MINUTES FREMONT PLANNING COMMISSION REGULAR MEETING OF OCTOBER 25, 2012
CALL TO ORDER: Chairperson Bonaccorsi called the meeting to order at 7:00 p.m.
PRESENT: Chairperson Bonaccorsi, Commissioners Chugh, Lorenz, Pentaleri, Quan (left 10:50 p.m.), Reed, Salwan
ABSENT: None
STAFF PRESENT: Kristie Wheeler, Planning Manager Wayne Morris, Principal Planner Prasanna Rasiah, Deputy City Attorney Cliff Nguyen, Associate Planner Joel Pullen, Associate Planner Steve Kowalski, Associate Planner Dan Schoenholz, Projects and Special Projects Manager Amy Rakley, Associate Planner Alice Malotte, Recording Clerk Chavez Company, Remote Stenocaptioning Walter Garcia and Jay Christiansen, Video Technicians
APPROVAL OF MINUTES: None
DISCLOSURES: Commissioner Salwan, Commissioner Pentaleri, Commissioner Chugh, and Vice Chairperson Quan had no new disclosures. Commissioner Lorenz would give his disclosures when the item was heard. Chairperson Bonaccorsi visited the Item 1 site and spoken with Mr. Hamilton. He visited the Item 5 site.
CONSENT CALENDAR
THE CONSENT LIST CONSISTED OF ITEM NUMBERS 2, 3 AND 4.
IT WAS MOVED (REED/QUAN) AND UNANIMOUSLY CARRIED BY ALL PRESENT THAT THE PLANNING COMMISSION TAKE THE FOLLOWING ACTIONS ON ITEM NUMBERS 2, 3 AND 4.
Minutes Planning Commission – October 25, 2012 PAGE 1 Item 2. FREMONT DAY SPA – 39374 Fremont Boulevard – (PLN2013-00031) - To consider a Conditional Use Permit for a day spa offering massage services located in the Central Community Plan Area. This project is exempt from the California Environmental Quality Act (CEQA) per CEQA Guidelines Section 15301, Existing Facilities.
FIND THAT THE PROJECT IS EXEMPT FROM THE CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA) PER CEQA GUIDELINES SECTION 15301, EXISTING FACILITIES; AND FIND PLN2013-00031 IS IN CONFORMANCE WITH THE RELEVANT PROVISIONS CONTAINED IN THE CITY'S EXISTING GENERAL PLAN AS DESCRIBED IN THE STAFF REPORT; AND APPROVE THE CONDITIONAL USE PERMIT, PLN2013-00031, AS SHOWN ON EXHIBIT “A,” SUBJECT TO FINDINGS AND CONDITIONS ON EXHIBIT “B.”
Item 3. PRINCE OF PEACE ADDITION - 38451 Fremont Boulevard – (PLN2013- 00015) - To consider a Conditional Use Permit Amendment to allow a new 13,948 square foot two-story classroom building to be located at an existing religious and educational facility on property located in the Centerville Community Plan Area. This project is exempt from the California Environmental Quality Act (CEQA) per CEQA Guidelines Section 15332, Infill Development Projects.
FIND THAT THE PROJECT IS EXEMPT FROM THE CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA) PER CEQA GUIDELINES SECTION 15301, EXISTING FACILITIES; AND FIND PLN2013-00015 IS IN CONFORMANCE WITH THE RELEVANT PROVISIONS CONTAINED IN THE CITY'S EXISTING GENERAL PLAN AS DESCRIBED IN THE STAFF REPORT; AND APPROVE THE CONDITIONAL USE PERMIT AMENDMENT, PLN2013-00015, AS SHOWN ON EXHIBIT “A,” SUBJECT TO FINDINGS AND CONDITIONS ON EXHIBIT “B.”
Item 4. MISSION CLAY REVISED RECLAMATION PLAN - 2225 Niles Canyon Road – (PLN2010-00080) – To consider an Order to Comply issued by the Planning Division to the agents of Mission Clay Products Quarry, Mr. Owen Garrett and Mr. Bryan Vansell of MCP Industries, Inc., for failure to correct violations pursuant to the California Surface Mining and Reclamation Act [Public Resources Code §2774.1(b)].
Minutes Planning Commission – October 25, 2012 PAGE 2 FIND THAT THE EVIDENCE CONTAINED IN THIS STAFF REPORT SUPPORTS THE ISSUANCE OF THE AUGUST 22, 2012, ORDER TO COMPLY AND UPHOLD THE ORDER.
The motion carried by the following vote: AYES: 7 – Bonaccorsi, Chugh, Lorenz, Pentaleri, Quan, Reed, Salwan NOES: 0 ABSTAIN: 0 ABSENT: 0 RECUSE: 0
PUBLIC/ORAL COMMUNICATIONS - None
PUBLIC HEARING ITEMS
Item 1. ST. JAMES THE APOSTLE CUP - 34700 Fremont Boulevard – (PLN2012- 00147) - To consider a Conditional Use Permit and Preliminary Grading Plan to allow a phased expansion of an existing church to include a new 14,500-square foot church and 7,300 religious education building located in the North Fremont Community Plan Area. A Negative Declaration has been prepared and circulated for this project in accordance with the requirements of the California Environmental Quality Act (CEQA). Staff requests that the following corrections be included in the Staff Report and Conditions of Approval: Staff Report: None Conditions of Approval (Exhibit “B”, Condition 37): The Fire Department access roadway shall be 20 feet in width for Phase I and 26 feet in width for Phase II. When the width of the access roads do not accommodate the required width then the applicant shall provide red curbs, curb lettering every 30 feet and fire lane signs every 100 feet. Unobstructed all-weather fire apparatus access roadways shall be provided within 150 feet of all portions of the exterior walls. The fire department access roadways serving building within the site 30 feet or less in height must be a minimum 20 feet in clear width. Fire Department access roadway(s) serving buildings or structures 30 feet or less in height shall be a minimum of 20 feet in width. Fire Department access roadways serving buildings or structures over 30 feet in height shall be a minimum of 26 feet in width. The applicant shall provide fire lanes with red curbs, lettering every 30 feet and fire lane signs every 100 feet when the required width can be obstructed.
Principal Planner Morris noted changes to the Conditions of Approval.
Chairperson Bonaccorsi opened the Public Hearing.
Chad Hamilton, architect, asked for questions.
Minutes Planning Commission – October 25, 2012 PAGE 3 Commissioner Pentaleri asked why 179 parking spaces had been planned for Phase 1 and a total of 263 spaces with the proposed Phase 2 build-out when 127 were required by the City. It seemed that 165 spaces were currently available onsite. Was the 127 parking spaces supposed to cover both phases of the project?
Associate Planner Nguyen stated that he was correct.
Commissioner Pentaleri had read complaints from neighbors about continual church parking in front of their houses. His questions were:
Was there something about the existing parking configuration that discouraged visitors from using onsite parking? What could the church do to encourage onsite parking? Associate Planner Nguyen had been unaware of parking problems until the two emails had been received. The parking code required one parking space per five seats. Were the 179 spaces the existing Condition? Yes. Why was this excessive parking being requested? Was a more intensive use expected than what had been presented? Mr. Hamilton stated that the church did not intend to provide extra parking for a more intense use. Members felt more spaces would be helpful and would alleviate the neighbors’ concerns about parking. They had the room. Another criticism had been the “unmaintained” field. He asked if the applicant would commit to providing some landscaping on the undeveloped property that would beautify the neighborhood. They planned to landscape the empty field, although it was not a part of this application.
Commissioner Pentaleri suggested the motion should include that the development should be limited to no more than the existing parking and the undeveloped property should be landscaped.
Mr. Hamilton stated that some neighbors wanted to see parking increased above the code requirement and that could easily be provided. The full build-out, which would trigger the increase in parking, would be at least, realistically, ten years away. The next development would be the construction of the education building, which would not require an increase in parking.
Chairperson Bonaccorsi asked if the applicant would oppose reducing the existing parking.
Mr. Hamilton believed the parish’s preference would be to maintain the proposed parking in order to have no impact on the surrounding neighborhood and to be able to park onsite.
Minutes Planning Commission – October 25, 2012 PAGE 4 The Commissioners had the following questions:
Commissioner Salwan asked Commissioner Pentaleri if he wanted to remove the extra parking and convert that to landscaping, as part of his motion. Commissioner Pentaleri could not understand why the strong push for additional parking when no other uses were planned. Commissioner Salwan asked how many parking spaces would be needed at peak service. Mr. Hamilton stated that the proposed 267 spaces would serve the peak Sunday services very well and minimize the impact the neighborhood. They had more than one service and the parking need between the services was one reason for allowing extra parking on the site. What impact on the surrounding residents would occur if his requested parking was not approved? There might be an impact on street parking. Commissioner Pentaleri asked if the church had taken measures to encourage better use of the existing onsite parking. The onsite parking was used. The parking lot had been full during the times he had attended Mass on Sunday. Commissioner Chugh asked Commissioner Pentaleri if he was asking that the parking be reduced and if he wanted it to be used differently. Commissioner Pentaleri said that a certain use had been described and staff had advised that 127 spaces would be adequate for both phases. When an applicant asked for double what was required, he wondered if an additional use was being contemplated that would need that much parking. Principal Planner Morris noted that the parking required for a service from 9:00 to 10:00 would overlap with another service that might start at 10:15 or 10:30. Without sufficient parking, it would be an issue in the community. The City did not control maximum parking. The applicant’s numbers might be more current than the City’s, which could be 10 or 15 years old. Spillover into the neighborhood would be a concern. Commissioner Pentaleri asked if the City did not control maximum parking outside of the Downtown District. Maximum parking was identified only in the Downtown and that had happened just recently. Commissioner Chugh asked what Commissioner Pentaleri was trying to accomplish. Was his worry about excessive use far beyond what had been presented or did he want a different use to accommodate the extra parking? Parking should be consistent with the intended use and landscaping was preferred over parking consistent with a genuine need. Commissioner Chugh asked if the parking represented future proofing beyond taking care of the current needs of the church Mr. Hamilton went over to the site plans and described the future plans for the site, off mike. Back on mike, he summarized that the existing site was fairly large with two 20- year old buildings and parking would be visually screened from the street. One
Minutes Planning Commission – October 25, 2012 PAGE 5 area was planned for some future development by the church, depending upon future finances.
Chairperson Bonaccorsi closed the Public Hearing. He approved having the extra parking onsite, which would remove the pressure from the surrounding streets.
Commissioner Chugh agreed, especially when it came to parking at religious institutions.
Commissioner Pentaleri accepted the answers given to his concerns, but he wanted to make sure that a condition be added for landscaping the areas that were not currently developed in the motion.
Commissioner Lorenz stated that considering the fact that funding for the second phase was beyond the horizon, he would not agree to put an additional financial obligation on the church.
Chairperson Bonaccorsi agreed.
IT WAS MOVED (LORENZ/REED) AND CARRIED BY THE FOLLOWING VOTE (7-0-0-0-0) THE PLANNING COMMISSION – ADOPT THE DRAFT NEGATIVE DECLARATION (EXHIBIT “C”), AND FIND THIS ACTION REFLECTS THE INDEPENDENT JUDGMENT OF THE CITY OF FREMONT; AND FIND THE PROPOSED PROJECT IS IN CONFORMANCE WITH THE RELEVANT PROVISIONS CONTAINED IN THE CITY'S EXISTING GENERAL PLAN. THESE PROVISIONS INCLUDE A POLICY SET FORTH IN THE GENERAL PLAN'S LAND USE ELEMENT AS DESCRIBED WITHIN THE STAFF REPORT; AND APPROVE THE PROPOSED CONDITIONAL USE PERMIT AND PRELIMINARY GRADING PLAN (PLN2012-00147), AS SHOWN ON EXHIBIT “A,” SUBJECT TO FINDINGS AND CONDITIONS IN EXHIBIT “B;” AND APPROVE THE PROPOSED REMOVAL AND MITIGATION FOR 14 PROTECTED TREES PURSUANT TO THE CITY’S TREE PRESERVATION ORDINANCE.
The motion carried by the following vote: AYES: 7 – Bonaccorsi, Chugh, Lorenz, Pentaleri, Quan, Reed, Salwan NOES: 0 ABSTAIN: 0 ABSENT: 0 RECUSE: 0
Minutes Planning Commission – October 25, 2012 PAGE 6 A discussion ensued among the Commissioners and staff as to what order in which to hear the remaining items, which were: Climate Action Plan, Kimber Park/Mission Hills Swim and Tennis Club and 7-Eleven. The decision was to hear Kimber Park, the Climate Action Plan and the 7-Eleven project in that order.
Chairperson Bonaccorsi called an informal recess at 7:35 p.m.
Chairperson Bonaccorsi reconvened the hearing at 7:45 p.m.
MISSION HILLS SWIM AND TENNIS CLUB– 10 EAST LAS PALMAS AVENUE - (PLN2012-00241) - To consider a Preliminary Planned District to establish a private swim and tennis club that would replace in part an existing swim and tennis club and would include: seven tennis courts, three swimming pools, and a 42,000-square-foot club house with fitness facilities, spa, restaurant, conference/meeting facilities, business center, and nine guest rooms for overnight lodging in the Mission San Jose Community Plan Area. A Draft Environmental Impact Report has been prepared and circulated for this project in accordance with the California Environmental Quality Act (CEQA).
Additional Informational Enclosure 5: October 18, 2012 Draft Planning Commission Minutes
Principal Planner Morris reminded everyone that this item had been continued from last week and the Public Hearing was still open for public testimony.
Chairperson Bonaccorsi recused himself, because the applicant had been a client of his for a number of years on matters unrelated to this particular application. He turned the hearing over to Commissioner Lorenz.
Commissioner Lorenz became Acting Chairperson for this item. He again reminded everyone that the Public Hearing was still open.
Principal Planner Morris read from the staff report, page 11 of 20: “A Preliminary Planned District is the approval in principle of the preliminary site plan and shall be limited to the general acceptability of the land uses proposed and their interrelationship, and shall not be construed to endorse a precise location of uses, configuration of parcels or engineering feasibility, and such approval shall not be construed as or deemed to be in any form or sense a commitment by the City to approve any subsequent formal rezoning application.”
What was not before the Commission and was not in the recommendations was the determination of Private Open Space versus General Open Space for these land uses. That would be determined by staff once the project had gone to City Council in some form or fashion.
Acting Chairperson Lorenz asked Commissioner Reed and Vice Chairperson Quan for their disclosures, since they had both been absent at last week’s hearing.
Commissioner Reed had fully reviewed the web cast.
Minutes Planning Commission – October 25, 2012 PAGE 7 Vice Chairperson Quan had also reviewed the web cast.
Acting Chairperson Lorenz disclosed that he had traded emails with Ms. Broadwin concerning the procedures and length of time that would be allowed for each speaker at tonight’s hearing. He reminded the public not to clap, but hands in the air was permissible; no speakers from last week would be allowed to speak again this week; and three minutes would be allowed for each speaker. After the close of the Public Hearing, the Commissioners would question staff. Two motions would be decided: The first to recommend certification of the Draft and Final EIR and the second would be for a motion regarding the Preliminary Planned District recommendation.
He continued the Public Hearing and asked if either Commissioner Reed or Vice Chairperson Quan had any questions based upon their review of the video tape of last week’s hearing. Ms. Broadwin had volunteered to answer any of their questions.
Commissioner Reed asked if she felt this proposal was within the boundaries of the Private Open Space initiative that had been passed by the Fremont voters and how did it fit into the initiative.
Ms. Broadwin replied that the wording of the initiative stated that “any land that was designated Private Open Space, either in the General Plan, through zoning or through a Planned District (PD), would be covered.” Therefore, the Kimber Park parcel should be covered by the initiative as long as the zoning remained as it was at this time.
Vice Chairperson Quan had no questions.
Dan Morgan, 36-year Kimber Park resident, stated that this cherished atmosphere had provided for people all over the Tri-City Area. The goal of the ongoing struggle against a multitude of development plans was to maintain the natural character of the neighborhood. Changing this wonderful space to a never ending series of commercial ventures was an attempt to wring a profit from a faulty real estate deal. A new exercise facility with a restaurant, swimming pool and at least 12 tennis courts could improve the use of the land. However, to add an event center, 200 parking spaces, hotel rooms and a conference center would permanently transform its natural beauty into an ever-expanding commercial enterprise with questionable constraints. The property and neighborhood would be over-run with extensive traffic and decreased natural beauty while benefiting a few people who saw this area as a potential cash cow if the zoning could be changed. People had been consistently strong about this issue for a long time.
Dr. Gordon C. MacLeod, 36-year Club member, had been disappointed, along with his neighbors, with the staff report. Too much emphasis had been put on the proposal and the history of Kimber Park’s past 39 years had been ignored. The intent of the Private Open Space initiative had been subverted. The residents did not want, nor need, conference or lodging rooms in a neighborhood recreational club. The paths inside the property had always allowed the residents to enjoy the natural environment and had allowed one to cross the property. However, the No Trespassing signs that were still up did not show any interest in community integration. He hated the idea of a 42,000 square foot commercial building to be located 350 yards from his home. The ambiance of the Club would not depend upon having a community room, but
Minutes Planning Commission – October 25, 2012 PAGE 8 depended upon what the Club offered to the community. The 13 tennis courts had allowed for an excellent, professional teaching center and had allowed the membership to participate in the U.S. Tennis Association leagues, along with courts being available for individual members to use. These programs could not be carried out with the removal of six courts, leaving only seven courts. The wishes of the Kimber community were being ignored in favor of the developer.
Steve Cho stated that he lived on the other end of town. He believed the impact to the community was not being considered. The speakers had serious doubt about this project. Last week, the applicant had stated that no trees would be removed. However, the report stated that the removal of trees would be limited to the extent possible. He was not sure that enough details were known to be able to move forward with any recommendation. The Commission should listen to the community and reflect their wishes with its decision. He would not want this project in his neighborhood.
Ron Fong, Kimber Park resident, stated that he was a civil engineer who had done years of land- use analysis. In his opinion, the parking impact of the proposed project would be very significant and could not be mitigated without a severe change to the proposed parameters. The City code required two to three times the parking than what been proposed. According to the numbers presented by the applicant, they would be required to provide 228 parking stalls. The math added up to 227. However, the tennis courts would require 14 more spaces; the restaurant would require double the density of occupants, which would be 52 more spaces plus 16 more spaces using seats or square footage ratios; the health club should be four less spaces; so his analysis showed that 305 spaces would be allowed, based upon the Fremont Municipal Code. The applicant would provide only 107 parking spaces. His analysis would require about two acres more for parking. He had also found errors in traffic estimates. He compared putting the 12,000 square foot Club Sport fitness building in this neighborhood with the proposed 13,460 square foot fitness center.
Miao Liu stated that she was also conveying her concerns, along with her 10-year old daughter’s concerns, which were safety on the road while walking to and from school; it would not be safe to walk around the community because of strangers coming into this large development; and the expected higher noise level from the two additional aqua centers perhaps late into the evenings. As a tax analyst, she had to make certain that her company was in compliance with all tax ordinances when going into a new market. She understood that City planners were on the frontline to make sure that a new business activity would be in compliance with the zoning allowed in that area. It seemed that the planner was trying to change the zoning to fit the needs of this business, which was totally unacceptable. She did not agree with the rezoning to Public Open Space.
Edward Wustenhoff, Kimber Park resident, was tired of having to attend another hearing that concerned another development proposal that could not be trusted. He mentioned an article from the Tri-City Beat, published December 8, 2011, that told about a developer who supported a local politician who, in turn, had supported the developer’s project to open a local supermarket in the City if the City Council would allow him to build it on Auto Mall Parkway. After approval, the owner sold the property for a VA outpatient clinic. The 42,000 square foot structure, with a business center and nine lodging rooms, would conflict with the surrounding neighborhood. He
Minutes Planning Commission – October 25, 2012 PAGE 9 had photos that were passed among the Commissioners. None of the components planned for the structure were needed in the City, with vacant hotel rooms that needed filling and commercial spaces that needed leasing. Keep the Private Open Space designation and let the developer come to the community with a plan that would be compliant with Kimber Park’s current zoning. The 10,000 signatures for the Private Open Space initiative had told the City what the people wanted. The City of Fremont did not need this proposal; the community did not want it; and the current zoning did not allow it.
Renuka Dhar, Kimber Park resident, stated that this proposal would not increase the beneficial amenities of the neighborhood with its large-scale event center, lodging and conference center. It would reduce the wanted tennis amenities; increase unwanted pool amenities and would almost eliminate the wanted work-out room. If approved, the Kimber Park area would be known for a Club Sport and a hotel that was located right in the center of the neighborhood with all the associated traffic and parking issues. Neighbors would be resentful of this behemoth that they could not afford to join. This was not what the City Council intended when they asked for a mutually agreeable proposal. This proposal would destroy this center of the community that it already was before it was closed down by the owner.
Lena Zee, Kimber Park resident who lived about 600 steps from the courts, stated that she had been a local real agent for 26 years. She remembered watching her father and brothers playing tennis at the Club and the first time she saw a flock of wild turkeys, as she was growing up and living in Mission San Jose. She had moved from a high rise in Hong Kong and she had decided she wanted to live in Kimber Park. Its homes were uniquely located near the bucolic open space that was hidden behind the tennis courts, which was an undeniable, strong amenity and a handy marketing tool that added desirability to living in Kimber Park. If this proposal were approved, she would have to disclose this negative fact to her clients. The residents did not want any more traffic congestion than they had already. This morning she had a family of wild turkeys fertilizing her lawn and she promised them that they would be allowed to come back when this proposal was denied.
Don Hertzfeldt, 32-year Kimber resident, stated that, in recent years, he had attended more than a few Council and Commission meetings which had dealt with this property. This was yet another group who had come to his neighborhood to tell the residents what they should have. This latest and extensive business enterprise was almost certainly unacceptable for the parcel as it was currently zoned. He had attended last week’s meeting and saw the presentation of a remarkably ill-conceived proposal whose scope went far beyond anything appropriate for the land. Then a municipal functionary declared that zoning part of the property to General Open Space would enable this project to move forward. Earlier, the residents of Fremont had weighed in on the subject of rezoning through a partition and the City Council had emphatically addressed the issue, as well. The spirit of the petition, the will of the thousands of residents who had signed it and the subsequent actions of the Council had been disregarded. Sometimes a deal or a process might be strictly legal but did not “pass the smell test.” It was on those occasions that ordinary folks hoped their civic leaders would stand up and do the right thing, because it was the right thing.
Minutes Planning Commission – October 25, 2012 PAGE 10 Steve Conn, 22-year resident in Kimber Park, stated that he had served for ten years (seven years as President) on the Board of Directors of Mission Valley Swim Club and he was a Scoutmaster of a Fremont Boy Scout troop. He hoped to report to his scouts that he and his neighbors had participated in a local government process and had made a difference, rather than reporting that big business had won the day and had influenced the decision. Approving the building of a large commercial facility the size of City Beach Sports Club in the middle of a residential community was not right. The EIR had not accurately comprehended the uses that were being suggested. The EBSL hosted the local recreation swim leagues in the summer, which occurred on Saturdays in June and July, and most meets had 200 to 250 youth with their associated parents and vehicles. These meets started about 6:30 a.m. and lasted to noon, which created tremendous traffic and noise and would create friction with the neighbors. He usually received several calls per year, although his club was not surrounded by houses. He wondered who would use these pools. He knew of two swim clubs within about two miles that were struggling to maintain membership rosters of 200 families. They both owned their land, so their membership fees were very low, which was directly the opposite of this proposal and he assumed much higher membership fees. Why would pools rather than tennis courts be built on unstable soil? He asked that the Commissioners vote their conscience and feel ethically bound to keep this property zoned as Private Open Space, regardless of the recommendations of staff. At a minimum, he asked that the EIR accurately reflect the recommended uses for this site.
Dwane Kennedy, applicant, introduced the members of his team and stated that his urban planning firm had been hired by the property owner last spring to conduct a planning study to evaluate development alternatives for the Kimber Park site. After hearing from the surrounding community, it was loud and clear that the park-like atmosphere must be maintained and residential development was not a viable land-use option. The property ownership was willing to propose a restrictive covenant or similar tool to prohibit residential development on the entire 12.6 acres in perpetuity, which should put an end to the 38-year controversy. This would be a modernized, 21st century swim and tennis club nestled into the Mission Hills for existing residents and future generations.
Andrew Law, resident directly across from the Mission Hills Tennis Club entrance, stated that the parking analysis was incomplete with 35 current spaces, 107 were proposed and possibly 228 spaces would be required by the City. The traffic impact was also incorrect, because the main access was shared with 200 homes rather than the ten homes in the neighborhood of the Harbor Bay Club that had been used for comparison. The Harbor Bay Club had 19 tennis courts and a 25,000 square-foot fitness center. This Club would have only seven tennis courts and less than 4,000 square feet for the fitness center with 15,000 square feet for lodging. This recreation club with private open space would be turned into an event center with hotel rooms. The owner should be forced to use the property as was allowed when she purchased it. The City should not be obligated to change the zoning because a new plan had been proposed.
Terry LaHowe, Kimber Park resident, read a letter from Laird Matthews, who was not in attendance. It stated that he lived directly across the street from the tennis club and he had been a self-appointed guardian for the 12-acre site to ensure that land pirates and speculators did not get their hands on the property and ruin it. Five previous developers had been turned back in the past; however, this was the first time that Planning staff had taken the easy way out and had
Minutes Planning Commission – October 25, 2012 PAGE 11 recommended approval. This proposal should have never seen the light of day. Conceptually, the developers, with the City’s recommendation, were asking approval for a Denny’s Restaurant, a Motel 6, a Lucky Supermarket parking lot and a 42,000 square foot commerce building across the street from his house and in the middle of a quiet residential housing community. If approved, how long would it take for flashing signs for Vacancy and No Vacancy appear, along with banners advertising all-you-can-eat Grand Slam breakfasts for $4.95 at the restaurant? Can’t happen? Remember, just a concept was being asked for approval. All this was being brought by an LLC that had proven it could not run restaurants or tennis clubs and an urban planner who had never done any of this before. A combo General Open Space and Private Open Space solution would be equal to Solomon cutting the baby in half to appease both women.
Toni Shellen, 40-year near Kimber Park resident, said that she loved the open space in the Park. She expressed great respect for City staff and the work they do, so she was surprised at their recommendation, which would: 1) Change the zoning, which would go against the PD covenant that was put in place by the City; 2) Allow a large-scale commercial business in the midst of an established, quiet residential area; 3) Require a zoning change to establish inappropriate commercial land uses for a concept, which could later be changed, but could cause a loss of this Private Open Space forever; 4) Be contrary to the spirit and vision in Fremont’s General Plan; and 5) Go against not only the residents of Kimber, but the wishes of the Fremont residents as evidenced by the Protect Open Space initiative’s success. The City had created a PD, with a private park in the middle that established the use for this land. Shapell’s covenant had stated that the park would remain dedicated to natural open space. A covenant was a formal, solemn and binding agreement, a promise. Homes bought by residents in 1974 and later understood that this was a Planned District and would remain so. While a modest upgrade would be welcome, a project of this size, height and magnitude was not acceptable in the midst of an existing neighborhood, which had clearly expressed strong opposition. Basically, the developer was asking that the zoning be changed for this conceptual proposal and “trust them.” Within the past year, this owner had brought forward three different developers and numerous every-changing plans. The opposition to each of the proposals had been about preserving Open Space, period. The Commission’s decision would not be only about Kimber Park. It could impact any Fremont citizen and it was about maintaining the character of the City’s neighborhoods and ensuring that vision for the future.
Bill Patten favored this project. He was involved with tennis as a player, club director and coach for Kennedy and Mission San Jose High Schools in the City. The Mission Hills Club had been truly one of the greatest tennis clubs in this region. He had always been excited to have the opportunity to coach or play on the site. The Club used to coach many tournaments and had hosted the MVAL championships for the high school players in the area, which had made it a tremendous community asset. The Fremont community deserved a world-class facility. An upgraded and expanded facility would be wonderful service to the community.
Acting Chairperson Lorenz asked what the speaker had found was so great about the Kimber facility.
Minutes Planning Commission – October 25, 2012 PAGE 12 Mr. Patten replied that it was mainly the environment. It felt as though one was someplace completely different. It had a resort destination feel to it, which was very unique among sporting facilities.
Mike Pan stated that he was a long-time member of the USTA and the USGA; he played a lot of tennis and golf. He had played tennis at the Club many times in the past. He had loved the Tahoe-like backdrop. Unfortunately, at this time, he just played at the Club and left, because the facility was old and very limited. He would love to have a chance to use a new, modern facility like this, while his wife and family could relax by the pool, or his wife could enjoy a good spa day with her friends, then the family could get together at the restaurant for a nice meal. An indoor facility would allow USTA matches to go on, even during unpredictable weather. If approved, his family intended to be one of the first to join.
Commissioner Pentaleri asked where the speaker lived.
Mr. Pan answered that he lived on Blacow Road.
Tim Tran, 10-year City resident, was, also, in favor of the project. His history with Kimber Park began about three years ago when he was invited to play tennis by Art Kimber. He had not joined the Club, because he felt that it was a little outdated and it did not provide amenities other than tennis. The community would be benefited by a modernization. After looking at the proposal, he liked it a lot. The size, the aesthetics, the access and safety would be consistent with the character of the neighborhood. He liked the LEED certification and the upgraded landscaping. He closed with a quote by Steve Jobs.
Commissioner Pentaleri asked the speaker where he lived.
Mr. Tran stated that he lived in Liberty Commons.
Acting Chairperson Lorenz called a recess for the stenographer at 8:37 p.m.
Acting Chairperson Lorenz reconvened the hearing at 8:47 p.m.
Krisana Tantivitoon, Kimber Park resident, asked, “How can one even fathom a project this size that could destroy the character of our neighborhood?” They did not belong here. . She agreed with Commissioner Pentaleri about the community character. To me, this Plan is such a hodgepodge of careless thinking that it should not even be entertained. When examining the zoning maps for each city and each parcel that was included with the developers’ submission, the tennis clubs used for comparison were all, interestingly, commercial or considered to be in the Central Business District. None were on Open Space parcels in the middle of residential PDs. These proposals had been dragging on for more than one and one-half years. What was the outcome of the EIR? Which plan presented in the EIR had been deemed environmentally superior? She guessed that it would be the No Project Alternative.
Elliot Broadwin, Christina Broadwin’s husband, asked the Kimber Park residents to stand and stated that they had been in attendance last week, were here this week and would be back any
Minutes Planning Commission – October 25, 2012 PAGE 13 week when the outcome of this property was on the line. He disagreed with the statement made at last week’s hearing that “the swim and racquet club use is better described as General Open Space rather than Private.” However, one could easily come to the opposite conclusion. The City’s definition of Private Open Space precisely described the Kimber Park property and allowed the existing recreational use. General Open Space designation called for a minimum lot size of 20 acres; Kimber Park was less than 13 acres. General Open Space allowed for one single-family home; Kimber Park had no such rights. According to the October 18th staff report, any facility was excluded where the principal use would be enclosed in a building. In his opinion, a 42,000 structure, seven times the size of the existing facility, would not qualify for Private Open Space or General Open Space designation. The Draft EIR, published just two weeks after the adoption of the initiative, stated that “If the application is not approved within the 12-month period, the project site will be designated Private Open Space.” More than 10,000 voters in the City believed that Kimber Park was Private Open Space and should be subject to the initiative.
Sandy Tompkins stated that she and her husband owned the Tompkins Tennis Academy and they had operated at the Mission Hills Tennis Club for more than six years before the owner had abruptly closed the doors to the Club last November 3rd. Since then, they had increased their business in the Fremont area by over $100,000 in 2012 and grossing more than $800,000. They were projected to gross more than $1.5M in 2013. They operated the largest junior program in California and were currently looking for additional courts or facilities in the City in order to expand the business. Their expansion had taken place during the recession, which spoke to the fact that tennis was now the No. 1 growing sport in the world. The proposed reduction of tennis courts for the Club would be going in the wrong direction. Demolishing six courts would make it impossible to run a successful adult or junior program. They had been maxing out the number of courts during the day, while both adults and juniors had used the courts in the evening. They had expanded their business to include boarding camps in Pebble Beach, as well. According to consultant Paul Allen, this proposed facility would attract major athletes, coaches and trainers. Seven courts would not allow it. Mr. Allen also stated that this lodging/camp model did well at the Carmel Valley Tennis Camp; however, this camp was located 45 to 50 minutes down Carmel Valley Road off of Highway 1. It was a multi-sports camp that was focused on archery, volleyball, basketball and some tennis. As the Club existed today with 13 courts and pool and fitness area, it could and should be a thriving facility with effective management. Before the Club was shut down on November 3rd of last year, it was absolutely the third place in the fabric of the community under the current configuration. Their business was an example of how to succeed with tennis alone. Even though the owner had spent no money on maintaining the Club, their business had increased 115 percent during the six years and, in fact, they had paid to resurface six of the courts during the final two years. All this Club needed were minor renovations to the club house pool and hot tub. She wondered how the current owner could be allowed additional land uses when she had not run the Club properly in the first place, by not marketing the Club and by not wanting new members.
Commissioner Pentaleri asked if Ms. Tomkins’ academy had operated strictly out of this Club or did it operate out of other facilities.
Minutes Planning Commission – October 25, 2012 PAGE 14 Ms. Tomkins replied that they had operated strictly out of the Club until it closed. At that time, they were forced to seek other locations.
Commissioner Salwan asked the following:
What had the financial arrangement with the Club been? It had been an 80/20 split profit sharing. The owner received 20 percent of the gross profit every month. Who had operated the Club? Their company had run the program; the owner had operated the Club. Had she been satisfied with the facilities? No, roof and deck repairs were needed, along with basic repairs. How about the condition of the tennis courts? That was why her company had paid to resurface them.
John Dutra, Sr. stated that this project was not compatible with what was traditionally associated with neighborhood residential. It was more in line with commercial recreational facilities. The 42,000 square foot facility would be 35 to 40 percent of what could be found in square footage in a standard shopping center. The second floor residential units had no use limitation and could easily become a long-term stay facility or an apartment complex. Either way, it would be a residential use. If the 42,000 square foot center were an office building and each space measured 250 square feet, 168 parking spaces would be required. This project was not ready for approval by either the Commission or Council or even public review. In reality, what was before the Commission was a disguised request for a change in use to Commercial. It was not a request for PD zoning.
Dwane Kennedy, Urban Planner and Applicant, stated that they had been listening to the community and the technical team to put forth the best possible plan for review. This plan would conserve more than two-thirds of the site’s open spaces and new construction would be limited to previously developed footprints. This plan would save 612 trees, and dead and dying trees would be replaced, along with the addition of new trees. Kimber Park would be protected from residential development forever through restrictive covenants that could not be undone. The proposed universal site access would be intended for multigenerational use. This conceptual plan represented the first step in a multistage review process that would include parking studies, design review, traffic analysis and community involvement and more. This plan would provide an updated facility that would appeal to the diversity of the residents, who wanted a local gathering place. He asked for clear guidelines from the Commission to allow a continuation of this collaborative process. This process would find the right balance between the plan that was promised in 1973 and this updated vision for the tennis and swim club. He hoped to begin to create a way to move forward and to heal the wounds from the past.
Commissioner Pentaleri asked the following questions: Would he object to an additional condition that any mitigation measures be in the form of onsite trees rather than in-lieu fees that were ordinarily allowed? Absolutely. The success of the plan depended upon the trees and they would voluntarily provide more trees.
Minutes Planning Commission – October 25, 2012 PAGE 15 Would he object to replacing the words “approximately” with “up to” concerning Condition 1, which talked about the size of the club building as being approximately 40,000 square feet and an aquatic of approximately 2,700 square feet? Absolutely. It was more appropriate. Never was a 42,000 square foot commercial facility planned. Would he object to a condition that not more than 107 parking spaces would be created for this project? The number of parking spaces would have to match the uses; so when the size of the building and its uses were known, a parking study would be performed and those conditions would have to be met. That was precisely the point. Limiting the parking would be one of the ways to ensure that the concept being brought forward would be consistent to some prescribe maximum permitted amount of parking. They believed the maximum parking spaces would be 107, which would be their constraint. They did not wish to cut down trees and to build in spaces that were previously provided as open space.
Commissioner Chugh was intrigued by many of these concepts. However, this applicant had made many iterations after having spent a considerable amount money and time resources. When City Council had asked for a project that could be mutually agreed upon by both sides, the proposal had gone from a multiple flavor of houses to this flavor. His questions were:
Was he saying that the parking would match the size of the building? That he would be willing to go as small as possible? That was correct. It would have to. Then why did his proposal not reflect that? They would come back if they could get past this land use concept. The next step would be the Precise Plan, which would have to match up parking with exact square footages of building. Was this yet one more exercise, spending staff and consultant time doing more studies, only to find it was a not a project that the applicant would be willing to accept? Was he willing to meet whatever requirement was needed for whatever uses were determined at that point in time? If only a 10,000 square foot building were allowed, that would be what would be built. While lodging would be a permitted use, if lodging was not allowed, would he be willing to flip the model that was being presented, conceptually? Yes. Then the conceptual plan should reflect that. He had just agreed that the building would not exceed 42,000 square feet. Some of the uses that would use square footages would be indoor courts and that precise level of detail had not been reached, yet. A tennis court could not be shrunk down. He had been trying to provide the broadest envelope to make sure the correct uses could fit inside. What would be the lowest square footage he would agree to? It was a function of the uses, parking and everything that would be on the Precise Plan. He could not chose a number below which the project would stay. He could see the applicant’s irritation with these questions. However, he was trying to understand the conceptual use and its extraordinary benefits and how it would fit into the
Minutes Planning Commission – October 25, 2012 PAGE 16 character of the whole General Plan. He also was concerned that the applicant would probably go through yet one more exercise with a retinue of consultants, only to have an undetermined outcome.
Commissioner Salwan stated that the community was concerned that the lodging was a Trojan horse for a future residential development. His questions were:
Could he describe this lodging model and explain how it would work? Mr. Kennedy stated that the lodging had come about after looking at other facilities. They first had the idea after looking at the Kennedy School in Portland, which was located in an old elementary school in a residential development and was very popular with the neighborhood. Paul Allen had reinforced this idea by describing how the lodging component could work with sports camps. It would be dormitory-style lodging; nothing about it would be hotel-like. Again, was he willing to agree to a restrictive covenant deed restriction that would not allow residential housing for the life of the project? That was correct. It would be for perpetuity. He understood that trust was an issue within the community. They had moved on from the idea of housing being a part of the project. It was an important olive branch to make sure that Kimber Park would not have residential forever. He never wanted to talk about housing, again. He was not there to create poor developments, but he was trying to provide the right thing. A few of the residents had objected to the new scenario being introduced within the EIR at the last minute, which had not allowed ample comments. The EIR process was controlled by staff. He understood that staff had performed a thorough analysis of the fifth Alternative, which was reflective of this maximum concept being reviewed tonight. Assuming that the impacts associated with this large envelope would be adequate, anything smaller after that would still fit, thus, avoiding redoing the EIR. Would he be amenable to allowing the public time to comment on Alternate 5 in the Final EIR? Yes, if they needed more time. Had he seen the letter from Christina Broadwin, titled “What Would the SKP Group Support on this Property?” Yes, he had seen it last week. He was quite happy to see the many items that all were agreement on. Specifically, they wanted the tennis courts to be preserved or increased in number. Was he willing to do that? Yes, they were trying to create different court combinations and many ways to create the tennis facility and multiuse courts, which would be decided during the next phase of this project. Would he be willing to retain the trees and replace the dead or dying trees? That had always been one of their principles since the beginning of this study, and included the protection of trees, the preservation of views, the conservation of open spaces, the reduction of impervious surfaces. Those principles were given the right-of-way. For example, the May 18th housing proposal could not be carried forward, because it would have impacted the primary principle of conserving open space.
Minutes Planning Commission – October 25, 2012 PAGE 17 Much discussion had occurred about this plan being a business/conference center. Would he be willing to remove those uses? Yes. He understood that certain kinds of events, such as business events, had occurred for years on this site. He had offered this option, but never envisioned it as a space for more than a few people or a retreat space. These uses could be shared with the community space. Would this ever be an event center? He was not certain what was meant by that, but hotels and event centers had never been proposed. How crucial was the lodging? Could that be eliminated? If that was a lightning rod issue, it could be reconsidered. They had been trying to provide a whole mix of uses other than tennis and swimming. Would he be willing to remove the spa aspect of the proposal? If the hot tub needed to go, he would agree to consider it. Just a hot tub? Wasn’t the spa some massage type of facility? Any club had spa rooms for massage associated with sports activities. They were common in every club he had toured.
Commissioner Reed was very impressed with the applicant’s willingness to compromise. He agreed that a 42,000 square foot building would never fit into Kimber Park. It seemed that some common ground existed. The covenants were fantastic. It was very important that an actual balance was agreed to. He also agreed that more time was needed to review the Draft EIR with Alternative 5. He would not support the proposal as it was, but he believed that collaboration would produce a project that could move forward.
Commissioner Salwan clarified that the applicant was open to the square footage being less than 40,000, perhaps 20,000 or 24,000.
Mr. Kennedy agreed.
Acting Chairperson Lorenz closed the Public Hearing and called a recess for the stenographer at 9:27 p.m.
Acting Chairperson Lorenz reconvened the hearing at 9:37 p.m.
Commissioner Pentaleri asked the following of staff:
Would staff revisit what the Commission was being asked to do tonight? Associate Planner Pullen reiterated that the Commission had to decide if it would recommend certification of the Final EIR. Secondly, the scope of the Commission’s review was to approve the general appropriateness of the mix of proposed uses and the interrelationship among them at the Preliminary Planned District level. Due to a question during the recess, does what was being discussed tonight constitute a commitment by the city to approve any other formal rezoning? Can you explain what the distinction is between a Planned District and a Precise Planned District?
Minutes Planning Commission – October 25, 2012 PAGE 18 Principal Planner Morris explained the difference between a Preliminary Planned District and a Precise Planned District. City Council had directed staff to “complete a Preliminary Planned District, which is conceptual. Were these uses conceptually okay in the general context? Were they used often at the City? Deputy City Attorney Rasiah said that they were not. The last time he knew of using it was the Loyola residential project. When the project got to the Precise Planned District stage, there was a much finer grain of detail and many of the variables were considered, such as, number of parking spaces, square footages of uses, hours of operation, civil engineering, trash, circulation, etc. So, it was the Planned District versus zoning change? The Planned District was the zoning. That was what he was looking for. It seemed peculiar that in the same sentence the Commission was being asked to recommend approval of a Preliminary Planned District, but that would not be a commitment to approve a subsequent formal rezoning. So what was the distinction? That the Commission could approve a Preliminary Planned District, but that was not a guarantee that subsequent precise Planned Districts would be developable or approved? Or is it a mixture of Planned District and Planned District with zoning that everyone could understand? Deputy City Attorney Rasiah said that if the Commission approved the Preliminary Planned District, tonight, that would be the rezoning of the site. However, it would be done by ordinance that did not commit the Commission to a future rezoning or future Precise Planned District. Was it fair to say that if a Preliminary Planned District were approved, then the covenants and conditions associated with a subsequent Precise Planned District would govern the future uses of the property and designations that might otherwise exist as General Open Space or Private Open Space would not be applicable? Deputy city Attorney Rasiah explained that a future Precise Planned District would have to be consistent with the Preliminary Precise Planned District. So if a restricted covenant or easement or other legal instrument that was recorded against the property would not disappear. It would not go away if a Precise Planned District were subsequently approved. The Precise Planned District would have to be consistent with the Preliminary Precise Planned District. But did it not become a “different beast” once there was a Precise Planned District or Preliminary Precise Planned District? Would whatever the underlying zoning had been or might have been before establishing the Planned District be relevant, anymore? People were concerned about the question of Open Space zoning versus Private Open Space zoning. Was it the case that the Conditions and Covenants that would be associated with the Planned District, whether it was Preliminary or Precise, would govern the site and any other kinds of existing generic zoning definitions would not have anything to do with it? Principal Planner Morris stated, “That was correct.” Planning Manager Wheeler added that preliminary zoning, in some ways, establishing a framework in which a future project would give the Precise Zoning Regulations that would govern the project. Earlier maximum parking had been explored and, in a sense, it was very consistent with what he had discussed here. That defining maximum parking would be one way to constrain the intensity of the development. Was that something that was not in the City’s tool kit?
Minutes Planning Commission – October 25, 2012 PAGE 19 Principal Planner Morris stated that it was two different issues. In the earlier application, the zoning standard of one parking space per three seats in a religious facility was discussed and there was no maximum parking. If the Commission so chose to say that the maximum parking spaces in this Preliminary Precise Planned District should be 107 spaces, that would be the number that would be the recommendation.
Commissioner Pentaleri stated he was happy that the applicant had expressed such a level of flexibility, which sounded as though they might be consistent with what Save Kimber Park was prepared to support.
Should the Commission be negotiating with the applicant? Was there a threshold? At some point would a line be crossed when something had changed in so many details that the project became entirely different. Why not ask the applicant bring back a proposal that everyone agreed on? Planning Manager Wheeler replied that under different circumstances that might be the logical path. Under these circumstances, the City had until December to bring a project forward, either for approval or not. The City did not have the luxury to ask the applicant to revise their application and bring it forward at a later date. Commissioner Pentaleri did not feel a sense of urgency. The rules of engagement had been established since December 13th last year and here we were. Commissioner Salwan asked if were appropriate, at this stage, to prescribe or disallow certain uses? How about limiting the square footage of the property? Or the Parking? Principal Planner Morris stated that it was within the Commission’s purview. Commissioner Chugh asked if the Commission could prevent uses, as well. Principal Planner Morris stated, “Yes.” He explained that the reason for asking that question was because at the last meeting, Principal Planner Diekmann had walked them through the changes with regard to the General Designation, which would permit some of these uses. He understood that staff felt that kind of change had to be made so that a certain amount of those uses could be permitted. He assumed that Principal Planner Diekmann had been referring more to the General Plan Open Space Designation and he was not referring the Preliminary Precise Planned District and the uses before the Commission. He recalled that not much could be done on Private Open Space, hence the vegetable garden. What other uses would be permitted there? Principal Planner Morris stated that he would have to review last week’s draft minutes before he could provide an answer. Principal Planner Morris believed, in the context of the project that was before the Commission, two-thirds of the site fell more within the General Open Space designation and the remainder one-third, with the open space and vegetable garden, was more Private Open Space. Was that staff’s interpretation? Yes, as stated in the report and as the project was presented at this time. If City Council disagreed with staff, what would happen? Page 4 of 20 of the report stated “If an application is approved during that time, the City will conform the land use map to reflect the approved designation.” This meant that the City would apply the appropriate General Plan designation.
Minutes Planning Commission – October 25, 2012 PAGE 20 Planning Manager Wheeler added that, while adopting the General Plan Update, Private Open Space and General Open Space had been collapsed into one category where it applied to both passive Open Space uses and potentially commercial and Public Open Space type uses, which could include recreational facilities. As a result of the initiative, changes were made to the General Plan to reinstitute General Open Space. If this project were approved, the most conforming land use designation for the portion of the site where the swim and tennis club would be located, would be General Open Space. Whether the recreational use would be allowed in Private Open Space had been questioned and it certainly had been allowed in the past when Private Open Space had been applied to both passive and recreational type open space uses. It was possible that Council could approve a project of some sort and also direct staff to conform the General Plan to Private Open Space. Would the purview of this Commission involve excluding a use, such as lodging? Yes. Could that be added as a Condition? Yes, it could be made as part of the recommendation to City Council. Commissioner Salwan asked for comments concerning the uses that were allowed on this parcel as it was at this time. Principal Planner Morris stated that this new P-District would wipe the slate clean and new uses would be applied. What were the existing uses? Associate Planner Pullen stated that P-73-1 was for a private recreational facility with limited public access, which had been defined through two subsequent modifications that added more tennis courts to the center portion of the parcel. A restaurant had been permitted but was never built. Commissioner Pentaleri asked if part of the definition of General Open Space included a minimum lot size of 20 acres. Principal Planner Morris replied that was the requirement for new lots. Commissioner Salwan asked if this project were denied, would this parcel stay Private Open Space. Could staff rezone it from Private Open Space to General Open Space? Planning Manager Wheeler stated, “No.” If a project was not approved, the General Plan designation for the site would be conformed to Private Open Space. Right now, the land use designation was Kimber Study Area and the land use designation would be simply changed to Private Open Space. There would be no zoning action and the existing PD would continue to apply to the property. Would General Open Space apply in the future? The General Open Space zoning was not in question at this time. The current potential zoning was the Planned District and if it were not approved, it would continue to be a Planned District and would conform to the existing P73.1. Acting Chairperson Lorenz asked for comments made by one of the speakers regarding the lack of level of detail that was normally required in a PPD packet but was not available at this time. Planning Manager Wheeler stated that it was not common to process PPD applications, but City Council had directed that it might be the best way to go, given this particular project. If the PPD were approved, the more detailed plans would then be brought back for consideration by the Commission.
Minutes Planning Commission – October 25, 2012 PAGE 21 Principal Planner Morris added that an EIR had been performed for this project and had the appropriate plans. This was very similar to how the Summerhill project on Layola Road had been handled. Should the Commission decide to refer staff’s recommendation to Council and it were approved and the Precise Planned District process was reached, could the Commission remove details from the plan at that point in time? Yes. So, lodging or various aspects of the plan could be pulled? Planning Manager Wheeler stated that could also be done at this time.
Deputy City Attorney Rasiah suggested that two motions be made for certification of the EIR and the other for staff’s recommendations.
IT WAS MOVED (QUAN/ ) AND FAILED DUE TO NO SECOND
Vice Chairperson Quan restated the motion to read the EIR was sufficient.
IT WAS MOVED (QUAN/ ) AND FAILED DUE TO NO SECOND
Deputy City Attorney Rasiah stated that the motions had died for lack of a second. Another motion should address the merits of the project.
Planning Manager Wheeler asked if the Commission needed more information that would allow them to make a recommendation on the EIR.
Commissioner Reed was concerned about the less than 45 days that normally was allowed for review of an EIR. He would like to know how long the public had for review of Alternate 5.
Planning Manager Wheeler replied that the Draft EIR had been circulated for the 45-day public review period until September 17th. During that period of time, the revised application was received by the City. Once the public review was closed, the Final EIR before the Commission had been prepared, which incorporated the comment letters and responses by staff to all of those comments. It had also considered, as an alternative, the revised application. In the alternatives analysis performed for this additional alternative, staff reviewed each of the environmental topic areas studied in the Draft EIR for the 16-unit residential project and compared the impacts of the original project with the revised project, Alternative 5. It was determined that the impacts would be the same or less than the original project, so CEQA did not require a recirculation of the EIR. The Final EIR was published and the public had the opportunity to review it over the last ten days. The analysis of Alternative 5 was about five pages, not a full, detailed impact analysis. The conclusion was that there would be no new impacts or an increase in the severity of impacts that had originally been identified in the Draft EIR.
Commissioner Reed asked if there were no fundamental changes to the Draft EIR that would necessitate a CEQA “next step.”
Minutes Planning Commission – October 25, 2012 PAGE 22 Planning Manager Wheeler agreed that recirculation of the EIR was not required. The mitigations identified in the Draft EIR for the original project would also apply to the Alternative.
Commissioner Pentaleri acknowledged that all of the CEQA requirements had been adhered to; however, the purpose for the public comment period was to allow the public to comment on the EIR. Since Alternative 5 had been presented a mere ten days before the close of the comment period, the public did not have the 45 days prescribed for review and comments on Alternative 5, which was the very option being presented here. Just because some comments had been received within those ten days was not evidence that the public had full opportunity to make comments on this revised project. It was precisely because of public comments that other issues could come up that should be considered.
Commissioner Salwan had a similar concern. Although not legally required, time should be made available for public input. He would prefer to see 45 days from the last update.
Commissioner Reed agreed that the public should have more time for comments. However, the public comments heard this evening had not focused on the need for more time to review Alternative 5. He was not certain that a delay would be warranted.
Deputy City Attorney Rasiah noted that the Kimber Study Area designation in the General Plan would expire on December 14th, at which point, if the project was not approved and the time not extended, the parcel would revert to Private Open Space. As far as the extension was concerned, it would be done by the Community Development Director, if it was determined that the applicant had been proceeding in good faith. That was not something that the Commission would do.
Commissioner Chugh asked how a possible extension would be broached when taking into consideration the expiration date. Was that a possibility?
Planning Manager Wheeler said, “No.” The Community Development Director would have to take direction from the Council, if such a direction was given to extend the time period.
Commissioner Salwan noted that a possible extension that would allow conclusion of the process would not be because of the bad faith of the applicant but just because of the process.
Commissioner Chugh suggested approving or denying the EIR and allowing Council to make the final determination.
Commissioner Pentaleri clarified that he had been offering his reasons for not voting for approval of the EIR rather than not actually supporting the EIR.
Commissioner Reed suggested that he would second the motion for recommending the EIR. The motion was restated.
Minutes Planning Commission – October 25, 2012 PAGE 23 IT WAS MOVED (SALWAN/CHUGH) AND CARRIED BY THE FOLLOWING VOTE (6-0- 0-0-1) THE PLANNING COMMISSION – RECOMMEND STAFF’S RECOMMENDATION ON THE EIR WITH THE EXCEPTION THAT ENOUGH TIME FOR A COMMENT PERIOD BE ALLOWED.
Deputy City Attorney Rasiah asked for clarification on the comment period.
After some discussion, it was decided that the comment period should be extended 26 days from this date to November 20th, which was the date of the next City Council meeting.
Commissioner Reed asked who or how would this delay benefit.
Planning Manager Wheeler stated that the motion would not delay it. The Council meeting would be held on November 20th and the public could submit further comments on the Final EIR and staff would still respond to each comment. An opportunity would still be available for the applicant and the neighborhood to continue talking about possible changes to the project.
The motion carried by the following vote: AYES: 6 – Chugh, Lorenz, Pentaleri, Quan, Reed, Salwan NOES: 0 ABSTAIN: 0 ABSENT: 0 RECUSE: 1 – Bonaccorsi
Acting Chairperson Lorenz asked for comments regarding the PPD.
Commissioner Pentaleri believed the scale of the project, as proposed, was inconsistent with character of the existing neighborhood and he would not support the project. To bring this project into acceptable alignment would be so substantial, that it was impossible for the Commission to address all of the issues at this time. However, if a motion were made for approval, he would like to see the following specific conditions: 1) A specific limit be made on the total floor space; 2) Mitigation for any tree removal be achieved through onsite replacement without the option of lieu fees; and 3) Restrict onsite parking to a maximum of 50 spaces, which would be 50 percent more than the existing conditions and allow some modest increase in the intensity of the development.
Principal Planner Morris asked if he wanted a maximum of 50 spaces.
Commissioner Pentaleri stated that he did. He understood that it was currently 35 spaces.
Commissioner Reed suggested another condition that would result with every tree lost should be replaced.
Commissioner Chugh agreed that Commissioner Pentaleri’s suggestions would bring this project to a size that could work.
Minutes Planning Commission – October 25, 2012 PAGE 24 Acting Chairperson Lorenz expressed concern about “slicing and dicing a project and we don’t the detail on it.” He was concerned about the financial viability of whatever the project became. One speaker felt that modest upgrades would be acceptable; another mentioned a mutually agreeable proposal; and Ms. Broadwin’s list had provided acceptable expansion terms. He was impressed with the applicant’s flexibility in meeting those requirements. The next step after approving this Preliminary Precise Plan would be a Precise Plan, which would allow that detail and require a CUP. With a CUP, “We lay down the law.” If this project made it to the Precise Plan position, there would still be quite a hill to climb. He did not have enough information to “slice and dice” the project at this point in time.
Commissioner Pentaleri agreed that this very conceptual project should be rejected by the Commission and another conceptual plan should be brought forward that the community could agree upon. He believed that everyone was within striking distance of that kind of proposal.
Acting Chairperson Lorenz wondered “where are we” if this proposal were played forward and something came about that just would not work.
Commissioner Chugh believed that a great disservice to the applicant could be created by running them through the process of going through staff and the Commission’s approval and potentially the Council’s approval all to meet some imaginary timeline that had been self- inflicted a year ago. Did the applicant want to go through those phases, then come back to the Planning Commission for mitigations? One reason for agreeing with Commissioner Salwan’s suggestion for extending the public comment period to 45 (sic) days, because procedurally, if this ever went to litigation, he wanted to be able to say that everything had been done to ensure the opportunity had been provided for everyone to comment. Whatever was decided by the Commission, City Council would a vote on November 20th, which could overrule the Commission and more guidance could be given to staff concerning what sort of project should come forward in the future.
Acting Chairperson Lorenz commented that he was not anticipating what could happen with this PPD in the future at this time.
Commissioner Salwan believed that if this proposal were rejected tonight, not enough time would be available for the applicant to put together another one.
Deputy City Attorney Rasiah stated that the applicant could appeal the decision to the City Council.
Commissioner Salwan asked if the Commission would see the proposal after that.
Deputy City Attorney Rasiah stated that if the Preliminary PD was rejected by the Planning Commission and that decision was appealed to the City Council, the City Council would make the final decision.
Minutes Planning Commission – October 25, 2012 PAGE 25 Commissioner Chugh added that it would then come back to the Commission for every other step after that.
Acting Chairperson Lorenz agreed that the Commissioners would, eventually see a Precise Planned District.
Commissioner Salwan was not interested in being so prescriptive that the parking lot would be specifically limited to 50 parking spaces. However, he was interested in limiting some of the proposed uses, such as commercial uses (the business center, the conference or events center, the lodging), then allowing for the process to play out, allowing for review of the revised project and making a final determination. He would like to see the Club improved. It needed a lot of work, such as, deferred maintenance and improving the trees. If it could work, great. If not, it could be rejected in the future.
Commissioner Reed recommended that no lodging be part of the motion, because it was a Trojan horse and he did not want it to be exploited later.
Commissioner Pentaleri reiterated that restricted parking would accomplish the same objective as some of the other suggestions concerning size. He suggested that this application should be rejected to allow the applicant to continue to work with community to bring something to the Commission that would be acceptable. “We’re not there, yet.”
Commissioner Salwan’s motion was to approve staff’s recommendation with the exception to remove the business center, conference center and lodging. Also included was the suggestion regarding in lieu mitigation for replacement of trees. He was not ready to include a certain size for parking or for the size of the building.
Deputy City Attorney Rasiah clarified that he was moving the remainder of the staff recommendation apart from the certifying the EIR, which were Items 3, 4 and 5 in the Recommendations.
Commissioner Reed asked the maker of the motion if he would agree to some number of parking spaces, such as 80 spaces. It was a very important way to limit the size in the future and to ensure that a 40,000 square foot behemoth was not constructed.
Commissioner Salwan would agree to a number decided by the Commissioners.
Principal Planner Morris summarized the motion to include any mitigation for trees must be onsite, business center, conference center and lodging to be removed and an 80 parking-space limit be instituted.
Commissioner Chugh disagreed with any limitations added at this point in the project. At this stage of the game, he was inclined to reject the staff recommendation.
Minutes Planning Commission – October 25, 2012 PAGE 26 IT WAS MOVED (SALWAN/REED) AND FAILED BY THE FOLLOWING VOTE (3-3-0-0- 1) THE PLANNING COMMISSION – RECOMMEND PRELIMINARY PLANNED DISTRICT TO THE CITY COUNCIL.
The motion carried by the following vote: AYES: 3 – Quan, Reed, Salwan NOES: 3 – Chugh, Lorenz, Pentaleri ABSTAIN: 0 ABSENT: 0 RECUSE: 1 – Bonaccorsi
Deputy City Attorney Rasiah announced that the motion had not passed and no action had been taken by the Commission.
IT WAS MOVED (PENTALERI/CHUGH) AND FAILED BY THE FOLLOWING VOTE (2-4- 0-0-1) THE PLANNING COMMISSION – REJECT STAFF RECOMMENDATION AND NOT RECOMMEND APPROVAL TO CITY COUNCIL.
The motion carried by the following vote: AYES: 2 – Chugh, Pentaleri NOES: 4 – Lorenz, Quan, Reed, Salwan ABSTAIN: 0 ABSENT: 0 RECUSE: 1 – Bonaccorsi
Deputy City Attorney Rasiah announced that both motions had failed, but this item could still be appealed to City Council.
Acting Chairperson Lorenz called a recess for the stenographer at 10:45 p.m.
Vice Chairperson Quan left the meeting at 10:50 p.m.
Chairperson Bonaccorsi reconvened the meeting at 10:55. He announced that the meeting would be extended past 11:00 o’clock.
IT WAS MOVED (REED/SALVAN) AND CARRIED BY THE FOLLOWING VOTE (6-0-0- 1-0) THE PLANNING COMMISSION AGREED THAT THE FINAL HOUR OF THE HEARING WOULD BE SUSPENDED.
Item 5. FREMONT/THORNTON 7-ELEVEN – 36979 Fremont Boulevard - (PLN2012- 00146) - To consider an Amendment to Conditional Use Permit U-88-19 to modify an existing gas station by demolishing a drive-through carwash facility and replacing it with a new 2,200-square-foot convenience store located in the Centerville Community Plan Area. This project is exempt from the California Environmental Quality Act (CEQA) per CEQA Guidelines Section 15303, New Construction of Small Structures.
Minutes Planning Commission – October 25, 2012 PAGE 27 Chairperson Bonaccorsi opened the Public Hearing.
Katy Schardt, representative with Compass Commercial, asked for questions.
Commissioner Lorenz believed that the use of the site by 7-Eleven would be a better use than an abandoned car wash. He asked if the landscaping could be augmented and if some kind of a public art/focal piece could be added on the corner that would begin to establish a sense of place.
Ms. Schardt asked for direction regarding the art.
Commissioner Lorenz was not prepared to make a recommendation. However, he suggested that she work with the staff landscape architect to upgrade that corner and create that focal piece. He was open to whatever was decided upon.
Principal Planner Morris asked if he was asking for a piece of art.
Commissioner Lorenz wanted something that would create a focal point for that corner.
Other Commissioners had the following questions:
Commissioner Salwan had noticed that other 7-Eleven stores, especially the store on Central Avenue, had a lot of loitering. He asked how loitering, or hanging around, could be minimized. Ms. Schardt stated that a corporate policy existed to minimize loitering. Staff was trained to use management tactics to discourage loiterers. The first line of defense would be the Manager and the sales clerks. If that did not work, other procedures were used, such as, mosquito netting, which was a high-pitched noise that only the youthful people hear. Sometimes playing classical music deterred loiterers, as well. The ultimate line of defense was to call law enforcement for help if the existing personnel could not handle the situation. He asked staff for comments. Principal Planner Morris had not heard of any loitering problems. They would typically be handled by Code Enforcement. Associate Planner Kowalski added that Condition 10 had been specifically requested by the Police Department, which would require No Loitering, No Trespassing signs to be put up in the storefront window. Commissioner Lorenz asked if 7-Eleven would operate the gas station franchise, also. Would they have control of the vapor recovery system that was located in front? Ms. Schardt stated that the gas would remain branded as 76 through Conoco- Phillips and 7-Eleven would lease that portion of the property for the convenience store. No, they would have no control of anything having to do with the gas station.
Minutes Planning Commission – October 25, 2012 PAGE 28 Commissioner Pentaleri asked if it would be a similar arrangement to the 76 that was located on Blacow and Fremont. She believed that it was. 7-Eleven was in the process of expanding by rebranding the convenient store portion of gas stations.
Chairperson Bonaccorsi closed the public hearing.
Commissioner Lorenz asked if a Condition of Approval could require the gas station to move the vapor recovery system that was out front or modify it to be less unsightly.
Associate Planner Kowalski stated that the representative would like to respond.
Chairperson Bonaccorsi reopened the public hearing to allow the representative to respond.
Ms. Schardt replied that the lease would not allow 7-Eleven to make that kind of change as a tenant, because it was the property of Conoco-Phillips.
Commissioner Lorenz had noticed that changes were being made on the pump island to accommodate the store.
Ms. Schardt stated the change was to remove the kiosk.
Chairperson Bonaccorsi asked if the landscaping and public art would be under the control of 7-Eleven within their lease.
Ms. Schardt knew that they would be relandscaping the corner, so that augmenting the landscaping was already shown on the plan and it was within the scope of the project. Something described as a focal point or art could probably be accomplished within the landscaped area. She asked if it could be worded to make it subject to their rights within their lease and their ability to comply.
Principal Planner Morris stated that if staff heard from the applicant that they could not do the public art, staff would probably bring that item back to the Commission for discussion.
Commissioner Lorenz stated that the focal point could be trellises or something along those lines.
Ms. Schardt stated that his suggestion would help her.
Chairperson Bonaccorsi closed the public hearing, again.
Minutes Planning Commission – October 25, 2012 PAGE 29 Commissioner Lorenz asked staff what was within the Commission’s purview with regard to that vapor recovery system. Perhaps the landscaping could be used to disguise it.
Deputy City Attorney Rasiah replied that if the CUP applicant had no control of the vapor recovery system, then his suggestion could not be included in the Conditions as it could be inconsistent with the applicant’s lease.
Commissioner Pentaleri asked a question that he had received via email, which concerned the possible TOD Overlay. Those questions had been answered by staff earlier. He agreed that economic activity was vastly better than an unused facility. The potential for this intersection to be focal point had become a lost opportunity. What was the methodology for counting parking spaces for the 7-Eleven store? Twelve of the spaces at the refueling pumps would be counted toward the twenty. Was that the convention for this type of use?
Principal Planner Morris answered that it was. The majority of people using the convenience story would be buying gas.
Commissioner Salwan’s motion included the recommendations made by Commissioner Lorenz, which were to improve the landscaping and provide public art or some other focal point at the street corner, subject to staff approval.
IT WAS MOVED (SALWAN/REED) AND CARRIED BY THE FOLLOWING VOTE (6-0-0-1-0) THE PLANNING COMMISSION – FIND THAT THE PROJECT IS CATEGORICALLY EXEMPT FROM THE CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA) PER GUIDELINES SECTION 15303, NEW CONSTRUCTION OF SMALL STRUCTURES, WHICH EXEMPTS COMMERCIAL PROJECTS OF UP TO 10,000 SQUARE FEET ON SITES IN URBANIZED AREAS WHICH ARE ZONED FOR SUCH USES AND ARE ALREADY SERVED BY ALL NECESSARY PUBLIC SERVICES AND INFRASTRUCTURE; AND FIND THAT THE PROJECT IS IN CONFORMANCE WITH THE RELEVANT PROVISIONS CONTAINED IN THE CITY'S GENERAL PLAN. THESE PROVISIONS INCLUDE THE GOALS AND POLICIES SET FORTH IN THE LAND USE AND CENTERVILLE COMMUNITY PLAN ELEMENTS OF THE GENERAL PLAN AS ENUMERATED WITHIN THE STAFF REPORT; AND
FIND THAT THE REMOVAL OF FIVE PROTECTED TREES IS CONSISTENT WITH THE CITY TREE PRESERVATION ORDINANCE’S CRITERIA FOR TREE REMOVAL BECAUSE: THE TREES SUBSTANTIALLY IMPACT THE PLACEMENT OF THE PROPOSED IMPROVEMENTS, THE REMOVAL OF THE TREES WILL NOT ADVERSELY AFFECT THE APPEARANCE OF THE SUBJECT PROPERTY, NEW TREES AND LANDSCAPING WILL BE
Minutes Planning Commission – October 25, 2012 PAGE 30 INSTALLED, AND THE PROJECT WILL COMPLY WITH THE ORDINANCE- REQUIRED MITIGATION FOR THE LOSS OF THE TREES THROUGH PROVISION OF AT LEAST FIVE 24-INCH BOX SIZE TREES; AND APPROVE THE PROPOSED REMOVAL AND MITIGATION FOR FIVE PROTECTED TREES PURSUANT TO THE CITY’S TREE PRESERVATION ORDINANCE; AND APPROVE CONDITIONAL USE PERMIT AMENDMENT PLN2012-00146 AS SHOWN IN EXHIBIT “A,” BASED ON THE FINDINGS AND SUBJECT TO THE CONDITIONS CONTAINED IN EXHIBIT “B.”
The motion carried by the following vote: AYES: 6 – Bonaccorsi, Chugh, Lorenz, Pentaleri, Reed, Salwan NOES: 0 ABSTAIN: 0 ABSENT: 1 – Quan RECUSE: 0
DISCUSSION ITEMS
CLIMATE ACTION PLAN – Citywide – (PLN2011-00105) - To recommend the Final Climate Action Plan to City Council.
Staff requests that the following corrections be included in the staff report and recommendations to the City Council:
Staff report:
1. In the discussion of “Modifications and additions in response to City Council Direction”, item 2:
Amend action E-P6 as follows:
E-P6: Provide support and incentives to increase energy efficiencies and partner with others in the private sector, such as real estate professionals, to create and promote tools and incentives to achieve this goal.
Staff comment: This amendment is proposed in response to a request made during the October 17, 2012 public meeting.
2. In the discussion of “AECOM’s additions reflecting ‘best practices’ in the field, item 3: Replace action SW-A7 with new language, as follows:
SW-A7: Expand the existing food waste and compostable paper diversion program to include multi-family food waste and compostable paper diversion.
Minutes Planning Commission – October 25, 2012 PAGE 31 SW-A7: Institute programs for multi-family units to allow for the collection and composting of food waste and compostable paper where feasible.
Staff comment: The proposed language more clearly reflects the City’s current and planned efforts in this area.
3. Amend action W-C2 as follows:
W-C2: Collaborate with Alameda County Water District to implement voluntary water conservation and reclamation programs.
Staff comment: This amendment is proposed in response to a request made during the October 17, 2012 public meeting.
Recommendation:
1. Recommend that the City Council approve the Climate Action Plan with the following changes:
a. Chapter Three, Energy: Amend Action E-P6 as follows:
E-P6: Provide support and incentives to increase energy efficiencies and partner with others in the private sector, such as real estate professionals, to create and promote tools and incentives to achieve this goal.
b. Chapter Four, Solid Waste: Replace action SW A-7 as follows:
SW-A7: Expand the existing food waste and compostable paper diversion program to include multi-family food waste and compostable paper diversion.
SW-A7: Institute programs for multi-family units to allow for the collection and composting of food waste and compostable paper where feasible.
c. Chapter Five, Water: Amend action W-C2 as follows:
W-C2: Collaborate with Alameda County Water District to implement voluntary water conservation and reclamation programs.
Chairperson Bonaccorsi disclosed that he had spoken with Nina Moore prior to this meeting and he had email contact with David Stark and Tim May regarding the study session on October 17th.
Associate Planner Rakley introduced Josh Lathan with consulting firm AECOM, Kelly Kline, Economic Development Director, and Lori Marra, Environmental Services Division Environmental Specialist and asked if the Commission wished a 10-minute presentation or the shorter version. All details were already in the staff report.
It was agreed to hear the shorter presentation.
Minutes Planning Commission – October 25, 2012 PAGE 32 Associate Planner Rakley summarized that they had met twice with the Commission at the end of 2011; in early December, the Draft Climate Action Plan was recommended to the City Council with a number of changes; the Plan and the recommended changes was brought before the City Council on April 3, 2012, and these are the changes that had been made to the Plan since April 3rd.
Three actions deleted from the Plan were: 1) Removed language concerning green building requirement; 2) Removed upgrading references each time State revised its Building Code and adopting a residential ordinance that would be more stringent; and 3) Eliminated from Chapter 3,the Energy Chapter and from Chapter 5, the Water Chapter, the Residential Energy Conservation Ordinance idea (RECO).
Action L-C1 in the Land Use chapter was amended to include a reference to the document titled Ready, Set, Charge California – A Guide to EV Ready Communities. In response to a request from a stakeholder, an amendment was added to an existing action which stated that staff would reach out to members of the private sector to work on increasing energy efficiencies and providing partnering.
The Water Chapter was amended to add one word, “voluntary,” in front of the description of different types of programs that Alameda County Water District (ACWD) managed. Staff would partner with them during implementation, as well.
Josh Lathan, AECOM, stated that his company had been tasked to work with the City to develop additional best practices actions. He had reviewed the City’s extensive action list, reviewed contact-specific reports and data for either the Bay Area or the City of Fremont and reviewed existing Climate Action Plans that had been adopted throughout California and across the U.S. A short list had been culled down to the following five additional action items:
Action Item No. 1 – Establishing a commuter shuttle service that could reduce single- occupancy vehicle trips within the community, such as connecting trips between Amtrak, BRT, BART stations and business districts within the City. Action Item No. 2 – Establishing a property-assessed clean energy (PACE) program to allow financing of energy and water efficiency installations in residential and nonresidential programs. (The City already had a PACE program in which commercial, multifamily and nonprofit buildings were eligible to participate. This addition would allow access by single- family homeowners). Action Item No. 3 – Establishing a program to promote voluntary participation in PG&E’s solar heating rebate program and the new California Energy Commission, California Solar Initiative Thermal program, which would allow the installation of solar water heaters in buildings. Action Item No. 4 – Developing a outreach program to facilitate adoption of smart grid and other peak load shifting technologies in businesses and residential households. Action Item No. 5 – Developing a pilot program to extend the City’s existing efforts on solid waste diversion, specifically, food and compostable paper waste. (This new action would be a pilot program to help multifamily residential units to become involved with this program).
Minutes Planning Commission – October 25, 2012 PAGE 33 Chairperson Bonaccorsi opened the Public Hearing.
David Stark, Public Affairs Director with the Bay East, Association of Realtors, explained why realtors were interested in this subject. The residential realtor community supported voluntary energy efficiency and was excited about the opportunity to work with the City as the Climate Action Plan was implemented. He thanked staff for their proactive reaching out to his industry to be part of the Plan. They were happy with the current Plan and wanted to be built into the Plan, because they would be the City’s marketing department and involved with the implementation plan. Although signs of the real estate market were improving, the concerns his industry had with the RECO, the problems it could cause and the burdens it could place on homeowners and potential homeowners still existed.
Chairperson Bonaccorsi was intrigued with the PACE program and how property tax assessments would be used for energy upgrades. At the time of close of escrow, property taxes would be prorated. From a realtor’s perspective, how would that be accomplished, if the homeowner had done some upgrades?
Mr. Stark stated that in most California counties, PACE had not been rolled out, he did not know. Along with organized real estate, the City could partner with them, as well. Many voices were needed to speak to the decision makers and to make PACE a priority.
Tim May, Rental Housing Association, Southern Alameda County, local chapter of the California Apartment Association, thanked the City for their patience in this process. He was at that meeting a week, ago. The built-in measurable objectives pieces were something that would allow a better understanding of where the City was headed. His industry would like to, also, continue with partnering with the City where they could. At least one of their members had expressed interest in one of the recycling projects that was part of the Plan.
Nina Moore, Fremont Chamber of Commerce, stated that she was speaking on behalf of the Chamber in support of the recommendation and of the revised cap. Every change that they had requested had been incorporated into the revised proposal, such as, the elimination of RECO, elimination of the requirement that the City adopt local ordinances that exceeded the State’s minimum standard and the elimination of the green building standards for commercial buildings. They appreciated the use of incentives, such as the one being proposed by the City for commercial construction, along with other commercial incentives. They were also pleased to see the addition of a collaboration with local businesses of a local shuttle program, which was something the Chamber had been working on as part of a regional task force, and the development of the PACE program. They were particularly pleased to see the projected GHG reduction impacts and the cost analysis in each section. They hoped the opportunity would be taken to pursue the involvement of the City’s clean tech and high tech companies in achieving the GHG reduction goals and showcasing the City’s technologies both within the community and throughout the Bay Area. They had already requested that they be involved with any environmental commission or committee that might be formed at the City’s level.
Commissioner Lorenz assumed that she was also in attendance at the October 17th meeting.
Minutes Planning Commission – October 25, 2012 PAGE 34 Ms. Moore replied that she was not at that meeting, due to a speaking engagement, but she had notified staff of her opinion, as stated above. She had also met with Tim May and Dave Stark before the meeting.
Dr. Rich Godfrey acknowledged the strong work done by the Planning Commission and more so of staff. It had been a very transparent and public and democratic process, which included the Green Task Force appointed by Mayor Wasserman in 2008. It would help to lead the City in many directions. It would bring in the public and the business community, as well. When looking at greenhouse gases, it was difficult to see if progress had been made if there was no measurement. The metrics would be very important. He understood that a process would be put into place through PG&E and StopWaste.org, which would have some measurement of how the City performed over the past five and next ten years. Without that, it would be very difficult to measure the full success of this Climate Action Plan.
Chairperson Bonaccorsi closed the Public Hearing.
Commissioner Lorenz asked who the stakeholders were who attended the October 17th meeting, other than Mr. Stark and Mr. May. Regarding Action No. 1, the Shuttle Program, he suggested an amendment to add “the Altamont Commuter Express (ACE)” to the other forms of transportation.
Associate Planner Rakley replied that the other four were Fremont citizens who were interested in this work and in being involved with the implementation. She did not have their names with her at the Planning Commission meeting. They had not introduced themselves as representing any particular group or interest.
Chairperson Bonaccorsi recalled that Bus Rapid Transit (BRT) was going to be removed and he wondered the thought process for that.
Associate Planner Rakley said that the City had not pursued BRT, because it might be confusing and it was not big in the City. She would be happy to go either way, according to the Commission’s direction. Either way, it should be spelled out to keep it from being confused with BART.
Commissioner Salwan believed that the BRT had been referenced in the General Plan.
Deputy Director Schoenholz agreed.
Associate Planner Rakley asked if should be kept in, but spelled out and separated from BART.
Chairperson Bonaccorsi agreed.
Commissioner Pentaleri had come across a comment that this Draft Climate Action Plan did not satisfy the requirements of the Bay Area Air Quality Management District. Why? Wasn’t the Qualified Climate Action Plan an important implementation of the General Plan?
Minutes Planning Commission – October 25, 2012 PAGE 35 Deputy Director Schoenholz replied that if a Qualified Climate Action Plan met certain requirements with a certain level of quantitative analysis, it could be used as clearance, from a CEQA perspective, on projects that had been envisioned as part of that. While staff was going through the General Plan process with an EIR that would provide clearance for projects that would be within the scope of the General Plan, staff had decided that not much value was added in trying to make this a Qualified Plan. The EIR for the General Plan provided the same or greater benefit. Yes, the Qualified Climate Action Plan was an important implementation of the General Plan.
Commissioner Pentaleri recalled that he had made the same comments as Dr. Godfrey had just made regarding measurement. He had noticed that on page after page of this Plan, the specific actions were described with nonspecific verbs, i.e., promote, facilitate, encourage, work toward, consider, support, evaluate. He could see very little that was committed to achieve a specific level of performance in these individual actions.
Deputy Director Schoenholz stated that the public, the Commission and Council had exhibited definite interest to have metrics and to have more measurable outcomes, which was one of the reasons that AECOM had been brought on board. The Plan was a mix of different types of measures, some of them more concrete and some of them more aspirational. The mix in this Plan was very similar to the mix found in most Climate Action Plans. Some of the measures were meant to be notes of items that the City would want to explore and were added to the policy radar screen.
Commissioner Pentaleri was concerned that the lack of specific details showed a lack of expression of commitment. For example, if he, as a Project Manager, “worked toward” putting a road in and if he “encouraged” a sidewalk to be installed, he might be very unlikely to achieve his goals. He understood that some of the “implementation actions were mandated by other regulatory bodies and/or were part of ongoing programs in a State requirement for implementation of the City’s water efficient landscape ordinance occurring during development review process. It is important to note that staff resources are limited so it will be critical to pursue opportunities to leverage both outside funding and the efforts of other agencies in order to implement as many actions as possible.” This statement had occurred at the very back of the document.
Chairperson Bonaccorsi had the following questions and comments: It would be nice to have an online version of the Ready, Set, Charge California document on the website. The PACE should be done within the regulatory environment to encourage people to maximize any available tax deductions and not necessarily shift to PACE if it were over time and had less of a net tax benefit to them. Deputy Director Schoenholz stated that he did not know anything about the regulatory environment. He had made this comment last time around, which dovetailed with Commissioner Pentaleri’s comments. He understood that many of the measures were aspirational and not quantitative, but an Executive Summary, as was part of every staff report, would be useful with a public policy document.
Minutes Planning Commission – October 25, 2012 PAGE 36 Rather than having a compilation of the appendices at the very end, that information could be at the front of the document as a Table of Contents. On page 1-1 under Introduction, Setting and Context, Key Learning Points was an opportunity to highlight at the very beginning what had been done. A reference could be made right to the page here. On page 1-5, the City Council’s role in development of the Plan, as summarized below should be at the front. What other cities had Consultant Lathan or AECOM advised regarding their Climate Action Plans? Consultant Lathan replied that he had personally advised the Cities of Burbank, Mountain View, Shasta Lake, Redding, Fairfield and surrounding cities, and the City of Lee Summit, Missouri. He had seen nothing in this Climate Action Plan, other than the baseline inventory and the goals, that was unique to Fremont, which was the center of green and emerging technologies. Nothing had spoken to him about the City’s unique assets that should be leveraged. There should be an expressed outreach to the City’s industry leaders in our community about what could be done based upon their own product lines and what they were trying to do. A picture of an electric vehicle had been included in the document. It should be a picture of a Tesla, Model S. Another picture showed EV parking taken in San Francisco. It should be a picture of the EV parking in Pacific Commons. Again, unique stamping and branding it as a Fremont product. He knew one of the citizen participants and she had raised the concept of the two EV stations at City Hall during the discussion. Had there been some thought or resistance to the concept of having the EV stations being available to the public at large? Associate Planner Rakley had checked with Mark Collins, who was part of the team working on the MTC grant-funded project to purchase two electric vehicles and to install two charging stations. Since these were the first two “out the gate,” it had been decided that the City was not ready to provide for public use at this time, because staff time would have to be used to administer them and what to charge the public would have to be decided, among other issues. He would like to see consideration of how to make EV stations publicly available while installing them. Page 2-11, Under Regulate, Emission Reductions, Land Use and Mobility, a series of regulations was suggested, one of which was R-1, “Require employers to provide preferential parking for carpools”. He had suggested earlier creating an incentive that would be a reduction or having the equivalent of a density bonus if an EV parking spot were installed in transit corridors and PDAs. Would that be a worthy regulatory goal? Principal Planner Morris stated that standards of one percent had been put in for multifamily developments and parking projects. If the City built a parking structure, EV stations would be considered. He promised to extract the parking requirements from the ordinance and send them to the Commissioners. Planning Manager Wheeler recalled that the Planning Commission had recommended considering that suggestion. The staff still did not know the answer to the ratio and how much additional parking should be allowed per EV charging station.
Minutes Planning Commission – October 25, 2012 PAGE 37 He asked that it be considered through the prism of the Climate Action Plan as not simply restricted to TODs, but it should somehow be incorporated into the Climate Action Plan, if it was something the City would wish to pursue. Deputy Director Schoenholz could carry his suggestion forward, if the Commission wished to make that recommendation to the Council. Page 8-1, Implementation, stated the Climate Action Plan would be updated every five years. He would prefer that staff make a one-year update, so that five years down the road, the realization might occur that all the three to five-year targets had been missed. Deputy Director Schoenholz stated that Council was considering the establishment of a Sustainability Commission as a separate advisory body, which could be the role of that commission.
Commissioner Pentaleri supported the direction of that last recommendation. He questioned whether the Sustainability Commission would be able to report progress using these “squishy” verbs. His misgivings were that this document did not reflect any commitments and he would prefer something that would allow improved measurement of progress and to have a definition of the responsibility for the implementation of the specific actions and a definition of accountability. Without them, the goal was “fluffy.” Without those things, this document would not be a Plan, at all. It would be a statement of aspirations.
Chairperson Bonaccorsi agreed. He had understood that staff had actually recommended against the Sustainability Commission, so it was not certain. He believed the Planning Commission should take some ownership of that update, as well.
Peter Calthorpe had been quoted in the Land Use and Mobility chapter. He had said, “The goal of transportation is access, one movement or mobility, per se. Movement is a means not the end. So bringing destinations closer together is a simpler, more elegant solution than assembling a new fleet of electric cars and the acres of solar collectors needed to power them. Call it passive urbanism.” He believed in active urbanism and he did not believe passive urbanism really worked. He wanted a fleet of electric cars and he wanted Tesla and Karma Fisher and Chevy Volt to succeed. Seventy-seven percent of the City’s residents commuted by themselves and people needed to be taken where they wanted to go, not where one would like them to be in order to accomplish these achievable results. This was not the goal that Fremont should want to be espousing. We should have electric fleets wherever possible.
The California Youth Energy Services program had been mentioned eight times in the report. A lot of fluff could be pared down to “what were we trying to do? How do we get there?” Having the annual reviews would give that more focused attention to how the City was doing on the achievement gap and if the actual goals had to be revisited.
Commissioner Pentaleri stated that the SWR-2 stated, “Comply with the California Green Building Code.” He would feel better about this document if, right up front, a statement was made to explain what the City planned to do to control GHGs with the aspirational goals listed somewhere else. It was important that the limit of what the city could do should be stated; staff resources were limited, etc. It would be very modest and, oh, by the way, we’re doing this in the context of all these peripheral things that were happening that were outside of the City’s control.
Minutes Planning Commission – October 25, 2012 PAGE 38 Chairperson Bonaccorsi called a recess for the stenographer at 11:57 p.m.
Chairperson Bonaccorsi called the meeting back to order at 12:05 a.m.
Commissioner Lorenz made the motion with the following recommendation:
Add the one-year review. Focus reports on quantitative measurements and achievements in as tangible a way as possible. Explore options for EV parking in TODs. Change pictures in report to show Tesla automobiles and the City’s bank of EV parking spaces. In the implementation phase, leverage the City’s industry partners in EV and clean tech to improve the cap and showcase local industries. Implementation of PACE with sensitivity to incentives and tax credits for maximizing consumer benefit. Implementation Chapter 8 to be moved up front with an Executive Summary, so to include 2008 goals of the Council directive to reduce GHG by 25 percent by 2020 over the 2005 baseline.
Chairperson Bonaccorsi added a friendly amendment that the achievement gap should be shown right up front, also.
Deputy Director Schoenholz thanked Associate Planner Rakley for her good work that had brought this item to fruition.
IT WAS MOVED (LORENZ/PENTALERI) AND CARRIED BY THE FOLLOWING VOTE (6-0-0-1-0) THE PLANNING COMMISSION – RECOMMEND THE CITY COUNCIL APPROVE THE CLIMATE ACTION PLAN
The motion carried by the following vote: AYES: 6 – Bonaccorsi, Chugh, Lorenz, Pentaleri, Reed, Salwan NOES: 0 ABSTAIN: 0 ABSENT: 1 - Quan RECUSE: 0
MISCELLANEOUS ITEMS
Information from Commission and Staff: Information from staff: Staff will report on matters of interest. Report on actions of City Council Regular Meeting Principal Planner Morris announced that a community meeting would be held on October 31st during the day for the development community regarding multifamily guidelines.
Minutes Planning Commission – October 25, 2012 PAGE 39