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HomeMy WebLinkAboutSept 7, 2006 PLANNING COMMISSION MINUTES 0 ` Meeting — September 7, 2006 - 5:30 p.m. Council Chambers, City Hall, 1501 Truxtun Avenue 1. ROLL CALL: Present: Commissioners Lomas, Blockley, Johnson, Spencer, Tkac, Tragish Absent: Commissioner McGinnis 2. PLEDGE OF ALLEGIANCE: Commissioner Blockley: "Chair Lomas, I would like to make the following motion" Motion to move the Consent Calendar to be considered now followed immediately by Public Statements." Chair Lomas: "May I have a second?" "This is a group vote. All ayes. Motion passes." Chair Lomas: (Reads regular script for Consent Calendar and regular procedure.) Chair Lomas: (Reads regular script for Public Statement and regular procedure.) 3. PUBLIC STATEMENTS: Will be heard after Item 4. 4. CONSENT CALENDAR: 4.1 Non-Public Hearing Items 4.1a Approval of minutes for Planning Commission meeting of August 3, 2006. Commissioner Blockley stated that he did listen to the tape. Commissioner Tkac stated that he has listened to the tapes from previous meetings. Commissioner Blockley moved, seconded by Commissioner Tkac, to approve the Non-Public Hearing Items Consent Calendar. Motion carried by group vote. 4.2 Public Hearing Items 4.2a File No. 06-1213 Planning Director's Report regarding modification to an approved PCD; specifically, a request to modify an approved PCD plan to allow construction of a 3,091 square foot fast-food restaurant (El Polio Loco)with drive-thru services on a portion of a site zoned PCD (Planned Commercial Development). 4.2b File No. 06-1473 Planning Director's Report regarding modification to an approved PCD; specifically, a request to modify an approved PCD plan to allow construction of two 5, 170 square foot multi-tenant buildings for fast-food restaurants and outdoor seating areas on a portion of a site zoned C-2 PCD (Regional Commercial — Planned Commercial Development). Planning Commission — September 7, 2006 Page 2 4.2c Approval of Tentative Parcel Map 11547 For Condominium Purposes (M.S.Walker &Associates) 4.2d Approval of Revised Vesting Tentative Tract 6182 (San Joaquin Engineering) 4.2e Approval of continuance until October 19, 2006 Vesting Tentative Tract 6377- Phased (Smith-Tech USA, Inc) 4.2f Approval of Vesting Tentative Tract Map 6517 (San Joaquin Engineering, Inc.) 4.2g Approval of Vesting Tentative Tract Map 6521 (Pinnacle Civil Engineering, Inc.) 4.2h Approval of Vesting Tentative Tract 6663 (Pacific Engineering Associates, Inc.) 4.2i Approval of continuance until October 5, 2006 Vesting Tentative Tract Map 6766 (SmithTech/USA, Inc.) 4.2j Approval of Vesting Tentative Tract 6825 (McIntosh &Associates) Carl Lovegren requested removal of item 6.4, Consent Item 4.2f. Commissioner Tkac stated that he will vote in the affirmative, but abstain from voting on Agenda Item 6.6 (Consent Item 4.2h) as he has a conflict of interest. Commissioner Blockley stated that he will not vote on Agenda Item 6.6 (Consent Item 4.2h) to avoid the appearance of a conflict. The public hearing is closed, except on 4.2e and 4.2i which were continued, and 4.2f with the notation of comments made by Commissioners Tkac and Blockley regarding 4.2h. Commissioner Tkac moved, seconded by Commissioner Blockley, to approve the consent calendar as read. Motion carried by group vote. Commissioner Lomas pointed out that items 4.2f and 6.4 will be heard in their regular order. 3. PUBLIC STATEMENTS: Mark Hamilton spoke on NE building and compaction regulations. He stated he is concerned with the soil movement and the damages it has caused his neighborhood. Scott Howry requested that the time limits be waived with respect to his client and that he be permitted 15 minutes to speak on behalf of all of his three clients. Chair Lomas advised that the Planning Commission does not have time constraints. Mr. Howry stated that he represents John and Joseph Tarabino, DKS Investments, LLC, which includes Gordon and Joyce Downs, as well as the Canyons and General Holdings. Mr. Howry stated that there are two components in the ordinance that are flawed and need to be removed. He explained that those components are the slope protection designations and the view shed protection designations. He pointed out that these components have nothing to do with protecting the bluffs, and have nothing to do with promoting hillside safety. Mr. Howry pointed out that the City has stated that the "... criteria for designating slope protection areas was not based upon slope stability." He pointed out that these two portions of the hillside ordinance are about making sure that you can't see any homes from roads. He pointed out that this goes way beyond what this ordinance was suppose to be for. He does not think it is a good planning decision to keep people who are driving in their vehicles from seeing homes from Commanche, Alfred Harrell Highway, Morning Drive, Masterson St., Rancheria Rd. Fairfax Rd. and portions of Highway 178. He pointed out that homes are visible from those roads all over that area. He pointed out that he is not aware of any referendum made by the City which states that it is good Planning Commission — September 7, 2006 Page 3 planning to make sure no homes are seen from roadways. If there was such a referendum it would not pass because it does not make any sense. He asked the Planning Commission to question whether having a couple of City people drive around in their cars and decide which properties were going to be developed, and which were not is a good and fair planning process for the effected property owners, and to question whether two planning department personnel have that much discretion to impact the private property rights. Mr. Howry pointed out that the Downs have owned their property for a few years, and the Tarabinos have owned their property for over 40 years. He stated that the property has been zoned for over 20 years as residential property, and the 2010 General Plan specifically states that it is not the City's intent to preclude development on hillsides of even greater than 30% slopes. He pointed out that a lot of his clients' property is not greater than 30% slopes. He further pointed out that the General Plan also states that it is the City's intent to accommodate new development in the foothills in this area, and therefore the General Plan certainly is not a red flag. Mr. Howry also commented that they have received letters from the City in the last few years that states his clients are welcome to build on their property. He further pointed out that there is a letter as recently as 2001 stating that the current plan for the Morning Drive area is complete urbanization at the same intensity as Silver Creek, Polo Grounds and River Lakes Development. Again, Mr. Howry stated that those letters cannot be considered red flags indicating that there should be no development. Mr. Howry stated that since his clients have been told that they are welcome to develop this property, they have paid for many surveys including, geotechnical engineering studies, cultural resource surveys and reports, biological resource surveys, palentological resource surveys, hydrological, traffic engineering studies, visual impact analysis, air quality impact analysis, noise and acoustical studies, etc. Mr. Howry pointed out that they have applications that have been submitted and deemed complete and never received any letters from the City which told them that their property was going to be a no-build zone. Mr. Howry further pointed out that the first draft of the Hillside Ordinance had nothing in it about a slope protection area or a view shed protection area that said they were going to start declaring areas as no build zones. Mr. Howry questioned where the red flags are. He pointed out that there are no other ordinances that have pointed out complete no-build zones. Mr. Howry stated that with respect to Mr. Brae's slide show on Tuesday's pre-meeting, Mr. Brae showed hillside development in the L.A. County area, and landscaping to minimize any erosion problems. He stated that Mr. Brae stated that this was good hillside development, and Mr. Howry pointed out that this is what his clients are proposing to do. He stated that he does not know what there is about Mr. Brae's presentation that would sell this ordinance when this ordinance would specifically prohibit exactly what Mr. Brae presented. Mr. Howry stated that before this ordinance is voted on, everybody should sit back and put themselves in his clients' shoes. He pointed out that in this situation, all of the benefits of owning private property are being taken away, and the City states that it is not a taking and therefore there is no compensation provided. Mr. Howry stated that the two components of slope protection designations and view shed protection designations are not for health and safety reasons, nor do they have anything to do with protecting the bluffs, and has everything to do with not seeing homes from road, and therefore there is not sufficient justification to declare their property as a no-build zone, and be treated differently than other northeast property owners. He stated that the slope protection designations and view shed protection designations should be stricken from the ordinance because it is terrible precedent, and a bad decision for the City to pass this ordinance when portions of it unfairly trample on private property rights in order to keep homes from being visible from roads. He further stated that the whole of this ordinance is no better than the sum of its parts. Andrew Honig stated that a Hillside Ordinance is just another limitation that is entirely reasonable, and necessary to the quality of life. Matthew Hall stated he works for the Kern County Planning Department and from his personnel experience he sees many flaws in the ordinance. He pointed out that to put the main thrust on esthetic reasoning is ultimately flawed and may allow individuals to litigate this ordinance, and have it overturned in court. He said if that occurs he fears their development plans will move forward with no restrictions whatsoever. Mr. Hall further pointed out that basing the regulations on esthetic standard, those standards need to be very rigidly defined, and in the Planning Commission — September 7, 2006 Page 4 subject ordinance they are not rigidly defined. Mr. Hall stated the ordinance discusses view sheds from major roadways, but that no where in the ordinance does it specify where those sightings are suppose to take place, and therefore it could ultimately prove dangerous to the people who decide to live there. He went on to state that it can be requested that the developers do a geotechnical report for the project site, and generally speaking when taking samples on a parcel of land the samples are going to be homogeneous. However, on the bluffs you can see that they are not homogeneous, as they are made up of several different layers, and there can be stable layers on top of unstable layers. He pointed out that the developers could knowingly or unknowingly gain the system, by taking one sample and making generalities by that one single boring. However, 10 feet away there could be an entirely different result from another sample. Mr. Hall stated that depending on the rigidity of these reports, they may, or may not, be valid. He further pointed out that once you start cutting and filling, you start putting layers of stable earth up against layers that may be unstable, and then you have problems of fracturing. Mr. Hall further stated that he does not believe that a properly worked ordinance is considered a taking, and that this ordinance is any way indicative of the Kellow case. He further stated that basing an ordinance on esthetic criteria is ultimately flawed, and if litigated could prove to be the Achilles heel which would allow the entire ordinance to be overturned, which would allow the developers to move without any sort of slope protection at all. Madeline Elsea lives in northeast Bakersfield, and is co-chair of the Kern Audubon Society. She stated that the Hillside Ordinance seeks to preserve the character of the bluffs for the benefit of humans and the natural community. Renee Donato Nelson representing Clean Water and Air Matter stated they are in support of the ordinance. Craig Smith with Bakersfield Bluffs and Trail Committee stated that this is not a perfect ordinance, but it does bring about the warning signs on development and this is extremely good in that it will show red flags that would not have been brought out before. He stated that in response to Mr. Howry's comments about no-build zones, his clients will be able to build if his clients want homes to be there. He stated that the ordinance does not prevent any development. Michelle Beck with Bakersfield Bluffs and Open Space Committee concurs with Mr. Smith and urged the Planning Commission to approve this ordinance, and stated that it is the City's obligation to protect the taxpayers' money, as well as the publics' health and safety. Rich O'Neil described a water problem on the bluffs he observed east of Manor Street. Clay Maynard stated they would like to build a home out in this area, and he never thought he would have to fight for his property rights. He commented that"view shed" is a nebulous thing to think that people can say they want to prohibit you from doing on your property what you want to do, and tearing out your dreams so they can give someone a better view while driving along a freeway. He stated that he cannot understand that because somebody says that their need for a view that they subjectively think is better than somebody else can take property away. He pointed out that when you take somebody's property away from them there should be a good reason, and not just because some activist wants to take their property. He further pointed out that initially the City and County wanted to buy some of his property for open space, and then somewhere down the line discovered that if they used funds to purchase the property for open space then it could not be used for bicycling, running, equestrian, etc. He stated that it is not right for the City to take his backyard so the public can go through it. He stated that he is very thankful that General Holdings helped him out to get through all of the red tape. He read the definition of"socialism"from the dictionary. He concluded that if he cannot build on his property, it is a taking. Mr. Maynard replayed portions of previous meetings. He then urged a no vote on the ordinance. Dave Cross, an architect, stated that he objects to the Hillside Ordinance, and commented on some other illegal imminent domain issues that the City is potentially facing. Arnold Anchordoquy, attorney with Clifford and Brown, stated they represent the City of Bakersfield in what is called the Tarabino law suit. He stated that he wanted to comment on some of Mr. Howry's remarks in his August 24, 2006 letter to the Planning Commission. He referenced page 5 concerning the Tarabino lawsuit, and stated that Mr. Howry unfairly states what that lawsuit is about. He pointed out that the City has not acted inconsistently Planning Commission — September 7, 2006 Page 5 with the written promises. Mr. Anchordoquy further stated that Mr. Howry took Mr. Movius' deposition out of context, and pointed out that the issues in the Tarabino case are unlike the issues set forth in Mr. Howry's letter. A break is taken. 5. Hillside Development (HD) Combining Zone Amendment (Negative Declaration on file) (Item previously continued from July 6, 2006 to August 14, 2006 and then from August 14, 2006 to September 5 & 7, 2006). (Note: The public hearing for this item was closed on July 6, 2006). Staff report given. He referenced a 1979 Land Use & Circulation Plan for the Rio Bravo Annexation area, and that plan recommended that a hillside ordinance be adopted, and pointed out that the ordinance would have limited the number of units based on slope. Commissioner Blockley stated he listened to the tape, but was not able to review some of the reports from the pre-meeting, and requested that Chief Fraze present his report. Commissioner Tragish paraphrased Mr. Howry's statement that the only purpose for the slope protection and view shed protection was aesthetic reasons and thereby was not sufficient in and of itself to support the Hillside Ordinance, and asked if Mr. Movius had a response to that statement. Mr. Movius responded that you could create an ordinance that didn't have any other elements in it other than to set aside areas that are unique to the community for aesthetic reasons. Mr. Movius stated that aesthetics have been deemed by both US Supreme court and the California court in different cases as being a legitimate public purpose, so the ordinance is valid if it only uses aesthetics. Commissioner Tragish inquired if other jurisdictions also have these various types of slope protection areas of view shed as is projected in the Hillside Ordinance. Mr. Movius referenced the city of Brea, city of Marietta, city of San Bernardino, city of San Rafael, city of Westlake Village, city of Santa Clarita, and city of Los Gatos. Commissioner Tragish further inquired about the comments made by a former planner who stated that the Hillside Ordinance may be deficient to the extent that the definition of where they located the sightings for the view sheds is not clear. Mr. Movius stated that the view shed point is 4' above the level of the road as best as their computer could determine it in the center of the roadway. Commissioner Tragish commented that he thinks the Hillside Ordinance is very clear in stating that it is there to protect against improper development of hillsides and slopes. He stated that the documents presented by Mr. Movius clearly indicate that in and of itself an aesthetic premise for the ordinance is appropriate, and that it has been allowed in other jurisdictions. Commissioner Tragish further pointed out that they don't want to wait until something happens to address a Hillside Ordinance. He also addressed the open space issue pointing out that Mr. Howry has taken the issue of open space and boot-strapped it into the Hillside Ordinance as basically being a grab for open space. He stated that this is mixing apples and oranges as the open space provisions of the GP talks about property that has no economic use that will be used just for open space. Commissioner Tragish pointed out that the Hillside Ordinance does not prevent any ability to build at all. He further referred to Mr. Howry's comment that General Holdings had relied on existing zoning and spent thousands of dollars on their project on reliance of existing ordinances, and pointed out that the area in question has not really been addressed until the last couple of years, and has been prompted by the enormous amount of development in Bakersfield. He stated that things change. He stated that when you buy property in an area like this you know that not all of the pegs are going to fit, and you can have potential problems. He further stated that he thinks that the topography of the area puts the investor/buyer on notice of the problem. He also pointed out that of the studies that allegedly were done; he is not clear how many of those plans were used, or even if an EIR is complete at this point. He pointed out that there is probably a significant amount of the studies that can still be utilized in conjunction with the provisions of the Hillside Ordinance. He further noted that General Holdings has been at this for three years, and they still don't appear to have a significant amount of stuff completed. Commissioner Tragish stated that the allegation that the ordinance could not be applied to General Holdings because their application for the tentative map was approved prior to the presentation of the Hillside Ordinance, and he pointed out the exceptions and the applicability of those exceptions. Planning Commission — September 7, 2006 Page 6 Commissioner Tragish further stated that with regard to the allegation of a taking of property and the inability to build with the Hillside Ordinance, he does not perceive the Hillside Ordinance to say this. He pointed out that the Hillside Ordinance is saying that they are going to preserve some of the hillsides and have regulations about the cut and fill the property. He further stated that in Section 17.66.20(10), it points out that there is various mitigation to assist the developer, and Section 17.66.20(8) states that where it can be demonstrated that the imposition of the standards in the Hillside Ordinance would render an existing parcel (created prior to the adoption of this ordinance) of land unbuildable, and create a loss of all economic use, or where the development exhibits innovative and/or exceptional community benefits which cannot be realized through imposition of standards contained in the Hillside Ordinance, development consistent with the General Plan may be allowed, subject to the following provisions. Mr. Tragish stated that the way the Hillside Ordinance is configured, if in fact you cannot build anything and have no economic use left, you can come back and you can use the various devices or techniques to get the development closer to what the developer wants. Commissioner Tragish further referred to Section 17.66.040 which allows developers to propose alternate methods of view shed protection and gain developed land, which is another technique open to developers. He stated that after listening to all of the evidence, he thinks the ordinance is reasonable when compared to some of the drastic hillside ordinance through the state of California. Commissioner Tragish stated that he is disappointed in Mr. Howry's comments about this being a "land-grab," because he does not perceive this type of argument as having any place in this discussion. He stated that he thinks it also was an attempt to impugn or derogate the integrity of some Commissioners. Commissioner Tragish stated that the tape audio played by Mr. Maynard does not indicate who is talking and does not substantiate the date, and therefore cannot be substantiated. Commissioner Tragish stated that he supports the Hillside Ordinance. Commissioner Tkac inquired about Mr. Gauthier's comments in a letter stating, "We are going to build this with the intensity of Silver Creek." Mr. Movius responded that the context of that is completely different than what is being heard this evening. He stated that Mr. Gauthier was referring to the R-1 zoning in place at the time, and indicating in the letter that the zoning would allow a developer to develop as much as possible out in the hills and the bluffs. Mr. Movius stated that he would probably disagree with that because there were General Plan policies in effect at the time, since 2001, that do talk about restricting Hillside Development. Commissioner Tkac commented that he thinks the usage of"taking" is excessive, but stated that there appears to have been the intentions of building with substantial density, and now there's going to be less done with the property than the buyers, developers and builders thought. He inquired what the tax ramifications are on the property that is rendered "less then useable" now that a lot of the developers can't do the building that they originally thought they were going to do. Mr. Movius responded that with the Canyon's project where they are proposing that their development would allow for 1400 homes and they testified that the potential loss without doing anything to address the Hillside Ordinance and without taking advantage of any of the out clauses in the ordinance they may lose 100 homes. Mr. Movius pointed out that analysis from other jurisdictions showed that they would lose a lot more if it was somewhere else in California. Mr. Movius stated that the Canyon's project currently shows over 200 acres that they set aside for open space, mainly along the bluffs, agreed, including what was at one time the Maynard's property, that this ordinance would have no effect on that property. Mr. Movius stated that they are not changing very much with regard to the Canyon's project as far as area to be left as open space, although there is an impact on the DKS property, but that is with no attempt to address the Hillside Ordinance at all. Mr. Movius stated that he does not think the Hillside Ordinance is tremendously changing what the General Holdings property was doing as far as open space. Mr. Movius stated that generally the open space is not taken and it is left in the Homeowner's Association and the owner still has to pay the taxes on the property. He pointed out that if you look at the Canyon's project compared to what the Hillside Ordinance requires, there is not a huge difference. Commissioner Tkac inquired if they are dealing with the same geotechnical issues that are anything like that in La Conchita. Mr. Movius stated they are trying to find examples of Hillside failures, and what might be able to be prevented with good ordinance requirements. Mr. Burns also stated that any development closer to the bluff is adding potential for some kind of failure due to excessive moisture in soils. Mr. Movius stated that their soil types are not necessarily comparable, but the types of problems you could run into are comparable. Commissioner Tkac stated that he does not see the two areas as comparable. Planning Commission — September 7, 2006 Page 7 Commissioner Johnson stated that the Hillside Ordinance can be summed up in one word, "Overdue." He pointed out that there is a provision in the ordinance that specifically is in place to avoid a taking. Section 17.66.020C-A reads, "Where it can be demonstrated that the imposition of standards in this ordinance would render an existing parcel, a parcel created to the adoption of this ordinance of land unbuildable and create a loss of all economic use, or where the development exhibits innovation and/or exceptional community benefits which cannot be realized to the imposition of the standards contained in this ordinance, development consistent with the General Plan may be allowed subject to the following provisions." Commissioner Johnson states that the section further elaborates that some of those provisions allow for a PUD, PCD, a development agreement and optional design subdivision, or specific plan, which was specifically put in the ordinance to protect the rights of private property owners. He states that it does not create a "no-build zone," but rather creates a "build zone." Commissioner Johnson went on to state that he thinks the most important issues the ordinance addresses are the health and safety issues. He stated that he will vote for the ordinance. Commissioner Lomas explained her journey to come to her decision. She pointed out that there are risks with development and that the taxpayer is paying to get water and sewer to the area. She further pointed out that the BIA supports the ordinance after the appropriate revisions were made, and that the community has done everything to be very developer friendly. She also commented that the ordinance does not go far enough. She said she doesn't agree with Mr. O'Neil's comment that it is a giant step forward, however it is a step in the right direction. She also clarified the Planning Commissions purpose. Commissioner Johnson moved, seconded by Commissioner Blockley, to approve and adopt the Negative Declaration and to approve the amendment to the Hillside Development Combining Zone dated September 7, 2006, with findings set forth in the attached Resolution and recommend the same to City Council. Motion carried by the following roll call vote: AYES: Commissioners Blockley, Johnson, Spencer, Tkac, Tragish, Lomas NOES: none (break taken) 6. PUBLIC HEARINGS— Tentative Parcel Maps/Tentative Tract Maps 6.1 Tentative Parcel Map 11547 For Condominium Purposes (M.S. Walker&Associates) Heard on Consent. 6.2 Revised Vesting Tentative Tract 6182 (San Joaquin Engineering) Heard on Consent. 6.3 Vesting Tentative Tract 6377- Phased (Smith-Tech USA, Inc) Heard on Consent. 6.4 Vesting Tentative Tract Map 6517 (San Joaquin Engineering, Inc.) The public hearing is opened. Staff report given. Carl Lovegren with Las Palmas Petroleum stated they filed for a drilling permit and were approved on this location. He stated that they started their plans in early 2000, and has been in contact with the property owners concerning the drilling. He stated that early on they talked with the owners about a drill site, and horizontally drilling from one location so if they decided to develop the property that would be available to them. However, the owner chose not to do that. Therefore, they have made plans to drill six wells. Mr. Lovegren stated that he was unaware of this meeting and plans. He stated they have been approved for drilling, and they do plan on drilling five additional wells. He further stated that the mineral owners are contributing to the drilling on this property because of the confusion and whether the lease is a valid lease or not. He stated that he would be happy to work with the property owner and surface owner on planning for the wells. Planning Commission — September 7, 2006 Page 8 Susan Zimmerman, who works for the Griffin family, stated they agree with staff's recommendation. She stated that they have reserved almost two additional acres for the regional park site. Ms. Zimmerman stated that this is the first time that they've ever been notified of Mr. Lovegren's intentions for a drill island. She stated they have submitted a request for waiver referencing section 16.20.060 of the Municipal Ordinance, they own over 50% of the mineral rights, and there is no party with greater than 20% outstanding. She further pointed out that they own 64% of the mineral rights, and are fully compliant under Municipal Ordinance. She advised that WZI, and Bret Dawson from San Joaquin Engineering were available for any questions. Alan Wagoner, a geologist with WZI, addressed the reserve potential for the subject property. He stated that 10 producing wells were drilled on the property, as well as two injection wells. According to the production data from the California Division of Oil, Gas & Geothermal Resources, four of the producing wells have had no production since at least 1977, and the remaining six wells had very limited production, and at the time they quit producing were producing less than one barrel of oil a day. He pointed out that all of the wells are currently plugged and abandoned, and all facilities have been removed from the property, and there has been no production from the property for some years. Mr. Wagoner also stated that they looked at the potential for deeper production from the primary zone, and there have been a fewer deeper wells drilled around the periphery of the property, but there has been no significant oil shows, and no deeper production has been established on or anywhere near the property. Mr. Wagoner stated that in review of the data they concluded that it really has not proved developed producing reserves currently, and very little potential for any economic oil and gas production. The public hearing is closed. Commissioner Tkac inquired about Mr. Lovegren's application to Griffith Homes. Staff responded that to their knowledge no CUP has been issued by the City to have a drill site or drill island on this property. Staff indicated that Mr. Lovegren was probably referring to state agency permits. However, staff pointed out that to drill in a R-1 zone, which the subject property is, it does require a Conditional Use Permit through the City. Commissioner Tkac inquired if they are a mineral right holder or shareholder. Staff responded that it was their understanding that Las Palmas is a leaseholder, who essentially leases the right to access the minerals from the actual owner. Commissioner Tkac inquired how this application is any different from the Lundy project where he was the mineral right owner, and further commented that he wants to make sure the Planning Commission is not trampling on any rights. Staff responded that the subdivision ordinance provides several options on how a subdivider is to notice and treat mineral owners. She pointed out that one of the options that the subdivider selected was that a mineral right owner has control over 50% or more of the mineral rights, and in this case the subdivider owns 64%, and the remaining mineral rights are owned by about 15 other individuals, with no one individual owning more than 20% of the remaining rights, and therefore, this subdivider has met the criteria of the City ordinance relating to mineral interests. Commissioner Tkac further inquired if there is any potential for a flood basin in this flat area. Staff responded that they are not aware of any major drainage draws to this area. Commissioner Lomas asked to see Mr. Lovegren's permits. Commissioner Johnson referenced the comment that the gentleman from Las Palmas Oil was a leaseholder not a mineral right holder, and he asked Mr. Lovegren if he is a currently a mineral right holder or a lessee. Mr. Lovegren stated that he is a lessee, but there are a number of the mineral rights owners that would like to drill this property, and they are willing to pay to drill it themselves. He commented that the estimated reserves on this are approaching 90 million dollars, and 46% of that is a considerable amount of money, and the mineral right owners that have that 46% would like to recover that. Mr. Lovegren stated that he is speaking on behalf of Mr. Nichols, Mr. Armstrong, Mr. Wilson, John Afana, and David Afana. Commissioner Johnson inquired if he or his company has done the work on this property in the past. Mr. Lovegren stated that he has been involved with it. Commissioner Johnson inquired if there is an active lease currently, to which Mr. Lovegren stated that there was a lease on the property, and plans were made in early 2000 to go in and redrill the field. Mr. Lovegren stated that they believe that there's an active lease, and that the drills that were on there were abandoned in preparation for drilling new wells. He stated that Planning Commission — September 7, 2006 Page 9 after the equipment was removed from the abandoned wells they put up a fence to prevent them from going in and drilling. Mr. Lovegren pointed out that the surface owners will benefit from the drilling. Commissioner Johnson inquired what the collective percentage of ownership is of Mr. Wilson, Mr. Afana, Mr. Nichols and Mr. Armstrong. Mr. Lovegren responded that between the three of them it is approximately 11%. He stated that Mr. Afana is the majority owner, but is not exactly sure of the details. Commissioner Johnson stated his confusion comes in as they don't even know if Mr. Afana is the mineral rights holder, so it is possible that Mr. Lovegren might not even be acting on behalf of him. Commissioner Johnson inquired if Mr. Nichol, Mr. Armstrong and Mr. Wilson all told Mr. Lovegren verbally they wanted him to represent them at this hearing. Mr. Lovegren stated that they want to go in and drill this property. Mr. Lovegren stated that Mr. Nichols sent a certified letter to the Planning Commission requesting it be added as an exhibit. Staff responded that they did receive a letter at 4:00 pm. and they have not have time to do the research involved. Commissioner Johnson inquired of Ms. Zimmerman if the 64% mineral right holders have an active lease on this well. Ms. Zimmerman stated that in her opinion there is not an active lease. Commissioner Johnson stated that the Planning Commission cannot decide on whether there is an active lease or not, and given the fact that this application meets all the ordinance requirements of the City, he is inclined to pass this item. Commissioner Blockley inquired about the trails on the adjacent Track 6191 and this current item, and where the crossing might be from Lot A to Lot B. Mr. Dawson responded that their intent is to allow pedestrians to move through the subdivision, with a signalized intersection, and a linear park that will allow access to the regional park. Commissioner Tragish stated with regard to the lessee and the mineral rights, conditions 30 indicates that prior to recordation of the map, the applicant or developer will have all oil wells depicted on the proposed final map and will be leak tested and abandoned. He further pointed out that condition 31 states that if a previously undocumented well is uncovered or discovered, the applicant or developer is responsible to contact Division of Oil & Gas and take appropriate action. Commissioner Tragish stated that it appears to him that this application provides that there will not be any wells active on this project, and therefore, and in conjunction with the comments by Commissioner Johnson, it is obvious that either the applicant resolves his differences with the lessee and brings in a map with no oil wells on it, and if you bring in oil wells you're not going to get a map or permit. Commissioner Tragish stated that he is in favor of this application. Commissioner Johnson inquired of Mr. Sherfy about the letter from Mr. Nichols addressing denial of his access, and if this has any bearing on a reason as to why the Planning Commission cannot vote on this project tonight. Mr. Sherfy responded that he does not believe it would. Commissioner Johnson pointed out that whether it is determined that there is a lease or not, the project tonight does not deny any of the mineral right holders any of their rights. Mr. Sherfy stated that he reviewed the Permit to Conduct Well Operations referring to well "Afana 16", but Ms. Eng has indicated that she is not aware of any Condition Use Permit that has been secured through the city. Commissioner Tkac moved, seconded by Commissioner Johnson, to approve and adopt the Negative Declaration and to approve Vesting Tentative Tract 6517 with findings and conditions set forth in the attached Resolution Exhibit :"A", and including the amendment from Ken Trone, Park Construction Facilities Planner, dated September 6, 2006, and recommend the same to City Council. Motion carried by the following roll call vote: AYES: Commissioners Blockley, Johnson, Spencer, Tkac, Tragish, Lomas NOES: none Planning Commission — September 7, 2006 Page 10 6.5 Vesting Tentative Tract Map 6521 (Pinnacle Civil Engineering, Inc.) Heard on Consent Calendar. 6.6 Vesting Tentative Tract 6663 (Pacific Engineering Associates, Inc.) Heard on Consent Calendar. 6.7 Vesting Tentative Tract Map 6766 (SmithTech/USA, Inc.) Heard on Consent Calendar. 6.8 Vesting Tentative Tract 6825 (McIntosh &Associates) Heard on Consent Calendar. 7. COMMUNICATIONS: Ms. Eng stated that a copy of the draft EIR and specific plan for the West Ming project, which is a master development by Castle & Cooke, has been provided to the Planning Commission, and there will be a hearing on the adequacy of the EIR on October 5, 2006. Ms. Eng further stated that the next Planning Commission meeting is a General Plan Amendment cycle. She indicated that there will be a pre-meeting September 18, 2006. 8. COMMISSION COMMENTS: Commissioner Johnson thanked City staff and commenters for comments made on the Hillside Development Ordinance. He further stated that he maybe absent for the September 18th pre-meeting. 9. ADJOURNMENT: There being no further business to come before the Commission, the meeting was adjourned at 9:38 p.m. Dana Cornelius, Recording Secretary JAMES D. MOVIUS, Secretary Planning Director October 10, 2006