1505 Tiburon Boulevard, Tiburon, California

Chair Stein called the meeting to order at 7:33 p.m.

A.    ROLL CALL

Commissioners Present: Chair Stein, Commissioners Berger, Fredericks, Smith & Snow

Commissioners Absent: None

Staff Present: Planning Director Anderson & Associate Planner Theriault

Commissioner Smith expressed deep concern about the recent erection of solar panels in highly visible locations. He said it was a tremendous mistake to have the hillsides that the community treasures so much be covered with these panels. He did not understand how the panels on Straits View Drive and Via Paraiso East could have been considered non-controversial and suggested that all such panels require Design Review Board approval.

Planning Director Anderson stated that the Straits View Drive panels had been approved through the Staff-level design review process following the required notification procedures. He stated that the Via Paraiso East panels had not received any Town permits and were the subject of a code enforcement action. He noted that the Staff had already modified its internal policy to require that all solar panels that are not the traditional flush-mounted rooftop variety be forwarded to the Design Review Board for a decision.

Planning Director Anderson noted that the Martha Company draft EIR had been released and that a special Planning Commission meeting was scheduled for November 8, 2001 to take public testimony of the draft EIR. A 60-day public review period was established, and the hearing would be held the day before the comment period closed.

Anderson also stated that this would be the final Commission meeting for Associate Planner Theriault, who had accepted a position with the City of San Rafael. The Commission wished her the best of luck in her new position.

Anderson reminded the Commission that the meeting of September 26, 2001 had been cancelled and that the next Commission meeting would be on October 10, 2001. He anticipated that two recently-completed traffic studies would be discussed at that meeting.

Corrections: Page 2, next to last paragraph, amended to read "Commissioner Fredericks was concerned that the existing study, which was next to a full bath, could easily be converted into a bedroom when the garage was converted into a study. She felt there was a potential increase in intensity of use that should be considered." Page 2, last paragraph, amended to read "Commissioner Berger supported the proposal because he found the conversion of a one-car garage to living space minimal given that the other two garage spaces and additional apron spaces meet the Town’s parking requirements.

3. PROPOSED AMENDMENT TO HEXAN PRECISE PLAN (PD#1) TO ESTABLISH A FENCING ONLY BUILDING ENVELOPE FOR LOT 4; 18 CIBRIAN DRIVE; RANDALL AND SANDRA HUYSER, OWNERS AND APPLICANTS; ASSESSOR PARCEL NO. 38-011-42

Associate Planner Theriault presented the staff report. The applicants are proposing a "fencing only" envelope expansion for the property that would enable them to construct a pool enclosure fence in the rear yard area outside of the existing secondary building envelope. The proposed fencing envelope would be set back from the street a minimum of 85 feet, would run along the west property line for 145 feet, continue eastward in a curve through the backyard, stop 10 feet short of the east property line then switch back toward the west ending at the easternmost tip of the existing residence.

Theriault stated that most of the fence would be well set back from property lines and would serve an appropriate purpose by providing pool enclosure and deer fencing without blocking neighbors’ views to the north or substantially reducing the sense of openness designed into the subdivision’s envelope scheme. The portion of the proposed fence that would run along the western property line is contrary to the original design intentions for the subdivision, however. Condition 2j of the approved Hexan Master Plan specifically prohibits property line fencing or even plantings on property lines that would have the appearance of fence-like hedges. The Master Plan further discourages fences of rectilinear design that would form obvious structural demarcations that would serve to diminish the subdivision’s visually open areas that are created, in part, by the established building envelopes.

Theriault recommended that the proposed fence line be moved back from the west property line 10 feet to align with the existing secondary envelope, and that it be modified to have a more curvilinear appearance at the lower edge on the west to match the curvilinear form of the proposed lower eastern edge. She recommended approval of the application with those changes.

Randall Huyser, applicant, stated that the existing temporary fence encloses less area than the proposed fence. The temporary fence is merely to keep the work area enclosed during construction for safety purposes. Mr. Huyser indicated that the additional setback being recommended by Staff would actually create more visual impact due to its higher position relative to the topography.

Chairman Stein asked how much lot area would be fenced in by the current proposal. After some discussion, it was determined that it would be approximately 10,000 square feet more than the existing fence on a lot of nearly 84,000 square feet.

Commissioner Smith questioned the applicant regarding the type of wire mesh fence proposed. Mr. Huyser explained that the mesh was fairly standard but needed special characteristics as prescribed by the Building Official because it serves as a pool fence. Commissioner Berger explained that the Uniform Building Code requires such fences to be "not climbable" and to have a fairly tight mesh to prohibit toe holds.

Chairman Stein asked if the fence would need design review approval and was assured that it would.

Commissioner Berger asked the rationale behind the 10-foot setback from the west property line being recommended by Town Staff. Anderson responded that the Master Plan for the Hexan Subdivision prohibits property line fencing, or even property line plantings that resemble fencing, in order to preserve the "open" appearance throughout the Subdivision. Anderson noted that this was a fairly common approach used by the Town in the 1980’s, but that it had not proven entirely successful and severely limited what sort of plantings people could place in their yards because of the deer problem.

Commissioner Fredericks noted that the property line fencing prohibition also created wildlife corridors through the area. She thought a minimum 5-foot setback would allow room for a wildlife corridor. Commissioner Berger stated that the area was quite open in nature without the property line fencing prohibition.

Chairman Stein expressed concern about the large size of the fenced area being requested, noting that a much smaller fence, such as the temporary fence now in place, could enclose the pool area. Theriault responded that the proposed fence was intended by the applicant to serve a dual purpose of pool fence and deer fence. The applicants desired some portion of their lot to be fenced and planted as a yard that would be protected from foraging deer. Anderson added that Staff did not analyze the temporary fence as it is intended only for construction safety and not for permanent placement. Anderson also noted that unlike certain other subdivisions, the areas outside the building envelopes in the Hexan Subdivision are not designated open space in any formal or informal way.

Commissioner Snow asked if that meant that the applicant could install landscape or hardscape in the area between the fence and the residence. Anderson responded that they area may be planted, landscaped, hardscaped, or otherwise used as a yard, except that no structures are permitted.

Commissioner Berger asked if other property owners have installed fencing in this Subdivision. Anderson responded that other fences have been permitted by the Town following this same precise plan amendment process.

 No one else from the public desired to speak on this item.

Commissioner Fredericks said that she supports the Staff recommendation on this application.

Commissioner Berger indicated that the problem with the Staff-recommended fence location is that the grade is considerably higher ten feet back from the property line due to recent construction of the pool. He supports the curvilinear aspect but would prefer some portion of the fence on the property line to reduce its visual impact.

Mr. Huyser distributed a photograph showing the area in question and demonstrating the height differential.

Commissioner Snow suggested that if a wildlife corridor is desired, perhaps a five foot setback would be appropriate.

At the suggestion of Chairman Stein, Commissioner Berger described his proposed fence alignment on a site plan for the benefit of the Commission.

M/S Smith/Berger (5-0) to adopt the Resolution with an exhibit showing the amended fence alignment as put forth by Commission Berger. 

4.    AMENDMENT TO THE CONDITIONS OF APPROVAL OF VISTA GOLDEN GATE ESTATES TENTATIVE SUBDIVISION MAP; 200 & 220 GILMARTIN DRIVE; ALEXANDER AND YAMI ANOLIK, OWNERS AND APPLICANTS; ASSESSOR PARCEL NO. 39-171-05

Planning Director Anderson presented the staff report, noting that earlier this year, the Planning Commission approved a Tentative Subdivision Map for the creation of two lots on 4 acres of land at the end of Gilmartin Drive. The applicant is now requesting that two of the conditions of approval of this tentative map approval be amended to defer the payment of certain fees from "prior to the parcel map" to the "issuance of a grading permit" to the "grading permit" phase of the project.

He stated that two separate fees were involved: park and recreation in-lieu fees and serpentine grassland mitigation in-lieu fees.

The property owners have stated that they do not intend to develop the subject property themselves, but rather intend to sell the land to an independent developer. They feel that it would be an unfair hardship to require the payment, in advance, of approximately $100,000-$150,000 in fees that could be paid by the actual developer of the property immediately prior to actual physical disturbance of the site.

Mr. Anderson saw two minor downsides to approving the request. First, if the fees were collected now, the Town would begin to earn interest on the monies that much sooner. Second, there was a slim possibility that a bureaucratic error could cause the payments to be forgotten by the time of grading permit issuance. He did not consider either of these downsides to be dramatic or significant.

Staff recommended that the Planning Commission hold a public hearing and then consider the request for deferred payment of the fees. If the Commission determines that deferral is appropriate, it should adopt the draft resolution.

Commissioner Snow asked if similar requests have been made in the recent past. Anderson responded that the Town has been using the current formula for park and recreation in lieu fees only for about seven years, and that few subdivisions had been processed during that time. He was not aware of any similar requests in those years. Anderson stated that with respect to the serpentine grassland mitigation fee, this was a "first" and had never been dealt with by the Town previously.

Commissioner Smith stated that the interest earned actually belonged to the developer and that it would be appropriate to make a change in the condition at this time. He saw little chance for the fees being "forgotten" provided that a proper memo was placed in the file.

The hearing was opened to public comment.

Alexander Anolik, owner and applicant, stated that the mitigation monitoring program requires payment of the serpentine bunchgrass fees and he saw no possibility for a bureaucratic slip-up that could cause the fees never to be paid. He also noted that there are statutes that require payment of fees at the time subdivision improvements are to be made. Since he was going to sell the property and not make the improvements, he thought it appropriate that the actual developer of the project pay the fees. He further asserted that due to the recession, payment of a six-figure fee at this time would be prohibitive for him.

Chairman Stein asked if the tentative map approval had improved the salability or value of the property. Mr. Anolik responded that recent economic shifts had reduced the value of the property overall; that it would have been worth more if more lots had been approved. He conceded that the subdivision approval had increased the value from when the property was raw land with no approvals.

Commissioner Berger agreed with Commission Smith’s reasoning on the fees. He said it is best to pay for the remedy at the time the remedy is warranted, not possibly years in advance.

Commissioner Fredericks agreed. She stated that the "hardship" issue is irrelevant, but that the proposal appeared reasonable and appropriate as it better matched the timing of the impact for which the fees would be collected.

Commissioner Snow said he tended to agree with the reasoning of the other Commissioners.

Commissioner Smith explained various procedures under the Subdivision Map Act where an applicant can, in advance of approval, arrange to pay fees later, but stated that neither situation applied in this case.

Chairman Stein said he had a different reaction to this application. He believed that the Town had conferred a benefit on the property by approving the tentative map, and that it was not unreasonable to expect the fees to be paid at the time specified in the tentative map approval. The benefits of the approval last because the permit does not expire or lapse.

Commissioner Berger thought that this situation was more akin to building permit fees that are collected when the permit to perform physical work is actually issued.

There was some discussion amongst Commissioners regarding the timing of the fees and the expiration of the tentative map. Anderson clarified that a tentative map approval is good for three years, but will expire if a parcel map is not recorded. Chairman Stein indicated that this was an important distinction for him.

M/S Berger/Snow (5-0) to adopt the resolution approving the amendments to conditions as presented.

ADJOURNMENT

Having no further business, the Commission adjourned at 9:07 p.m.

______________________________

STEVE STEIN, CHAIRMAN

Tiburon Planning Commission

ATTEST:

_________________________________________

SCOTT ANDERSON, SECRETARY