Historic Preservation Commission
Staff Report
December 1, 2021
Item No.: H1
FILE NO: MINCOA-16810-2021
Appeal of a Minor Certificate of Appropriateness (MINCOA-16810-2021) to install a four (4) foot tall open wooden and hog wire fence along the front and side property lines within the front yard setback.
ADDRESS: 332 Chester Place
APPLICANT: Kristy Therrien
PROJECT PLANNER: Alan Fortune, Assistant Planner
ENVIRONMENTAL REVIEW: This project is exempt for the California Environmental Quality Act (CEQA) pursuant to Section 15301, Class 1 (Existing Facilities) of the California CEQA Guidelines.
RECOMMENDATION: Uphold the Planning Division’s denial of File No. MINCOA 16810-2021.
The Historic Preservation Commission continued this item from their November 3, 2021 Meeting to further discuss the item. The Commission also directed staff to confer with the City Attorney to determine the Commission’s ability to set conditions on D iscussion Items. Staff has attached the staff report and attachments from the November meeting for reference.
Staff received public comment , in the form of videos and photographs, after the publication of the November 3, 2021 agenda . All public comment received after the agenda’s publication and before the start of the Meeting was shared during the discussion of that item. The public comment can viewed at the following link: https://www.dropbox.com/sh/fz293991ew35dsl/AACGVfT9iXK9R5_IbIAU1chua?dl=0 Be advised that it may contain sexual and/or explicit material.
ATTACHMENTS:
1: November 3, 2021 Meeting Staff Report
2: Application for MINCOA 16180-2021
November 3, 2021 Historic Preservation Commission Meeting Staff Report – Item No. G5
File No.: MINCOA 16180-2021
3: Decision Letter for MINCOA 16180-2021
4: Letter of Appeal of MINCOA 16180-2021 Decision
5: Historic Resources Inventory Form
6: Site Photographs
7: Slide Presentation
Historic Preservation Commission
Staff Report
November 3, 2021
Item No.: G3
FILE NO: MINCOA-16810-2021
Appeal of a Minor Certificate of Appropriateness (MINCOA-16810-2021) to install a four (4) foot tall open wooden and hog wire fence along the front and side property lines within the front yard setback.
ADDRESS: 332 Chester Place
APPLICANT: Kristy Therrien
PROJECT PLANNER: Alan Fortune, Assistant Planner
ENVIRONMENTAL REVIEW: This project is exempt for the California Environmental Quality Act (CEQA) pursuant to Section 15301, Class 1 (Existing Facilities) of the California CEQA Guidelines.
RECOMMENDATION: Uphold the Planning Division’s denial of File No. MINCOA 16810-2021.
CRITICAL ISSUES:
Set Precedent for front yard fencing the block.
BACKGROUND:
On September 8, 2021, a Minor Certificate of Appropriateness MINCOA 16810-2021 (Attachment 2) was submitted by Kristy Therrien for the proposed installation of a four (4) foot tall open wooden and hog - wire fence along the front and side property lines within the front yard setback on the property located at 332 Chester Place in the Wilton Heights Historic District. The property is developed with a 1,798 square- foot single-family dwelling on a 9,795 square foot lot. Surrounding the subject property to the east and west are single-family dwelling units, to the south is a 32 -unit apartment building, and to the north is a two-unit residential property and a medical clinic. The primary structure on site was constructed in 1920.
The Wilton Heights Historic District surveys identify the architectural style of the dwelling as Craftsman style and that the property is “contributing.”
November 3, 2021 Historic Preservation Commission Meeting Staff Report – Item No. G3
File No.: MINCOA 16180-2021
On October 13, 2021, Planning Staff issued a decision denying MINCOA 16810 -2021 (Attachment 3) for the installation of the proposed fence. Staff reviewed the project and determined that the project constituted a significant change, which based on previous Commission direction, is not appropriate for approval under a Minor Certificate of Appropriateness.
On October 18, 2021, the applicant submitted a letter of appeal (Attachment 4) to the Planning Division, contesting staff’s denial of the proposed installation of the fence. The appeal letter provides reasoning as to why the applicant believes a front yard fence is necessary for the safety of her home and neighborhood.
ANALYSIS:
1. Design of the Fence: Staff reviewed the proposed style of the fence and while researching appropriate fence designs, found similar fence designs in the book “Outside the Bungalow” by Paul Duchscherer and Douglas Keister. Staff’s opinion is that the design is compatible with the Craftsman Bungalow style provided the fence is setback so that plants can be planted on each side of the fence.
2. Location of the Fence: Staff’s opposition to the proposed project is that the block in question does not have existing front yard fences. The project therefore would constitute a significant change to the character of the district. Based on previous direction by the Commission, Staff does not believe it is appropriate to approve such a project by a Minor Certificate of Appropriateness, which is intended for pr ojects that will not have significant changes to historic resources. In Addition, the approval of this project would set a precedent for this block, neighborhood, and the Wilton Heights Historic District. Should the Commission wish to consider such a precedent setting application, the appropriate process would be a Major Certificate of Appropriateness, which would require approval of the Commission
CONCLUSION:
As previously stated this project could have a significant effect on the historic character of the property and the neighborhood. The Minor Certificate of Appropriateness application is intended for projects that are minor in nature and will not, potentially, have a significant adverse effect on the property and district.
Staff therefore denied this project. If the Commission wants to consider such a request, the appropriate process is a Major Certificate of Appropriateness.
ENVIRONMENTAL REVIEW:
November 3, 2021 Historic Preservation Commission Meeting Staff Report – Item No. G3
File No.: MINCOA 16180-2021
Staff has determined that this project is exempt for the California Environmental Quality Act (CEQA) pursuant to Section 15270 of t he California CEQA Guidelines , because disapproved projects are not subject to CEQA.
ATTACHMENTS:
1: Application for MINCOA 16180-2021
2: Decision Letter for MINCOA 16180-2021
3: Letter of Appeal of MINCOA 16180-2021 Decision
4: Historic Resources Inventory Form
5: Site Photographs
6: Slide Presentation
From: Fortune, Alan
To: Starns, Geoffrey
Subject: FW: 332 Chester Place Minor Certificate of Appropriateness Permit Date: Monday, October 18, 2021 2:50:00 PM
From: Kristy Therrien <[email protected]>
Sent: Monday, October 18, 2021 1:17 PM
To: Fortune, Alan <[email protected]>
Subject: Re: 332 Chester Place Minor Certificate of Appropriateness Permit
CAUTION: This email originated from outside your organization. Exercise caution when opening attachments or on clicking links from unknown senders.
Hello Alan, I guess you can consider this my official appeal letter. :) I thought I was waiting for a guideline or something hahah. :)
My appeal is on the basis of safety and preservation of my historical house. Without having a barrier from my home and the vagrants that hide, steal and abuse my property, there isn't much in the way of historical preservation in my home. I am in the outlying area of Wilton Heights, bordering Park Ave, which is unsafe and an attractant for thieves, drug dealers, druggies, and prostitutes, as my police reports have recorded. (This is, in part, because my house is across the street from the medical center on Chester Place, and they have frequent break-ins, barred windows, a large iron gate, graffiti, etc. I even have had graffitti in my sidewalk, in front of my house.) I look forward to letting the historical society see why I am requesting this necessity. :) Thanks so much for your time!
-Kristy Therrien
________________________________
Kristy Therrien
Owner | . EXCAVADE
. |
Rare. Earth. Design.
On Thu, Oct 14, 2021 at 3:45 PM Fortune, Alan <[email protected] > wrote:
Hello Kristy,
Please see the attached decision letter for the proposed fence at 332 Chester Place in Pomona. The appeal period is for 20 days but if you would like to be on the agenda for the November 3, 2021 meeting, please submit a letter of appeal as soon as possible. There is no fee for the appeal and you may submit electronically as an attachment to this email. Please let me know if we should anticipate you letter of appeal soon. The next meeting after November 3 is December 1, 2021.
Please reach out to me if you have any questions. Thank you.
Regards,
----
Alan Fortune
Assistant Planner
City of Pomona Planning Division
(909) 620-2449
[email protected]
332 Chester Place (Appeal of MINCOA 16810-2021)
Site Photographs
332 Chester Place
Appeal of MINCOA 16810-2021
Applicant: Kristy Therrien
Historic Preservation Commission Meeting – November 3, 2021 Agenda Item H2
Timeline
• September 8, 2021 – Application for MINCOA 16810-2021 was submitted by applicant to the Planning Division
• October 13, 2021 – Staff issued a decision denying MINCOA 16810-0221 for the installation of the proposed fence.
• October 18, 2021 – the applicant submitted a letter of appeal to the Planning Division contesting staff’s denial of MINCOA 16810-2021
Location
Subject Site
N
Photos
Location
Subject Site
Enclosed Frontyard
N
Staff Recommendation
• Uphold Staff’s denial of MINCOA 16810-2021 to deny the request to install a perimeter fence around the front yard of the property located at 332 Chester Place.
332 Chester Place
Appeal of MINCOA 16810-2021
Applicant: Kristy Therrien
Continued from HPC Meeting of November 3, 2021
Historic Preservation Commission Meeting – December 1, 2021 Agenda Item H1
Timeline
• September 8, 2021 – Application for MINCOA 16810-2021 was submitted by applicant to the Planning Division
• October 13, 2021 – Staff issued a decision denying MINCOA 16810-0221 for the installation of the proposed fence.
• October 18, 2021 – the applicant submitted a letter of appeal to the Planning Division contesting staff’s denial of MINCOA 16810-2021
Photos
Location
Subject Site
N
Location
Subject Site
Enclosed Frontyard
N
HPC Meeting of November 3, 2021
• Commission voted on two competing motions; both failed • Item was continued to meeting of December 1, 2021
• Commission directed staff to confer with City Attorney to determine Commission’s ability to make conditions on appeals of Minor COA
Staff Recommendation
• Uphold Staff’s denial of MINCOA 16810-2021 to deny the request to install a perimeter fence around the front yard of the property located at 332 Chester Place.
Certificate of Appropriateness Findings
• The proposed change will not adversely affect any significant historical, cultural, architectural, or aesthetic features of the concerned property or the historic district in which it is located.
• The proposed change is compatible in architectural style with existing adjacent contributing structures in an historic district. • The proposed change is consistent with the architectural style of the building as specific in subsection 5 herein, Design Review. • The scale, massing, proportions, materials, textures, fenestration, decorative features, and details proposed are consistent with the period and/or compatible with adjacent structures.
Additional public correspondence from Gary
Aguirre, direct neighbor of the applicant, received
by Staff after the publication of the December 1,
2021 Historic Preservation Commission agenda.
From: Gary Aguirre
To: Fortune, Alan
Subject: Fw: Trespass Laws and Court Interpretations.
Date: Wednesday, December 1, 2021 6:18:41 PM
Attachments: image001.png
CAUTION: This email originated from outside your organization. Exercise caution when opening attachments or on clicking links from unknown senders. ----- Forwarded Message -----
From: Lewis, Chris <[email protected]>
To: [email protected] <[email protected]>
Sent: Wednesday, December 1, 2021, 11:57:01 AM PST
Subject: Trespass Laws and Court Interpretations.
Gary,
This turned out to be a daunting project! I found some simplified case law summaries for trespassing laws. Most notably is some clarity to the belief that all trespass violations are arrestable. Those that are must still pass the scrutiny of remaining in custody (which currently they do not) and then a third level of scrutiny to be filed by a detective with the District Attorney’s Office and for them to take the case to trial. I will let you explore the D.A.’s current position on trespassing arrests since I would unavoidably tread into political opinions which is not permitted by an on-duty peace officer.
At this point, the only real recourse I think citizens have to resolve repeated trespassing issues is what we call CPTED – Crime Prevention Through Environmental Design. In essence, making the physical location non-conducive to crime. Deterrence.
Even a small waist high fence, minor lighting modifications, and such can have an impact by establishing clear ownership & dominion over a property and deterring a trespasser to more accessible locations. Most importantly, as I have highlighted before, the courts simply respect that fenced lands enjoy a higher expectation of protection than open lands.
Pomona P.D. uses a “Trespass Authorization Letter” for vacant properties and commercial areas but it has limited use for a residence with a front yard. As an example transients setting up camps on a closed property can be arrested if the owner has completed a Trespass Authorization form. A person simply wandering around the front yard of a residence (particularly if they loiter for an hour and flee the scene before police arrive) would not be subject to any consequence for their actions.
For example, a group of teenagers sitting on the large greenspace of a corporate building would not be subject to arrest unless they refused to leave when asked. In the event the employees did not wish to confront these teenagers and instead called for a police response they could wait some time for such a low-grade and low-danger call to be dispatched, based on higher priority calls pending. When officers did finally arrive there is no legal consequence unless they refused to leave. If they return later there is no additional consequence, or increase in severity, as they were not arrested the first time. Those same teenagers loitering on the fenced property of that same corporate campus could be arrested immediately since they fenced property is clear indication that the property is not publicly accessible. Also, in the case of homeless, juveniles, and those who cannot be identified the consequences can be minimal or non-existent. In the case of homeless people without an ID and/or address these consequences are very difficult.
I can happily offer a class to your neighborhood about CPTED sometime and how other cities and jurisdictions have blended improvements with their buildings while maintaining the historical look and feel of an area. This is quite common, according to my training, on the East Coast where some buildings and areas are centuries old and precious parts of local and national history.
Please refer to the following information below for some legal understanding of trespassing laws in California as the courts treat them.
I highlighted a few key points.
Penal Code 602 PC prohibits trespassing, which is defined as entering or remaining on someone else’s property without permission or a right to do so.
This is generally treated as a misdemeanor punishable by up to 6 months in jail and a fine of $1000.00.
California trespass law sets out literally dozens of situations in which the offense of trespass may take place – some that are common, and some that are highly unusual. 1 2
Here are some examples of behavior that can lead to criminal trespass charges:
Because of a personal grudge against a restaurant’s owner, entering the restaurant and creating a disturbance that drives other patrons away; Entering another person’s unused garage without their consent, setting up a sleeping bag, and sleeping there for several nights; and Threatening to beat up an ex-girlfriend and then, a few weeks later, going to her office, apparently intending to behave violently toward her.
Penalties
In most cases, California trespass is a misdemeanor. This means it can lead to penalties of up to six (6) months in county jail and/or a fine of up to one thousand dollars ($1,000).
3 However, certain kinds of trespass in California law may lead only to infraction charges — with penalties consisting only of a small fine. As a general rule this form of trespassing is not subject to physical arrest.
And if you commit what is known as “aggravated trespass” – in which you threaten to injure someone physically and then enter their home or workplace without permission, as in the third example above — you may even face felony trespass charges.5 This
could mean a jail sentence of sixteen (16) months, or two (2) or three (3) years.6 Legal Defenses
If you are charged with trespass relevant legal defenses that may help you get your charges reduced or dismissed.
Some potentially helpful legal defenses include:
You had the right to be on the property;
You had consent to be on the property;
You didn’t “occupy” the property (for certain kinds of trespass) . . . or you didn’t actually obstruct or interfere with activity on the property (for other kinds); and The property was not fenced or signed (for trespass as an infraction).
In order to help you better understand the law, our California criminal defense attorneys will address the following:
1. What is the Legal Definition of Trespass in California?
2. What are the penalties for Criminal Trespass Convictions in California?
2.1. Penal Code 602 PC misdemeanor trespass
2.2. Penal Code 602.8 PC trespass as an infraction
2.3. Penal Code 601 PC “aggravated” (felony) trespass
2.4. Expungement of your criminal record after a trespass conviction
3. How do I fight a trespass charge in court?
4. What offenses are related to trespass?
4.1. Penal Code 459 PC burglary
4.2. Penal Code 594 PC vandalism
4.3. California theft crimes
4.4. California domestic violence offenses
4.5. Trespass as a plea bargain
1. What is the Legal Definition of Trespass in
California?
Penal Code 602 PC (together with related sections of the California Penal Code) describes over thirty activities that are considered criminal trespass.7 The most common acts that are prohibited by California trespassing laws include:
entering someone else’s property with the intent to damage that property,8 entering someone else’s property with the intent to interfere with or obstruct the business activities that are conducted there,
9 entering and “occupying” another person’s property without permission,10 and refusing to leave private property after you’ve been asked to do so.11 And other, more specific…and even bizarre…forms of trespass in California include things like:
taking soil, dirt, or stone off of someone else’s land without permission,12 taking oysters or other shellfish off of someone else’s land,13 and refusing screening at an airport or courthouse.14
Because of this, the legal definition of “trespass” in California is extremely complicated. But there are certain “elements of the crime” that make up the legal definition of most forms of California trespass. Trespass generally does not require breaking and entering.
These “elements” are facts that the prosecutor must prove for you to be guilty of the offense of California trespass. They are:
1. you willfully entered someone else’s property,
2. you had the specific intent to interfere with that person’s property rights, and
3. you actually did interfere with that person’s property rights (by damaging their property, interfering with their business, etc.).15
Let’s flesh out these terms to gain a better understanding of what they mean for the legal definition of trespass.
Willfully
The term “willfully” means deliberately or on purpose.16 Acting “willfully” doesn’t necessarily mean that you intended to break the law. It just means that you intended to perform the act that you performed. The immediate defense is one was unaware they were on protected lands.
Specific intent
“Specific intent” is a particular mental state. When you act with specific intent, it means not only that you intend your act . . . but also that you also specifically intend the consequences of your act.
17 Example: Noah is homeless man. After panhandling on the street, he takes his earnings to buy a sandwich at an expensive sandwich shop where office workers usually eat. Noah enters the restaurant and eats his sandwich there. His shabby clothes and body odor drive most of the other patrons away.
Noah willfully entered the restaurant, and his entry into the restaurant interfered with the business carried out there. But because he did not specifically intend to interfere with the business, he is not guilty of criminal trespass. 18 Actual damage to property rights or business
You are not guilty of two of the most common forms of trespass — damaging someone else’s property, or interfering with the business on their property — unless the prosecutor can prove that actual damage or interference occurred.19 In other words, if you just entered the property intending to cause damage — or to interfere with business operations — and you didn’t actually succeed, you are not criminally liable for trespass.
Example: Wally, an activist for farmworkers’ rights, goes to a county fair to hand out leaflets protesting the treatment of farmworkers. He stands in front of a display of a piece of farm equipment and attempts to give leaflets to visitors who want to view the equipment. Anyone who wants to avoid him and go straight to the equipment is physically able to do so.
Not long after he begins handing out leaflets, Wally is arrested. But he is found not guilty of trespass. Even though his intent may have been to disrupt the business activities (the equipment display) at the fair . . . he didn’t actually do so, since any patrons who wanted to ignore him could have.
20 BUT
Example: David sets up a table in a Disneyland parking lot to collect signatures for a petition. He does this without Disneyland’s permission. And the location of his table interferes with passengers getting off a tram taking them to the entrance, so that the tram has to be diverted to another entrance.
David is guilty of trespass because the tram was not able to operate normally thanks to his activities.
21 “Occupying” property
One commonly-prosecuted form of California trespass is the act of “occupying” someone else’s property without their consent.22
In this context — the legal definition of trespass by occupying property — the word “occupy” means to remain in a place continuously for a significant amount of time. 23 Example: Four friends enter a very large privately-owned ranch, without the owner’s permission, and camp there overnight. They are not guilty of trespass by occupying the property because they were only there for one night.
BUT
Example: The same four friends enter a very large privately-owned ranch and build a small cabin there. They set up a temporary home in the cabin and remain there for over two months. In this case, they may be guilty of trespass by occupying the property…because they have been staying there continuously for a long time.
Los Angeles prosecutions
The L.A. County D.A.’s office will generally not prosecute misdemeanor trespass cases unless the suspect has been a repeat offender in the prior 24 months, poses an imminent safety risk, or shows no signs of substance abuse disorder, mental illness, or homelessness.
24 2. What are the penalties for Criminal Trespass
Convictions in California?
California trespassing charges are unique in that they can be filed as infractions,
misdemeanors, OR
in very limited circumstances, felonies.25
2.1. Penal Code 602 PC misdemeanor trespass
The vast majority of trespass cases are charged as misdemeanors.26 Potential penalties can include:
Misdemeanor (summary) probation,
Up to six (6) months in county jail, and/or
A fine of up to one thousand dollars ($1,000).27
However, certain forms of misdemeanor trespass (for example, refusing to leave a battered women’s shelter after being asked to do so by a manager) carry a potential county jail sentence of up to one (1) year.28
2.2. Penal Code 602.8 PC trespass as an infraction
One very simple — and common — form of California trespass is often charged as an infraction.
Specifically, if
1. you willfully enter someone else’s land without permission, and
2. that land is enclosed by a fence OR has “no trespassing” signs posted at intervals of no less than three (3) to a mile,
you would be charged initially with an infraction, under Penal Code 602.8 PC.29 The penalties would be:
A seventy-five dollar ($75) fine for a first offense, and A two hundred fifty dollar ($250) fine for a second offense on the same land.30 However, for a third offense on the same land, you will be charged with misdemeanor trespass.
Chris Lewis
CORPORAL
Community Programs Unit
909-802-7752