in a previous agenda item, and there is a parallel with this current agenda item.
Mr. Moore stated that if many property owners feel like their land is being taken, then you've got to think that there
is something of concern as it is not just one property owner, but several. He pointed out that the alternatives
provided in the ordinance are pretty erroneous and unrealistic.
Mike Kaia, representing DKS, the Taribeno's and the Canyons, stated that he is addressing the CEQA issues
related to the initial study and the Negative Declaration. He stated that written objections have been previously
filed by his office with the Planning Commission on or about June 29, 2006. He stated that his clients' position
regarding CEQA is that an environmental impact report must be prepared before there is any enactment of this
ordinance. He stated that CEQA requires the preparation of an EIR whenever substantial evidence supports a
fair argument that an ordinance will cause potentially significant adverse environmental impacts. Therefore,
CEQA sets a low threshold for the required preparation of an EIR. Mr. Kaia stated that the proposed revision of
the Hillside Ordinance clearly falls into the pervue of CEQA. He stated that Public Resource Code Section 21080
states that, "this division shall apply to discretionary projects proposed to be carried out or approved by public
agencies included, but not limited to, the enactment and amendment of zoning ordinances." Mr. Kaia stated that
the City's initial study and Negative Declaration are inadequate. Mr. Kaia pointed out that the agricultural
resource impacts caused by the ordinance is set forth in the initial study at page 9 of 15, and includes the
following objectionable statement: "The amendment to Bakersfield Municipal Code Chapter 17.66(h)(d) Hillside
Development Combine Zone would not significantly impact development potentially in northeast Bakersfield so
that development would be displaced to agricultural land resulting in a loss of agricultural resources.
Approximately 146 acres in northeast Bakersfield would be affected by this amendment requirement of setbacks
for buildings for both visual preservation and to prevent hillside instability and land slides. These requirements
would not result in displaced development that could be replaced by agricultural land because the appeal of
developing on hillsides with slopes and vistas is not replaced by the flat lands required by agriculture. Areas
restricted from development by this amendment for slope protection, approximately 1,178 acres, are those which
would be difficult to develop, such as steep slopes and hills and ridges, resulting in little developable land that
could potentially be displaced. The conversion of farm land as a result of displaced development is less than
significant." Mr. Kaia stated they strongly dispute the statements in the initial study, and specifically: 1) that only
46 acres are affected by the requirement of setbacks; 2) that the setback requirements are for the purposes of
preventing land slides; 3) that because of the appeal for developing on hillsides is different from the appeal of
development on flat agricultural land that there would be no displaced development; 4) the slope protection areas
would be difficult to develop; and 5) that the conversion of farm land would be less than significant. Mr. Kaia
pointed out that Pinnacle Engineering calculated the total acreage of land that would be affected by the proposed
slope protection area, as evidenced by the slope protection impact map, to be over 1100 acres. He pointed out
that within that acreage the estimated number of residential units that could be impacted by the proposed slope
protection area is 5362 units, stating that a foreseeable result of the loss of so many residential units will be the
conversion of further agricultural land to residential development. Mr. Kaia further stated that Pinnacle
Engineering has also estimated the number of lots within the Canyons development that would be lost due to
primary and secondary view sheds and slope protection areas, is approximately 50 lots for the Canyons, DKS will
lose around 50 lots, of which about half are related to view shed, and half are related to slope protection areas.
Mr. Kaia pointed out that the City's own internal documentation demonstrates that the initial study and the
Negative Declaration are inadequate, and directed the Planning Commission's attention to a memorandum from
City Development Services Director Jack Hardisty, dated April 8, 2003 titled Cumulative Effects of Bluff
Development, which states that the new Hillside regulations could stall development, or even stop development,
because of lost opportunities that get satisfied by development activities in other parts of the community. Mr. Kaia
pointed out that if the City accepts the initial study and adopts a Negative Declaration without at least considering
that the conversion of agricultural land is a foreseeable result of displaced development in the northwest, that
course of action, in their view, is subject to CEQA challenge. He further pointed out that the initial study also
states, "Northeast Bakersfield has dramatic bluff along the Kern River Valley, and hills that have been identified
by the City of Bakersfield to be areas of visual resources." Mr. Kaia stated that since the revision of the Hillside
Ordinance has not yet been adopted, the question is where and when has the City identified the hills in the
northeast to be areas of "visual resources?" Upon review of the 2010 General Plan in an effort to find the City's
Planning Commission — July 6, 2006 Page 14
identification of hills as visual resources, no such reference to hills exists or could be located. He stated that it is
curious, however, that in the goals and policies of the open space element of the 2010 General Plan, there is a list
of five policies addressing how to develop in ridge lines, in hillsides and in the bluffs. He pointed out that
specifically, at page 6-2, titled "Goals and Policies"the five policies are set forth, which include: 1) development of
ridge lines within the planning area should consider natural topographic constraints, 2) hillside development
should exhibit sensitivity and be complementary to the natural topography, 3) require the use of grading
techniques in hillside areas that preserve the form of natural topography and ridge lines, 4) development location
and sighting should be sensitive to its relationship to the Kern River, 5) development on or adjacent to bluff areas
should complement the natural topographic integrity of such areas.
Mr. Kaia stated that while the General Plan does state that the development on or near ridge lines or hillsides
should be sensitive to topography, there is no reference in the General Plan to any hillsides as being visual
resources. He further pointed out that there are no specific hills or bluffs designated in the General Plan, except
the 30% or steeper slopes that are categorized as such on the land use map, and these slopes may be developed
according to the General Plan. He stated that absent some sort of prior identification of the visual resources
referenced in the initial study, the initial study itself is factually insufficient. He pointed out that the initial study is
simply adopting the provisions of the "not yet enacted" revised Hillside Ordinance to justify the City's position that
an EIR is not necessary.
Mr. Kaia concluded by stating that these comments, as well as their filed written objections on or about June 29,
2006, present a fair argument that the proposed ordinance will be potentially the cause of significant
environmental impacts, including, but not limited to significant conversion of farm land due to the potential loss of
up to 5362 units of housing. He stated that the proposed ordinance is flawed under CEQA and should not be
approved.
David Heitt stated that he sat through this hearing tonight, and reminded the Planning Commission of the rights of
these people who own property in the areas that are involved are being seriously impacted and should be
considered before a decision and vote is made.
Marilyn Wilkins Maynard stated that she is a property owner and that her father was a builder and developed the
beautiful Skyline Lacresta area, and developed parts of Panorama and to this day they do not have adequate
parking for all the people that want to walk the park that has been built along Panorama Drive with the walking
paths. She stated that in the past they pleaded with the City and the mining people to not leave their property
scarred, but nobody cared. She stated that they tried over and over again to get their side of the story in the
newspaper but were always denied until it was after the fact. However, the same people were allowed to run their
articles over and over again. She stated that they stopped at the Planning Department to talk with Mark Gauthier
15-20 years ago, and was told by him that the City was tired of building on all of the agricultural land in the
Southwest, and encouraged her and others to build on their property in this area. She pointed out that in the
previous project on Coffee and McKee which was approved did not have any trails and did not have any open
space. Mrs. Maynard pleaded with the Planning Commission to talk with more people and take another look at
this ordinance before a decision is made.
Karen Norton, from Kern Citizens for Property Rights, pointed out that when you think about developing land, or
not developing land, one has to keep in mind that there has to be win-win solutions. She stated that this Hillside
Ordinance is not a win-win, and the people that win are special interest groups, and the people that lose are her
friends, the Downs who will lose 100% of their land and there is no plan to compensate them. She pointed out
that back east she is a member of an organization that forms endowments and trusts and they pull their money
together to make the property owner an offer for the land that they want to purchase for their special interest. She
stated that if there is a special interest group that considers this property sacred she suggests that they pull their
money together and buy the property.
Ken Mettler stated that he is in support of the property owners. He stated that in the City of Visalia he purchased
property that was zoned multi-family, which was next to the St. John's River, and spent a substantial amount of
money developing the property. He went on to say that subsequent to that the City placed a repairing inhabitant
easement along his property, and in that easement ultimately they built a bike path, which impacted the
development potential of his property, and he had to go back to the drawing boards. He stated thereafter they put
a storm drain bisecting his property, and again there was a determination that there was not a taking, and
therefore he received no compensation. He stated that seven years later, struggling not able to develop the
property and make it feasible, his property is now a public park. He stated that he was very fortunate in that he
Planning Commission — July 6, 2006 Page 15
received about $.30 on the dollar, and his attorney told him that he was amazed that he got that amount. Mr.
Mettler stated that he lost several hundred thousand dollars, and he is the individual who took a risk, but the risk
came from his own government and not the marketplace nor the competition. In summary, Mr. Mettler stated that
he has always been proud of the City of Bakersfield, and the people they entrust in public positions, that they truly
take their oath of office to uphold the Constitution and take it very seriously and in particular respect the rights of
private property owners, because it is the cornerstone of our free nation.
Mr. Sherfy asked for a Stipulation that the City could obtain a hard copy of all computer generated presentations
this evening so that the record is complete. Mr. Howry stated that this stipulation would be fine as long as they
can also have a copy of the City's presentation as well. Mr. Sherfy agreed.
Tom Morgan, a resident of Bakersfield, stated that the argument that this is a taking is a false argument. He
stated that City Staff properly characterized this initially as not a taking, and City Staff is quite capable, and as risk
adverse as most municipal staff are. He stated that he does not believe the City would make the statement that
this is not a taking unless they had a great deal of information and research and analysis to back that statement
up. He asked the Planning Commission to consider the following when discussing "a taking": Melagra Rick
Partners vs. City of Pacifica, 62 CalApp 4th 108. He further stated that the police powers of the government
characterized in a negative light as if it inferred something like a police state, and the action that the Planning
Commission is considering, is far from it, as the very simplest of regulatory action is taken by a government are
based on the police powers and they certainly are not notorious or behind closed doors, or negative in any
fashion. Mr. Morgan stated that the Planning Commission is considering an ordinance which is a valid exercise of
the powers of government to regulate the activities of its citizens for the better welfare of the community. He
strenuously argued that this is not a taking and is a valid use of regulatory powers of government. He concluded
that on behalf of his fellow trespasser, his wife, for the last 20 years in the hills outside of Bakersfield, he would
ask the Planning Commission to approve the ordinance as is, and withdrew his written comments to Staff to the
extent that they would interfere with the passage or consideration of the ordinance that he submitted earlier.
James Nickel, representing Nickel Family LLC and Rio Bravo Ranch, stated that Nickel Family LLC owns
approximately 5,000 acres of land within the Rio Bravo area in northeast Bakersfield, and that all of this land is
either located within the jurisdiction of the City of Bakersfield, or the SOL He stated that they are pleased that the
City has listened to many of their comments about the revisions to the Hillside Ordinance. He stated that they
support a strict enforceable hillside development regulation, as long as there are clear and equitable and based
on sound engineering practices, and are not so onerous as to preclude economic and beneficial development of
the property. Mr. Nickel stated that they feel that the proposed revision of the ordinance accomplishes the City's
goals of preserving the selected hillside view sheds from public freeways, expressway, arterial roadways while
also allowing the land's owner the flexibility to develop his or her property in an economically viable, yet
sustainable manner. Mr. Nickel stated that there is one part of the ordinance that they would like to have altered
with regard to section 17.60.0.10 part 5 entitled "Slope Protection Areas," which states that, "slope protected
areas are those slopes with an Hillside Development area due to physical constraints and aesthetic value are to
be left in their natural state with no structures or fences allowed on the slopes. Areas identified as slope protected
areas shall be identified as non-buildable lots on subdivision maps." He stated that they are of the opinion that if
the primary and secondary view sheds are defined by their visibility from freeways, expressways and arterial
roadways, then slope protected areas should also be defined likewise as such. He continued to state that minor
slopes in areas not visible from major public roadways should not be included in the slope protected areas. He
stated that they fail to see the public's benefit of protecting non-visible slopes in the public's benefit visibility is
defined from major public roadways. He commented that defining the public's view shed from local roads and
home sites would render much, if not all of the hills, in the Hillside Development area off limits to development,
and further feel that visible slope protected areas should be defined as 15% or greater.
Mr. Nickel stated that they feel that the revised draft ordinance is a major step in the right direction of a workable
hillside ordinance that the Nickel Family LLC can support. He encouraged an alternative compliance mechanism
that is incorporated into the draft ordinance, and would allow use of the development agreement, specific plan, or
planned unit development as a vehicle for assuring that the goals and objectives of the ordinance are met, while
allowing for a high quality master planning of the larger parcels of our land.
Mr. Nickel lastly pointed out that if the slope protected areas are defined as 15% or greater, than perhaps some of
those polygons that are on the Taribeno property, or the Downs' property would move around a little bit,
specifically where they were flat in those pictures. He requested the Commission to address this at some point.
Planning Commission — July 6, 2006 Page 16
Judy Heitt stated that she lives in the Kern River Valley, and stated that while they are out of the City's jurisdiction,
it does effect where and how they live. She stated that the City's SOI extends to their area, and includes plans for
the Kern River Valley to address the very things that are being discussed tonight; the future of development,
densities, commercial. She stated that they are surrounded by a lot of public land and people say that it is an
open case. However, the forest service has talked about selling some of the property. She stated that the City's
air quality problem is rapidly becoming their problem. She stated that Bakersfield's air quality is detrimental to
their quality of life in the Kern River Valley, and growth in northeast Bakersfield impacts their air quality. She
asked the Planning Commission to consider what happens on the other side when they make a decision on land
use.
Gordon Nipp, with the Sierra Club, stated that they support the City's ordinance and would like the Planning
Commission to pass it tonight. He stated that the reason some of the view sheds have been corrupted is because
the City did not have a good view shed regulation at the time, and therefore that doesn't mean that all view sheds
should be corrupted. He stated that one reason for an ordinance is to protect what is left. He said the question is
not whether people should have a view, but rather the people down below the bluff who use the area below the
bluffs as a recreational resource should be subjected to seeing someone's house up there. Mr. Nipp stated that
there are a number of ways to deal with displaced Ag land issues raised. He stated that the Sierra Club supports
this ordinance, although they feel that it could be stronger.
Charles White the president of Kern River Valley Revitalization stated that the Planning Commission has a copy
of a letter he submitted to Mr. Movius. He stated that tourists pass through Bakersfield to the Kern River Valley,
and what they do with the Hillside Ordinance will be very important to them, because it will effect the experience
that the tourists have as they come to experience the Kern River Valley. He asked the Planning Commission to
carefully consider the good job that Staff has done, and to adopt an ordinance that will be fair to everyone.
Barry Mann, stated that he lives in the Kern River Valley, and he endorses the previous statements made in
support of this ordinance. He stated that the Planning Commission should consider taking a look at the impact
should they not adopt this ordinance by considering Interstate 5 down into L.A. at the City of Castaic. He pointed
out that Castaic did not have this type of ordinance, and there are houses on the ridge line, and the ridge lines
have been lost. He stated that it is necessary to have aesthetics. He stated that if it is the case that property
owners will lose their land then that part of the ordinance should be reviewed.
Mauria Plite, stated that she is in favor of this ordinance. She stated that 5,000 homes is a lot of homes in this
area, and she hopes that the City will be able to answer some of these points. She stated that if it makes it safer
for people who build their houses to put them with a stronger standard, she supports that. She further stated that
if it saves for our community this very unique and beautiful view that the bluffs are, then she supports this
ordinance. She stated that she does not want these people to lose their property.
Will Winn commended Staff for putting together an ordinance that will be a good step towards preserving the
rustic beauty of the bluffs and the hillside areas of northeast Bakersfield, as well as safeguarding the facilities and
homes that will be built within and on these areas. He further stated that it will adjust and correct the development
and growth zoning and policies of the past, which need adjustment. He stated that he feels the need for this type
of zoning extends considerably beyond the bluffs, and more specifically the vast region of hillside and arroyo
topography that are not being addressed by this ordinance as proposed. He stated that if compensation needs to
be given for properties that are negatively impacted by this ordinance then he would not object.
Marcie Cunningham, on behalf of Kern Equestrians for Preservation of Trails, stated that it is important that
individuals not be stereotyped depending on which side they address an issue. She stated that the approval of a
specific trail plan for this area was a step in the right direction, and the approval of the hillside development
ordinance as presented tonight will be further progress in the right direction with regard to the development of this
land, and all hillside land in Bakersfield. She stated that this ordinance is not about taking away private property
rights, but rather is about responsible, reasonable and safe development, which in the end effects all of
Bakersfield. She stated that along with owning property comes responsibility, and sometimes we all need help in
determining just what that responsibility entails, which is why this ordinance is needed. She urged the Planning
Commission to pass the Hillside Development Ordinance as presented.
Dave Dmohowski, representing Premier Planning Group, and also speaking on behalf of the Legislative
Committee of the Building Industry Association of Kern County, stated a letter has been submitted regarding their
concerns. He stated that they were here a year ago with concerns about some major technical flaws and
Planning Commission — July 6, 2006 Page 17
incomplete and unclear terms in the early draft of this ordinance. He stated from a planning perspective the
northeast is a different area for preservation as you are trying to preserve the interesting views and the natural
land forms that occur in that area. He stated that almost any city in California that has any kind of hillside
topography or is under any growth pressure has adopted some form of hillside development regulation. He
commented that the city got behind the curve in terms of getting a handle on the grading standards for hillside
development. He stated that good hillside development requires collaboration among the disciplines of land
planning, urban design, geology, civil engineering, and landscape architecture. He went on to point out that the
hillside development standards need to start from clearly stated general plan policies and goals, as well as have a
clear and good definition of terms, and incorporate a reasonable amount of flexibility to take into account the
tremendous diversity of aesthetic topographic and geotechnical conditions which exist in any hillside development
situation.
Mr. Dmohowski stated that they think it is unclear as to what the Fire Chief wants in the way of information about
surrounding conditions, and would like clarification with respect to 2 to 1 slopes in N1 on page 8. He questioned
whether this refers to natural slopes only or to manufactured slopes as well. He stated that with respect to the
drainage concept report it is required to give consideration to individual dwelling units and individual lots as to run
off and debris. He pointed out that in many cases when you are dealing with a General Plan Amendment or Zone
Change that very detailed project specific information is not available at the General Plan level, where at the
zoning level it typically comes along later in the form of a tentative tract map, and a conceptual grading plan. Mr.
Dmohowski further referred to the term, "extensive grading" on page 16, item B1, indicating it needs to be further
defined. He commented that while it is appropriate in a General Plan policy, this type of language in a zoning
ordinance tends to be vague and subjective. He went on to refer to the need for flexibility and stated the
ordinance now recognizes that in terms of allowing PLID's, development agreements and specific plans, that
there's now an alternative compliance mechanism set forth that is appropriate for the larger projects.
Mr. Dmohowski stated that their committee's greatest concern is with section 040, item M1, which requires a site
plan drawn to a scale at 1"= 100ft. or larger, showing pad elevations for all lots. He pointed out that in the case of
large master plan community, it is very uncommon for that level of detail to be available at the General Plan or
zoning hearing, and would typically come along later, and sometimes a year later in the form of a financing map
or tentative subdivision map for the first phases of development. He stated that they think that it imposes
significant risk and very extensive cost on the applicant of what they believe is a premature stage in the process.
Mr. Dmohowski also stated that the ordinance should be revised to require only conceptual grading and lotting
plans for General Plan Amendment and Zone Changes where the Tract Map is not being processed concurrently.
He pointed out that to do otherwise will encourage peace meal planning and development which is contrary to the
general intent of the ordinance. He stated that the City has an opportunity to review every grading and lotting
plan during the review of the tentative map.
Mr. Dmohowski stated that with respect to the "taking" issue, one aspect of the proposed ordinance that his
committee has not taken a position on, is the mapping of sensitive land forms, due to the fact that they don't have
site specific information on every single private ownership in that area, but clearly there's a very significant effect
of Exhibits B-1 and B-2 in terms of the right and ability of a property owner to enjoy and economic use of their
property. He stated that their committee strongly supports the principal that private property restricted for public
open space or recreational use deserves compensation at full market value, or compensation through a good faith
negotiated development approval process. He suggested that it may be time for the City to consider an open
space bond. He stated they encourage the Planning Commission to consider this ordinance not as a final
product, but a work in progress, and as the City gains more experience and confidence in the planning and
regulation of development in hillside areas, should be willing to consider periodic adjustments to ensure that it is a
fair, effective and workable planning tool.
Michelle Beck, from Bakersfield Bluffs and Open Space Committee, stated that she was amazed at the playing of
the facts the opposition presented. She stated that this is a very win-win situation, and a fair ordinance. She
urged the Planning Commission to approve the ordinance this evening. She pointed out that she believes the
photos shown prove that they very badly need to protect the remaining ridge tops.
Greg Iger stated he would hope to save the views of the majestic bluffs for generations to come. He stated the
tops of the bluffs should be lined with parkways, trails and open spaces, and move the stretchers back preferably
150 feet. He stated this would avoid the typical eyesores created in the foothills around Los Angeles. He pointed
Planning Commission — July 6, 2006 Page 18
out that with a stringent hillside ordinance they can retain the view and at the same time secure safety, and in the
long run make the development more attractive and valuable. He stated that it would be a win-win situation.
The public hearing is closed.
Short break taken.
Commissioner Lomas inquired if Staff could provide an opinion and direction on the numerous questions raised.
Mr. Movius stated that in light of over 2 '/2 hours of comments, and extensive written comments delivered, staff
would like the opportunity to run transcripts of this hearing, review the information provided, as well as all the
written and verbal information and would propose to continue this item to Monday, August 14th for a pre-meeting,
and Thursday, August 17th for a regular Planning Commission meeting. Mr. Movius stated they will provide
written comments before the August 14th date.
Commissioner McGinnis moved, seconded by Commissioner Johnson, to continue this item to August 14, 2006
for the pre-meeting and August 17, 2006 for the regular Planning Commission meeting.
Commissioner Tragish stated that he is in agreement with the motion, but pointed out that he would like to direct
the Staff to address in depth this issue of the taking, especially in consideration of the circumstances that were
presented concerning existing property owners over a substantial period of time. He stated that he would really
like to know what the Staff's position is on this, and what the existing law is on this, and what the alternatives are
so that they have something to look at.
Motion carried by group vote.
8. COMMUNICATIONS:
None.
9. COMMISSION COMMENTS:
Commissioner Lomas inquired if they can remove agenda item 7 from their books, to which Staff responded that
they could.
10. ADJOURNMENT:
There being no further business to come before the Commission, the meeting was adjourned at 10:15 p.m.
Dana Cornelius, Recording Secretary
JAMES D. MOVIUS, Secretary
Planning Director
July 26, 2006