CITY OF ALISO VIEJO ADJOURNED REGULAR MEETING OCTOBER 17, 2007, 5:00 P.M. TechSpace, 65 Enterprise, First Floor Aliso Viejo, California CALL TO ORDER: Mayor Cave called the Adjourned Regular Meeting of the City Council of the City of Aliso Viejo to order at 5:00 p.m. The meeting was held at TechSpace due to the remodeling of City Hall and Council Chambers. ROLL CALL: The Mayor requested the Interim City Clerk to call the roll. PRESENT: COUNCIL MEMBERS: CARMEN CAVE WILLIAM PHILLIPS GREG FICKE PHILLIP B. TSUNODA ABSENT: COUNCIL MEMBERS: DONALD A. GARCIA (ill; notified City in advance) ALSO PRESENT: MARK A. PULONE, CITY MANAGER SCOTT SMITH, CITY ATTORNEY JAMIE L. RAYMOND, ASSISTANT CITY ATTORNEY LINDA D. RUTH, INTERIM CITY CLERK GENIA GARCIA, DIRECTOR OF PLANNING SERVICES WAYNE LOFTUS, PLANNING CONSULTANT PLANNING APPROVAL AND ZONING ORDINANCE WORKSHOP: To consider alternatives for processing and decision making for planning/development projects; Provide direction to staff relating to: a) Delegation of planning authority to staff, an appointed body, a planning commission, and/or retention of planning authority by the City Council, to be included in the draft Zoning Ordinance. b) Other issues of concern. City Manager Mark Pulone recalled that as a result of a workshop held in the Spring, Staff was directed to report back on certain issues raised, namely the impact on the City of the Master Development Agreement due to expire in February 2008, completion of the proposed City Zoning Code next year for which funds have been budgeted, and review of the planning approval process. City Attorney Scott Smith, using a Power Point presentation (on file in the City Clerk s Office), gave an overview of where the City was in the process of adopting a Zoning Code ordinance. He noted that a vast amount of the planning and zoning work was completed with the adoption of the General Plan and that there were significant segments of the City which have already been zoned and vested with that zoning. Mr. Smith continued with the presentation giving the statutory basis for zoning and some
CITY OF ALISO VIEJO 2 specific provisions of zoning required to be included in the Zoning Code. He advised that as a result of reviewing the Sign ordinance, many ambiguities surfaced and it was determined by Planning Staff that a concurrent rewrite of the Sign ordinance was necessary. Assistant City Attorney Jamie Raymond reviewed what was in effect currently. Ms. Raymond stated that upon incorporation, the City adopted the Orange County Code, including all ordinances and resolutions. She explained that the Orange County Zoning Code and the Planned Community Development Plan and Supplemental Text for Aliso Viejo were also included. Ms. Raymond advised that subsequently the City has adopted a number of ordinances which impact Zoning, the DRC ordinance being the most prominent. Ms. Raymond stated that another component of zoning law relevant to Aliso Viejo is the Development Agreement Statute which allows a private owner to contract with a public agency for entitlements and vest the right to develop their land consistent with the zoning and other standards in effect at the time of the Development Agreement. Ms. Raymond recalled that the City had used this mechanism for four of the Community Benefit Overlay (CBO s) areas that are identified in the General Plan. She pointed out that a Development Agreement does limit the City s ability to impose different zoning regulations on land subject to the Agreement and that while the City could adopt a different zoning standard for that property, they could not enforce it until the Development Agreement expired. Ms. Raymond pointed out that the Development Agreement only applies to first generation development, so the City is free to rezone and redevelop those properties in a different manner than what was specified under the Master Development Agreement. Ms. Raymond recalled that the entire City of Aliso Viejo is a part of the Master Development Agreement due to expire in February 2008. After that date, the City would be free to rezone property and establish other development standards. In response to Mayor Pro Tem Phillips, Ms. Raymond stated that technically the City could adopt different regulations on the United States Postal Service (USPS) property, but not enforce them. She also pointed out that some of the parcels of land in the City are subject to private land use restrictions to which the City is not a part. City Attorney Scott Smith interjected that any property that is undeveloped immediately becomes subject to current zoning regulations on the expiration date of the Master Development Agreement. Relating to the USPS property, Mr. Smith advised they have Federal preemptions from the City s Zoning regulations. Assistant City Attorney Jamie Raymond advised that another of level of Zoning that the City has implemented for the four CBO areas are Specific Plans which are land use regulations that are intended to implement the General Plan and often used, as in the case of the CBO s, in lieu of traditional Zoning regulations. She pointed out that Specific Plans have served as a model for some of the regulations that Staff is working on for the new Zoning Code. Ms. Raymond recalled the City has four Specific Plan
CITY OF ALISO VIEJO 3 Development Agreements, Vantis, Glenwood, Ventana Ridge, and the Commons. City Attorney Scott Smith advised that the first part of any zoning ordinance is about the planning structure, a description of potential entitlements that can issue in a city, and a description of which bodies, elected or appointed, have authority to issue those entitlements, or commonly referred to as the procedural part of a zoning ordinance. Mr. Smith noted the original structure of the Zoning ordinance was based upon the assumption that Aliso Viejo was a Master Planned Community, that there would not be a lot of entitlements outside of the original Master Plan, and that, therefore, very little decision making would involve broad discretionary land use planning, and that what remained would be evaluated by experts in the form of a Planning Director and Development Review Committee (DRC). Mr. Smith stated currently the Planning Director has broad authority to review applications and issue permits and the DRC has a lot of authority too, since four of the seven members are department heads (Planning, Engineering/Public Works, Public Safety and Fire). He pointed out there is a lot of discretion vested in Staff and nonelected persons, with little authority vested in the City Council, but there were opportunities for appeals up the change of command, for the Director at his/her discretion to bring certain decisions to higher levels, and for the City Council to request review of decisions of the lower bodies. In practice though, Mr. Smith stated that based upon a comparison of other cities where he and Ms. Raymond work, the application of the Zoning ordinance became more top heavy than originally contemplated, meaning that over the past six years the City Council had done more planning and decision making regarding entitlements and details of entitlements than contemplated by the original Zoning ordinance. Mr. Smith stated he believed the practice began largely due to the discretion needed to be exercised especially with the CBO sites, as opposed to what was originally envisioned. Council Member Tsunoda requested clarification on the decision making authority of the Planning Director, if a decision were to be appealed did the application automatically go to the DRC or did those decisions get appealed to the City Council. City Attorney Scott Smith explained that the current ordinance does not contemplate that level can be skipped; in other words, appeals of the Planning Director s decisions would go to the DRC and if there was dissatisfaction at that level, then the DRC decisions could be appealed to the City Council. Mr. Smith stated, in practice, the mid level has been skipped occasionally almost sometimes as a mutual convenience, for example, if the landowner knows the project will eventually end up at the City Council level, then why not go directly to that level. Mr. Smith stated that procedure needs to be looked at so that the process is tracked to the letter of the law. Regarding the composition of the DRC, Council Member Tsunoda noted that the Staff Report referenced adoption of an ordinance changing the composition and asked what the status of such an ordinance was.
CITY OF ALISO VIEJO 4 City Attorney Scott Smith advised that the City Council introduced an ordinance earlier in the year that removes the four Staff members from the DRC. He explained that the City Council approved the change in concept as part of the housekeeping process relating to codification of the City s ordinances and would be submitted soon for final adoption or if the Council desires, for amendment prior to adoption. Mayor Cave stated that the DRC was not originally intended to be a decision making body, but advisory in nature only. She stated the intent was that when an application was received, the DRC would sit down with Staff, including Police and Fire Services, and determine the issues at the beginning of the process so that an applicant could design their project with DRC/Staff input and following design, the project would be submitted for public input. Mayor Cave expressed concern that the process had evolved into Staff having the authority to make binding decisions. She encouraged review of the entire process. City Attorney Scott Smith related his theory on how the process evolved to what it is today. He believed it had to do with the criteria in Aliso Viejo for approval of Site Development Permits because the DRC and the Director have original authority to issue Site Development Permits which include mid-rise buildings and huge projects. Mr. Smith expressed concern about the current wording of the ordinance and advised that he would be reviewing it closely. Genia Garcia, Director of Planning Services, advised that Staff has read the ordinance many times trying to determine its intent. She advised that the process is subject to the Brown Act which has certain legal requirements and when a legal notice was published for a public hearing on an application, the public attends expecting to learn about the project and not help design the project. Ms. Garcia explained that they noticed public hearings and posted the agenda, in compliance with the law, given the language of the ordinance. City Attorney Scott Smith continued with the Decision Making Models slide of the Power Point Presentation, noting there were several decision making models for making land use decisions, a director with broad approval authority, a professional appointed body such as a Board of Zoning Administration, a planning commission with a broader spectrum of public views, and a city council acting as the planning agency or planning commission. He noted the most common model was the city council, planning commission and director model. Council Member Tsunoda asked if a planning commission could be advisory in nature only or does the State Statute impose certain powers. City Attorney Scott Smith advised the Statute lists certain authorities that have to be made by a planning agency, but the City Council determines who that planning agency will be. Mr. Smith explained a city may have a planning commission but not make them the planning agency for those decisions called out by Statute.
CITY OF ALISO VIEJO 5 City Attorney Scott Smith referred to the next slide depicting the statutory planning agency roles which included advice and annual report on General Plan, General Plan Consistency findings, zoning amendments or changes (advise), specific plans (advise), annual review of the capital improvement plan, development agreements (advise), variances, and usually subdivision maps. Mr. Smith then referred to the current decision structure for planning and development projects among the three decision making bodies. He pointed out those in red were delegated to the planning agency by the Government Code. In conclusion, Mr. Smith requested that the City Council give direction on the structure that best suits the City and its needs, whether a planning commission would be advisable and what level of approvals and entitlements ought to be allocated to the two or three tiers of the decision making structure. Once the City Council decides on the structure, then the Planning Director and Planning Consultant Wayne Loftus would review the different types of permits and entitlements to be allocated to each tier and make a recommendation to the City Council shortly after the first of the year in the form of a final ordinance. Genia Garcia, Director of Planning Services, advised that monies have been budgeted for preparation of a new Zoning Code and that the consultant has the Code two-thirds completed. Ms. Garcia stated that Staff is in the process of completing the last segment by incorporating the new ordinances adopted by the City Council, like the condominium conversion ordinance, massage ordinance, telecommunications ordinance, and sign ordinance. She stated that once the City Council determines the planning structure, then the administration section of the Zoning Code can be completed. Mayor Cave stated that when the City first incorporated, the Planned Community text and the Master Development Agreement addressed the decisions that would have normally been made by a planning commission and ministerial decisions were made by the Development Review Committee. The process worked well until the Community Benefit Overlay was established and the City was not prepared for what transpired. Now that the Master Development Agreement was about to expire, it was the appropriate time for the City Council to determine what type of planning structure would best work for the City. Mayor Cave stated she was comfortable with establishing a planning commission, but who would be the planning commission, the City Council or a separate body, still needed to be determined. In response to Mayor Cave, City Attorney Scott Smith stated that almost always an ordinance establishing a planning commission provides for appeals from the commission to the City Council, but that it is a policy decision of the City Council as to how much authority the City Council wishes to delegate within the constraints of the law. In response to Council Member Tsunoda, Assistant City Attorney Jamie Raymond advised that the planning commission could be advisory in nature, except for the statutorily required decisions, and that the City Council could remain as the planning
CITY OF ALISO VIEJO 6 agency. She advised it was their intent to clearly specify the role of the planning commission in the enabling ordinance after the City Council determines the process. Mayor Cave stated she had a couple of questions: 1) What is the City expecting planning-wise in the future, and, therefore, what kinds of zoning applications would a planning commission that has more authority than an advisory role, be expected to review. She requested that a matrix showing what decisions, as outlined in the Current Decision Structure document, would a planning commission in an advisory role and then a planning commission as the planning agency with full statutory authority, look like. 2) Could the City Council use a two-step approach by establishing a planning commission in an advisory role effective February 9, 2008, see how it functions, and then if it is going well and the City Council cannot continue to act as the planning agency, divest itself of some of the duties and responsibilities and delegate them to the planning commission. She stated she assumed it could be done by amending the ordinance that first established the planning commission in the advisory role. Council Member Ficke suggested that Staff look at other planning commissions on threshold items, such as limits on the size of projects they approve, whereby they do not change the overall community but only have certain authority to modify it. He further explained that when projects exceed a certain threshold, then the City Council would consider the project and its impacts on a broader scale. Planning Consultant Wayne Loftus advised that the City currently uses such an approach, noting there are certain levels of decision making authority. Council Member Ficke noted that currently variances are handled at the Planning level, but suggested that they be moved into a broader review arena. Mayor Pro Tem Phillips asked what process would be used to obtain input from Planning, Public Works, Fire and Police on applications. Genia Garcia, Director of Planning Services, responded that currently when an application is deemed complete, the applicant submits a final set of plans which are routed to every department for review and comment and that before it goes to public hearing, the Water District and Fire Authority also review them. She stated that before a project appears at the City Council level, every agency who should have, has already reviewed it. The Planning Department prepares the Conditions of Approval resulting from the review and input of experts in their respective disciplines. Mayor Pro Tem Phillips stated he wanted to insure that a mechanism that is clear and straightforward is in place so that an applicant is not put into an eternal cycle and goes into the public arena. Mayor Pro Tem Phillips stated that philosophically the value in having a planning commission was to have just another set of eyes looking at projects, but that the downside was, it slowed down the process. He stated that he is sensitive to applicants submitting projects and getting weighed down in the process because of a complicated structure and it taking an inordinate amount of time to get approval. Mayor
CITY OF ALISO VIEJO 7 Pro Tem Phillips stated he favored having another set of eyes in the form of a planning commission as long projects would not be get held up. Mayor Cave asked if the number of continuances an advisory board could have could be limited, and City Attorney Smith answered in the affirmative. She also asked if there was a pre-submittal packet containing standard conditions that was given to the applicant, to which Ms. Garcia answered in the affirmative. Mayor Cave suggested that a pre-submittal meeting with the applicant on less complicated projects would also be beneficial. Mayor Cave summarized the direction the City Council was giving to Staff, that they would like Staff to prepare an option for a planning commission with full authority as typically designed in other cities, as well as one with an advisory role. City Attorney Scott Smith stated that he understood the City Council would like to see a document showing a planning commission that was advisory with less decision making authority. He advised it would basically show final authority bifurcated between the City Council and the Planning Director. The City Council would then review the list and allocate selected authority, with an appeal process to the City Council, to the planning commission, as it deemed appropriate. In response to Mayor Pro Tem Phillips, Mr. Smith stated the City Council needs to look at what s on the horizon, is the workload going to be too huge for the City Council to manage and a three-layered structure would be needed, with levels of authority allocated by the City Council through an ordinance. Council discussion ensued and Mayor Cave clarified that Staff will prepare a matrix showing a planning commission in an advisory role and one in the typical planning commission role, for further City Council review. Council concurred. City Attorney Scott Smith suggested including the minor and major application categories on the matrix as well. Relating to the Sign Ordinance mentioned earlier in the meeting, Mayor Cave asked if the survey of non-conforming signs had been completed and if with the new Zoning Code being adopted, would the time period be extended. Planning Consultant Wayne Loftus advised that currently they are weeding out inconsistencies in the language of the Sign Ordinance and if limited to just that, it would not affect pre-existing nonconforming signs. Mayor Cave referred to a slide indicating that there were some other areas that needed to be tightened up in the Planned Community and Supplemental Text and asked what they were. Planning Consultant Wayne Loftus stated that Staff finds itself in a position of having to choose between regulating documents that are in conflict and fortunately because CBO s on the newly developing sites are in place, they have been able to determine what they need want to do.
CITY OF ALISO VIEJO 8 In response to Council Member Tsunoda, Planning Director Genia Garcia advised that Staff would have the requested matrix back to the City Council in about a month. Council Member Tsunoda suggested that in addition to submission of the matrix, that Staff also submit a prototypical composition/appointment process for a planning commission. He suggested a seven-member planning commission, five of which would be appointed by individual Council Members and the two remaining members be professional individuals which would be defined by Staff as having architectural or technical experience, and be approved by a majority of the City Council. He emphasized this was only a suggestion to be considered by the City Council and Staff when Staff returned with the matter in a month. Mayor Cave asked if there was any further discussion; there was no response. ADJOURNMENT: Mayor Cave declared the meeting adjourned at 6:38 p.m., and announced the Regular Meeting of the City Council would commence at 7:00 p.m. Respectfully submitted, Approved by LINDA D. RUTH, CMC, RET. INTERIM CITY CLERK CARMEN CAVE MAYOR