Planning Commission Minutes
January 18, 2022
3. CDP-430-21 File No. 2021-018 – Coastal Development Permit Heritage Tree CDP-430-21 and Heritage Tree Removal Authorization Removal for construction of a new single-family residence, garage and Authorization accessory dwelling unit on an undeveloped lot at TBD Olympian Way (APN 023-037-030) located approximately
1,450 feet northwest of the intersection of Olympian Way and Grand Avenue.
Recommended CEQA Action: Class 3 Categorical Exemption, CEQA Guidelines Section 15303.
Contract Planner Garcia presented the staff report.
Commissioner Hauser understood that there is no variance requested and it is a residential lot, she wanted to understand what the job of the Planning Commission was and what they are reviewing.
Dep. Planning Director Murdock encouraged the Commission, when acting on permit, to focus on the findings for approval and take all the evidence from the staff report, written report, presentation and any testimony offered by staff, public and applicant at this hearing. They can weigh all that evidence to determine whether or not the Commission can make the findings. He stated that, on this particular project, the Planning Commission’s action is limited to 1) entitlement in the coastal development permit and focused on determining whether the proposed development as defined in the municipal code complies with the city’s adopted certified local coastal program. He stated that there are policies based in the Coastal Act related to preservation and protection of coastal resources, visual resources, etc., coastal hazards, etc., including design review that they operationalized through applying the city’s adopted design guidelines. He stated that the findings are set forth in the staff report and the Commission’s job is to weigh all the evidence and determine whether they can make the findings for the project as proposed and conditioned by staff.
Commissioner Domurat stated that it appears that the heritage tree in question had an arborist report that said it was a dead tree but, if it is a dead tree, it is a dead stick and he asked why they were looking at it as approving removal. He thought, once you get an arborist report saying that the tree is not a viable living species, then it should not even requested to be reviewed by the commissioners, and he asked if he was misreading something.
Dep. Planning Director Murdock stated that Contract Planner Garcia can speak to what the arborist report says for this tree, and he will look at the exceptions from the heritage tree permit to determine whether a dead tree is exempt, adding that he thought it is not.
Contract Planner Garcia stated that the heritage tree proposed for removal has been identified by the arborist to be dead and overgrown with ivy and recommended the Planning Commission Minutes
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removal of the tree to allow for the development. He stated that the location of the tree is where the proposed driveway retaining wall and patio improvements are to be located.
Dep. Planning Director Murdock explained that the city’s heritage tree preservation ordinance is codified in Title 4, Chapter 12 of the Municipal Code which sets forth criteria for evaluating a heritage tree permit and it doesn’t specifically exempt a dead heritage tree from the requirement for a permit, but it allows the Commission to consider the condition of the tree with respect to disease, general health, damage, public nuisance, danger of falling, proximity to existing or proposed structures. He stated that several of those have some implication for whether the tree is dead as it relates to the findings.
Michael O’Connell, applicant, stated that they reviewed all the conditions from Planning, Building, Fire and Public Works and they didn’t take any exceptions to those. He wanted to point out on their thinking that they had an unusually configured site as wide in the front and steps in and they had an opportunity to do something different than what they see on the other houses on the street where they have to be attached to the garage to make it work. They were seeing if they can create a usable outdoor yard which is in the front and is on the same plane as the main living level. The garage is on the ground floor, and the back yard is essentially the third floor. On the downhill side, they have the opposite problem as a lot of houses don’t have a front yard and they require decks which don’t do very well in this environment which is why they liked the concrete wall to provide that space as with this environment, it will have to be replaced in 10-15 years. They were able to create the space on the main floor as most of the houses on the downhill side don’t have good functional feasible yard. They were taking advantage of that and put it in the extra space they have in the front of the house and it also provides a larger setback from the neighbor.
Chair Nibbelin opened the Public Hearing.
Dep. Planning Director Murdock introduced the speakers.
Paul Totah, Pacifica, stated he is a member of Tree City Pacifica. He stated that it was a beautiful project and they were just concerned about the erosion from the tree removal.
They were hoping that no trees will be cut down until a building permit has been issued and hoping that any heritage tree removal will have a 3:1 replacement ratio and 1:1 for any other tree removal or in lieu fees collected so the trees can be planted on another site.
Leo Leon, Pacifica, stated that he had some suggestions and concerns. He referred to the design review LCLUP hillside development, stating that large amounts of cut and fill are unattractive on hillsides and can have a detrimental effect on the immediate and surrounding environment. He stated that Olympian Way has no sidewalks and is very narrow. He stated concern about the number, size and number of trips of the trucks because of amount of soil being removed and problem of trucks becoming stuck on the street and asked that a condition address these concerns. He also stated there are numerous necessary retaining walls that cross the entire project on at least three levels Planning Commission Minutes
January 18, 2022
and a wrap around on the sides as required by other conditions. He referred to the geologic map review addressing landslides, etc., and have a peer review on these issues.
Gail Benton-Shoemaker, Pacifica, stated she was a member of Tree City Pacifica. She referred to the process revising the heritage tree ordinance and she hoped it will make clear the definitions of heritage trees and logging operations and all the steps that will make the Commissioners’ jobs easier as they won’t have to decide on a case by case basis on replacement requirements, etc. She mentioned that a Councilmember suggested a moratorium be put in place until the revised ordinance is adopted, and their organization supports that idea. She mentioned her concerns on this project, and her suggestions if project is approved.
Ila Homsher, Pacifica, stated that she lives on Olympian Way and mentioned some of her concerns regarding the project, such as encroachment of public right-of-way, etc,, and her suggestions for modifications of the site plan to respect the right-of-way, as well as concerns about the height of the project, pipes, retaining walls, etc.
Kathy Gust, Pacifica, stated that she lives on Essex Way, downhill from the project, and felt she was at the most risk for any adverse effect and concerned about how the project will adversely affect her home, stating that she submitted her concerns, adding that the main concern was the drainage with so little undeveloped property on the site. She also had concerns on why they pulled the house so far down the lot, as well as the retaining wall.
Mr. O’Connell addressed some of the comments. He raised the issue of the retaining wall encroaching along Ms. Gust’s frontage and they will adjust that. He stated that the drainage is currently designed in accordance with the city’s standards and the detention pipe is sized to detain the difference between the existing runoff from the site and the additional runoff from constructing the house and driveway. He stated that there was one bubble up box and they can easily add additional bubble up boxes, etc. to provide equalization of the flow or split the drainage areas into two and have an additional detention pipe near the top of the site that would receive runoff from the garage and driveway and the left half of the house. He stated that it ultimately has to go down the hill and dissipate. He stated that the real solution would require cooperation from the neighbors and they would be happy to utilize some of the existing drainage and there is a ditch that receives runoff from a pipe that collects runoff from an inlet. He thought it would be easy to install a new pipe behind Ms. Homsher’s house to receive part of the flow from their site and connect it into a pipe to bypass the drainage patterns on the site.
Chair Nibbelin closed the Public Hearing.
Commissioner Domurat referred to the drainage and landscaping, and asked if there was any consideration given to trapping some of the water for future use during dry conditions and they can use it for landscaping.
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Mr. O’Connell stated that it was a great idea but the problem is that they get all the water when they don’t need it and you would have to store that water all winter long to use it when needed in the dry season.
Commissioner Hauser stated that the Council has used the 3:1 heritage tree mitigation ratio as well as the 1:1 non-heritage tree mitigation ratio in the past for projects that have some more standards and that looks like 12 trees will be replaced and she would like the applicant to install seven 24-inch box trees and she asked if they would be willing to do.
Mr. O’Connell stated that he was trying to clarify with Mr. Brinkman on how many trees were already proposed.
Mr. Brinkman stated that there is one heritage tree and four non-heritage trees are proposed to be removed. He thought it would result in replanting of 3 trees for the heritage tree removal and 4 trees for the non-heritage tree removal. He stated that they currently only have one tree shown to replace the heritage tree, but they can look into that.
Commissioner Hauser concluded that she was hearing that 7 would be acceptable. She didn’t understand that they were on the neighbor’s property, and they would be willing to use the 24-inch tree size.
Mr. O’Connell responded affirmatively.
Commissioner Ferguson liked the idea of tying drainage to the existing public facilities on Essex, and he wasn’t sure how they can make that condition of approval because it would probably involve several other parties. He appreciated their willingness to go that route which is probably the best way for all parties involved, and he asked if there was a mechanism that the city has for making that a condition if it requires a third-party involvement.
Dep. Planning Director Murdock thought, in concept, it seems like a superior drainage solution, but his concerns are twofold. One is legal in that they haven’t noticed the project to include that scope of work which extends outside of the project area and involves property owned by others who are not party to the current application. Then, from a practical standpoint, he didn’t know if they would be able to assure that it would be accomplished as indicated, given the number of parties involved, and he would be hesitant to recommend that the Commission go down that path at this point in time. He stated that nothing would prevent the applicant from returning with an application to include that development when the conditions were appropriate, and the Commission may encourage him to pursue that type of modification to the project. He didn’t know if the Commission would be able to approve it at this meeting, given the public notice provided for this project.
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Chair Nibbelin stated that he was in the same place as Commissioner Ferguson and he would at least want to articulate the Commission encouraging that direction but he recognized that it may not be something they can impose with a condition. If that can be feasibly done, it would be a good path forward.
Mr. Messinger concurred with Dep. Planning Director Murdock and would add that it would also require city analysis of the flows and whether the facility they are suggesting tying into can handle the flows and how many properties would be connecting to it. He thought it was premature at this point.
Chair Nibbelin asked if the Commissioners had any deliberations or wanted to add anything.
Dep. Planning Director Murdock wanted to add some perspective on a couple of points raised during Commission deliberations. Regarding the storm water design, they have endeavored through the conditions of approval to make sure that the project does incorporate the recommendations of the geotechnical engineer and in one condition of approval, the applicant would be required to incorporate all the recommendations, which would include any drainage recommendations, potentially additional sources of outfall for the stormwater drainage and a separate condition requires finalizing the drainage plan for the project and they think there is currently measures in place to ensure that the project is safely designed in terms of stormwater drainage. Regarding tree replacement, he continues to have some discomfort with requiring the ad hoc replacement of trees at a particular ratio, especially for trees that are not heritage trees. He stated that the city’s current heritage tree ordinance does provide the Commission discretion to require replacement planting for removal of a heritage tree but does not provide any authorization or requirement for non-heritage trees and they would need to discuss that non-heritage tree replacement requirement further. Regarding heritage trees, he is having a hard time squaring some of the earlier conversation on the TBD Talbot project about stability of steep hillsides and tree plantings with the Commission’s desire for so many large trees to be potentially installed on the site as it is not a large site and, ignoring the geotechnical considerations, there are limits due to good forestry practices with the number and type of trees that a site can healthfully sustain. He asked that any desire for replacement plantings for the heritage tree to include a clause that up to a particular number or ratio with a recommendation of good forestry practices from a licensed landscape architect or qualified arborist or something along those lines so they are not creating an unsuitable condition for the helpful development of the trees should the Commission go that route.
Commissioner Hauser appreciated the insight and thoughtful analysis, and stated that the difference between the continued item they discussed earlier which was an untouched slope and a project proposing a lot of retaining walls and creating spaces where there are appropriate places for those trees, and she didn’t think a home with six bedrooms having seven 25-inch box trees are a lot to ask as it is a lot of house. She appreciated the applicant volunteering to plant those trees and would be amenable to him.
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Vice Chair Berman referred to a couple of points for which they received public comment on and to clarify with staff to confirm the profit of reviewing more detailed designs in the plan, given that they are at the planning stage of the project. She acknowledged concerns with qualified structural engineering review of the retaining walls about it being safe to assume that the thorough review will occur during the building permit phase.
Dep. Planning Director Murdock stated that there was some work that could be done in the future on the language on that particular condition and they included addressing the city engineer’s concerns about ensuring that structures in the right-of-way are safely constructed and that may reflect a misunderstanding in the past that projects in the rightof-way don’t require building permits which is untrue as they do require building permits even though they are in the public right-of-way. Not only will they be subject to review for impacts to the right-of-way and traffic safety issues, etc., that are in the domain of the city engineer, but also subject to what was intended as the peer review and is an additional level of review during the building permit review phase by the city’s qualified civil and structural engineers that they have on their consultant staff and would review them on compliance with the California building code. He thought an appropriate level of review is already included with the requirement for a building permit for both retaining walls in the public right-of-way and on private property and are both subject to the same structural design review.
Vice Chair Berman stated that there were questions about the truck trips for the hall route that will be needed for the grading at the site and she appreciated that there is typically a COA which is included with this project as well, so that, if there is any destruction to the public right-of-way due to the development of the site, the applicant will amend it or replace it. She wanted confirmation that it is true, and that the hall route for grading at the site is something that is considered during the building permit process for construction management plans.
Dep. Planning Director Murdock stated that maybe Contract Planner Garcia can doublecheck which condition number relates to damage to the public right-of-way by the project. He will address the traffic control plan issue and the hall route issue. He stated that the city does not have a haul route ordinance where the City requires approval of a haul route and that is something Public Works is aware of in considering how they can address it. He stated that it may be within the Commission’s discretion potentially to seek to address that point if there were specific safety issues and if the condition has in mind related to this project and its construction phase activity. He thought maybe more directly related to this project is requiring approval of a construction traffic control plan to allow safe ongoing operation by vehicular and pedestrian traffic with the addition of a construction related activity and equipment and any material staging. He stated that they have language ready that would recommend addressing that traffic control planning component of the project when it is the desire of the Commission to hear that.
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Vice Chair Berman suggested they hear it now unless any Commissioners are opposed to that.
Dep. Planning Director Murdock then read the draft language to the Commissioners.
Chair Nibbelin thanked him for that information.
Vice Chair Berman thought that addressed the concerns she heard from the public that weren’t addressed at this time.
Chair Nibbelin asked if a motion was in order or any other concerns.
Commissioner Hauser stated that she would be happy to make the motion inclusive of the two items the applicant has volunteered, i.e., the removal of the encroachment if that is the appropriate word or realigning of the driveway so the neighbor’s side yard is accessible and the inclusion of seven 24-inch box trees that must be irrigated and if the applicant abandons the project, having demolished the trees, the trees are replaced.
Chair Nibbelin suggested that she make the motion and they will incorporate that.
Commissioner Hauser moved that the Planning Commission FINDS the project is exempt from the California Environmental Quality Act; APPROVES Coastal Development Permit CDP-430-21 and Heritage Tree Removal Authorization by adopting the attached resolution, including conditions of approval in Exhibit A; and incorporates all maps and testimony into the record by reference including the two conditions she added.
Commissioner Ferguson noted that they didn’t include the condition of the traffic control plan to reviewed by city engineer and he asked if it was possible to include that in the motion if amenable to the Commissioners.
Chair Nibbelin stated that they can if Commissioner Hauser is open to that friendly amendment to include the language.
Commissioner Hauser stated that she was willing to amend her motion to include the traffic control plan.
Dep. Planner Director Murdock stated, that before seeking a second to the motion, he would read specific language to address those three points to have a clear indication of what the requirements would be for the project.
Chair Nibbelin asked him to go ahead and they will then confirm with Commissioner Hauser that it tracks her intent of the motion.
Dep. Planner Director Murdock then said the first was, prior to issuance of a building permit or encroachment permit, and as agreed to by the applicant, the applicant shall Planning Commission Minutes
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revise the project plan to confine the driveway and associated improvements within the public right-of-way, such as retaining walls to within the frontage of the project site. The second is, prior to issuance of a building permit, and as agreed to by the applicant, the applicant shall revise the landscape plan to include installation of seven 24-inch box trees to replace trees removed by the project in a species and placement to the satisfaction of the Planning Director, and lastly, prior to issuance of a building permit, applicant shall submit a traffic control plan that addresses construction phase, vehicle operation, parking, as well as material staging and that shall ensure continued vehicular and pedestrian access through and along Olympian Way, subject to review and approval by the City Engineer. With all these, he will give Mr. Messinger an opportunity to make any adjustments that may be required.
Chair Nibbelin wanted to confirm that Mr. O’Connell indicated earlier, particularly with condition 2, that it was something he was agreeable to.
Mr. O’Connell agreed.
Chair Nibbelin asked Mr. Messinger if there was anything he wanted to add.
Mr. Messinger stated he had nothing to add.
Chair Nibbelin concluded that the language tracks with the intent of her motion.
Commissioner Hauser agreed.
Commissioner Domurat stated that there was also a concern by several speakers about not removing any trees until such a time as a permit is provided to the applicant, and he asked if that was a realistic condition that they don’t move anything until they are ready to construct.
Dep. Planning Director Murdock thought it was a reasonable timing related condition.
He stated that the Commission’s authorization to remove the heritage tree is necessitated by development of the project and, should the project not have a reasonable chance of moving forward because it hasn’t obtained a building permit, removal of the heritage tree could be reasonably concluded to be premature.
Commissioner Hauser stated that she does a lot of construction projects, and the reason she didn’t include that language is because there are lots of times where people need to get a grading permit or state improvement permit and start work such as rainy season requirements before getting a permit and that would be like the foundation of the rest of the building. She forgot that it wasn’t included in the condition and she tried to cover it with language that said, if for some reason the project is abandoned, those replacement trees would still have to be planted. She stated, if the applicant is amenable to the language that Commissioner Domurat suggested, she would be happy to include it but, if not, she would suggest adding the language she mentioned.
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Dep. Planning Director Murdock stated that his observation at this point is that he understands Commissioner Hauser’s sentiment of the site preparation requirements, etc., but very often, when a project doesn’t proceed, it is because the applicant has had some sort of hardship, financially or otherwise, and it would be difficult for staff to compel an applicant to replace a tree that has been removed, such as financially insolvent and do not have the means to do so or couldn’t be readily located or brought back to Pacifica, etc., which is one practical difficulty with that approach as compared to the other. He stated that there is no guarantee a project will move forward even when a building permit is issued, but at least it allows them to get closer to that point in time and it is demonstrated that they provided other payment of fees, etc., and a heritage tree removed is not immediately replaced in terms of size, etc.
Commissioner Hauser thought that makes sense. She asked Chair Nibbelin if it would be acceptable to ask the applicant his thoughts.
Chair Nibbelin agreed, and asked Mr. O’Connell if he can speak to this discussion.
Mr. O’Connell thought it was a good idea, as he would not to strip all the vegetation off the site through the rainy season. He was waiting to remove vegetation so they are ready to go.
Chair Nibbelin asked Commissioner Hauser if the timing of condition of removal of trees to a point at which any permit is proceeding.
Commissioner Hauser thought it was a building permit that would cover the structures and not just a demolition or grading permit.
Vice Chair Berman was not opposed to the direction of this discussion, but she wanted to add consideration of good forestry practices. She thought the arborist report stated that several of the trees on the site were in poor condition which is more hazardous to keep them rather than to remove them under the watch of an arborist. She thought this is a site where having dead heritage trees stay there could be more harmful than not.
Chair Nibbelin thanked her, stating that it was a helpful perspective. He then stated he would bring it back to Commissioner Hauser as the owner of the motion.
Commissioner Hauser thought it was a good point, and she was inclined to leave the motion as it currently is without the additional language, but could add language about good forestry practices if Dep. Planning Director Murdock thought it was appropriate, but she was happy with where it was now.
Chair Nibbelin asked for a second to the motion as it is currently.
Commissioner Ferguson seconded the motion as it stands.
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Dep. Planning Director Murdock took a verbal roll call.
The motion carried 7-0.
Ayes: Commissioners Berman, Domurat, Ferguson,
Godwin, Hauser, Leal and Chair Nibbelin
Noes: None