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PC - Minutes - 10-07-13Minutes of the PLANNING COMMISSION MEETING October 7, 2013 The regular meeting of the Planning Commission was called to order at 7:00 p.m. by Vice -Chair Eng in the Council Chambers, 8838 E. Valley Boulevard. PLEDGE OF ALLEGIANCE - Commissioner Tang INVOCATION - Commissioner Dinh ROLL CALL - Commissioners Dinh, Lopez, Tang, and Vice -Chair Eng ABSENT - Chair Herrera ROLL CALL OF OFFICERS PRESENT: City Attorney Murphy, Community Development Director Ramirez, Associate Planner Trinh, Planning Technician Casillas, and Commission Secretary Lockwood. 1. EXPLANATION OF HEARING PROCEDURES AND APPEAL RIGHTS Greg Murphy, City Attorney, presented the procedure and appeal rights of the meeting. 2. PUBLIC COMMENTS FROM THE AUDIENCE None 3. PUBLIC HEARINGS A. CONDITIONAL USE PERMIT 11 -15 - Chris Lee has submitted a Conditional Use Permit application requesting approval for a new On -Sale Beer and Wine (Type 41) ABC license in conjunction with a bona fide public eating establishment located at 8877 Valley Boulevard, in the CBD - MUDO /DO (Central Business District with a Mixed Use Development and Design Overlay) zone. PC RESOLUTION 13.14 - A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF ROSEMEAD, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, APPROVING CONDITIONAL USE PERMIT 11.15 FOR A NEW ON -SALE BEER AND WINE (TYPE 41) ABC LICENSE IN CONJUNCTION WITH A BONA FIDE PUBLIC EATING ESTABLISHMENT, LOCATED AT 8877 VALLEY BOULEVARD, IN THE CBD- MUDO -D (CENTRAL BUSINESS DISTRICT WITH A MIXED USE DEVELOPMENT AND A DESIGN OVERLAY) ZONE. STAFF RECOMMENDATION • Based on the analysis and findings contained in this report, it is recommended that the Planning Commission ADOPT Resolution No. 13 -14 with findings, and APPROVE Conditional Use Permit 11 -15 subject to the twenty-eight (28) conditions. Greg Murphy, City Attorney, stated that under California Law and having a business within the prescribed radius area of the business tonight., Commissioner Dinh has requested to recuse herself due to a conflict of interest. Planning Technician Casillas presented staff report. Vice -Chair Eng asked the Planning Commission if there are any questions or comments for staff. Commissioner Tang asked how many beer and wine licenses are currently in that district. Planning Technician Casillas replied six (6). Commissioner Tang asked if this one will make seven (7) and how many beer and wine licenses are currently just in the plaza, Planning Technician Casillas replied yes, this will make seven (7). She explained in the Plaza there is only one (1) proposal, She added that there are three (3) units, the bank, the restaurant, and a vacant unit. Community Development Director Ramirez asked Commissioner Tang if he wants just this one parcel or would he like to include the adjacent parcel that includes the mini -mall behind it. Commissioner Tang replied the mini -mall behind this parcel. Planning Technician Casillas replied there is one (1) more off -sale license for the shopping center. Commissioner Tang asked if that makes it two (2) for that center. Planning Technician Casillas replied yes. Commissioner Tang asked what a Class 9 categorical exemption from the environmental CEQA is. Planning Technician Casillas explained under CEQA there are different exemptions that exempt a project from further CEQA review. She added that the review may be a negative declaration or EIR's; in this case it's not an impact that requires further review under CEQA. Commissioner Tang asked if the Chief of Police gave specific reasons for his recommendations, issues, or concerns. Planning Technician Casillas replied that his concern was that this is within a high crime neighborhood and recommended that the hours be limited till 1:30 a.m. She added staff has placed enough conditions of approval on the application that the Chief of Police feels confident there will be no problems. Commissioner Lopez asked what type of crimes in the vicinity the Chief of Police is concerned with. Planning Technician Casillas replied vehicular burglaries. Vice -Chair Eng asked which establishments in this shopping center have ABC licenses. Planning Technician Casillas replied the supermarket and the "Thien An Bo 7 Mon" restaurant. Vice -Chair Eng asked if the "Sunday Cafe" restaurant had an ABC license. Planning Technician Casillas replied no. Associate Planner Tnnh explained that Sunday Cafe was approved for an ABC license but never initiated it. Vice -Chair Eng referred to the establishment that has an approved ABC license and asked what their operating hours are and when they are allowed to sell alcohol. Planning Technician Casillas replied the hours of operation are from 11:00 a.m, to 11:00 p.m. and they are allowed to sell alcohol during those hours. Vice -Chair Eng confirmed that the hours of operation are from 1100 a.m. to 11:00 p.m. and the hours allowed for selling alcohol are the same. Planning Technician Casillas replied yes. Vice -Chair Eng asked if there any proposed plans for out -door dining. Planning Technician Casillas replied no, but that question may be addressed to the applicant. Vice -Chair Eng referred to the recommendation of alcohol being sold only when the kitchen is open and asked staff what time will the kitchen be closed. Planning Technician Casillas explained that condition was added as a precaution, but it is recommended that they are allowed to be open from 7:00 a.m. to 1:30 a.m. Vice -Chair Eng asked when the kitchen will be closed and that it is a restaurant so won't the kitchen always be open. Planning Technician Casillas replied correct. Greg Murphy, City Attorney, explained that there are some restaurants with alcohol permits that have in the past, (none that he knows of in Rosemead), close their kitchens from 1:30 p.m. to 4:30 p.m, to send early shift cooks home and save the cost of running the kitchen for those three hours but keep their bar operations open. He stated this is becoming a standard condition to ensure that the alcohol sales remain insularity to the service of food and having the kitchen up and running is a good way to ensure that. He added that is why this condition is being put in and it is being put in by many of their clients for which his firm serves as City Attorney, as well as this City. Vice -Chair Eng referred to the staff report and read that the restaurant will provide seating for seventy-two (72) but the site plan indicates the occupancy load is one hundred forty -five (145) and asked which one is correct. Planning Technician Casillas explained that there is standing room in the restaurant and lobby, but the fixed tables and chairs areJimited to seventy -two (72) patrons. Vice -Chair Eng asked when ABC approved this license was it based on seating capacity or bodies. Planning Technician Casillas replied the Building and Fire Departments regulate the Occupancy Load. She explained you are looking at the total occupancy and they are coun ing the kitchen as well, unless they are breaking up space. She added you will have people standing in the lobby waiting to be served but this restaurant will serve a certain number of patrons based on the seating capacity. Commissioner Lopez asked if this restaurant will have a bar. Planning Technician Casillas replied no. Vice -Chair Eng opened the Public Hearing and invited the applicant to the podium. Chris Lee, applicant, thanked the Planning Commission for having him tonight. He stated that his family has operated another restaurant in the City of Bellflower for almost a decade, which has an ABC license and they have not had any issues arise from drunkenness or rowdy behavior. He stated they are careful not to serve alcohol to patrons that deemed to be intoxicated as they are concerned with this as well. He stated they are not intending to be a bar and want to serve alcohol to help compliment the food they are serving for the dining experience. Vice -Chair Eng asked if the restaurant is planning to have out -door dining. Chris Lee replied the way the space is designed there is that possibility and if they were to go in that direction they would come to the City to get that approved. He stated currently they do not have plans to do outdoor seating. Vice -Chair Eng referred to when alcohol will be served and when the kitchen is open and asked if the restaurant kitchen will always be open, or will there be different operating hours. Chris Lee replied yes, the kitchen will be open for all operating hours. He added that they are not in the business of opening a bar but would like to serve food that is good for the community. Vice -Chair Eng referred to limiting the operating hours to 130 a.m. due to crime activity in the neighborhood and asked Mr. Lee if he is comfortable with this limitation. Chris Lee replied yes. Commissioner Tang welcomed Mr. Lee to the City of Rosemead. He asked if Mr. Lee, his management team, and his staff have been trained in the proper protocol of carding patrons, not serving alcohol to overly intoxicated patrons, and all the other safety measures that need to be taken. Chris Lee replied that he has not personally been trained. He explained an on -site General Manager will be hired soon and will go through training if he has not been. Vice -Chair Eng asked if there was anyone else wishing to speak on this item. None Vice -Chair Eng closed the Public Heanng. She asked the Planning Commission if there were any further questions or comments Commissioner Tang asked staff if the State puts a cap or gives a maximum count on how many ABC licenses will be issued in a census tract within a high crime area. Planning Technician Casillas replied that ABC will not put a cap and will refer it to the local agency/government to make that decision. She explained as a Planning perspective when restaurants are clustered together you have an area where it is easier for Public Safety to go out and patrol, rather than having them detached in residential neighborhoods. Greg Murphy, City Attorney, referred to old town Pasadena and explained in 1970 and early 1980 they welcomed as many restaurants as many as could come in, they wanted them clustered. Then in the 1990's and 2000, they wanted to put a hard cap on the number of alcohol permits that the City would allow, but ABC did not have any cap at all. It was the City's decision that they wanted more of a mix, and the nightlife was up to the level that they were happy with, so as you are making your policy decisions in your City, the same kind of clustering idea is something to consider in your City, or you can consider spacing them out if that is you policy decision, He added this as a counter point to what naturally fills their minds of a lot of alcohol permits in one place, and that it can be an economic driver as well as a negative, depending on the way it is seen through. He pointed out that the Planning staff is good and he trusts them to see this through the right way. Commissioner Lopez asked how many ABC licenses have been issued between Walnut Grove and Rosemead Boulevard on Valley Boulevard. Planning Technician Casillas replied there are seven (7), Commissioner Lopez asked if the City currently has a requirement in the amount of ABC licenses that is allowed in a specific area. Planning Technician Casillas replied no. Commissioner Lopez asked if it has ever been discussed. Planning Technician Casillas replied no, not to her knowledge and explained Conditional Use Permits are taken case by case basis. Commissioner Lopez asked how many ABC licenses are next to each other or are they spread out between those few blocks. Planning Technician Casillas replied they are spread out and you may have two (2) or three (3) in the shopping center. Chair Eng addressed Commissioner Lopez and informed him that staff has provided a map for each of the Planning Commissioners tonight showing the location of approved ABC licenses locations for their review. She added this was designed to help the Planning Commission when reviewing these type of licenses to look at it and see how spread out they are or how concentrated they are pertaining to the City because sometimes the census tract will cross City boundaries. Commissioner Lopez referred to the map and stated he only sees three (3) within the area he referred to. Vice -Chair Eng stated this map is a helpful tool and encouraged staff to continue to include and update this map as each ABC license application is submitted and approved. She asked the Planning Commission if there were any more questions or comments on this item. None Vice -Chair Eng asked for a motion. Commissioner Tang made a motion, seconded by Commissioner Lopez, to ADOPT Resolution No. 13 -14 with findings, and APPROVE Conditional Use Permit 11.15 subject to the twenty -eight (28) conditions. Vote resulted in: Yes: Eng, Lopez, Tang No: None Abstain: Dinh Absent: Herrera Community Development Director Ramirez explained the ten (10) day appeal process. B. ANNUAL REVIEW OF WAL -MART CONDITIONS OF APPROVAL & MODIFICATION 13.04 - On September 8, 2004, the City Council approved the Wal -Mart development at 1827 Walnut Grove Avenue and adopted a comprehensive list of project conditions, as well as a Mitigation Monitoring Plan (MMP). On December 13, 2005, a revised Final Environmental Impact Report was certified in accordance with the California Environmental Quality Act requirements. Condition of approval No. 59 requires the Planning Commission to conduct an annual review of Wal -Mart's operation to ensure compliance with all conditions of approval and mitigation measures outlined in the MMP. The City of Rosemead Planning Commission conducted Wal -Mart's last annual review on August 20, 2012. There were only two (2) areas of maintenance improvements that were found during the 2012 review, which includes landscape maintenance and parking lot maintenance. Both issues were resolved by September 2, 2012. This report will provide an overview of Wal -Mart's compliance with all conditions of approval for 2013. Since Wal -Mart has demonstrated a good effort to satisfy all conditions of approval over the last few years, Wal -Mart Stores, Inc. has submitted an application requesting to modify the conditions of approval for Development Agreement 0401, Tentative Parcel Map 26827, and Conditional Use Permits 02.882 and 03.939 to eliminate Condition of Approval Number 59, which currently requires the annual Planning Commission review of Wal -Mart's compliance with the conditions of approval. STAFF RECOMMENDATION - Based on the analysis contained in this report, it is recommended that the Planning Commission APPROVE or DENY Modification 13 -04. Following the Planning Commission's recommendation, staff will provide the appropriate resolution at the next regular scheduled Planning Commission meeting. Associate Planner Trinh presented the staff report . Vice -Chair Eng asked if the Planning Commission had any questions or comments for staff Commissioner Tang asked what the original intent in regards to Condition of Approval number fifty-nine (59) was Community Development Director Ramirez stated this question can be deferred to Greg Murphy, City Attorney. Greg Murphy, City Attorney, stated his firm was not representing this City when this was first drafted, so he is not informed on everything that went into this. He explained that with a large scale project like this, with major construction and initial operating impacts that were major concerns to the citizens and to the City itself, it is the type of condition that would be included to make sure the project came back on an annual basis especially during the first few years of operation and certainly during the construction Period to make sure the conditions of approval are being complied with. He referred to a question that was asked at a previous Planning Commission meeting in regards to a Conditional Use Permit and why it did not require an annual review. He explained normally these type of reviews do not have to be done because construction is completed in a shorter amount of time and normally the conditions of approval are sufficient to tie a business or residence to a certain type of operation or construction and then staff has the ability to bring the matter back for modification or revocation if they are not meeting their conditions. In the case of this large scale project, given the size and interest to the public at the time, he explained how staff, the City Attorney's office, the Planning Commission, or the City Council would have said let's go one step further than just bringing it back, if there are questions or complaints about the operational standards let's make sure to bring it back to make sure that operational compliance is there. He added in the time he has been with the Planning Commission he has seen several of these reviews and each review has gotten smaller and smaller as conditions are not relevant to the review. He explained construction has been completed and other steps have been taken and other items come up each year because they deal with on -going matters and that is what is before the Planning Commission tonight. He added in terms of the Modification that is being requested that really becomes a much more policy issue for this Planning Commission to decide rather they think they want to see on -going or instead treat this large -scale development the way the smaller developments are treated. Community Development Director Ramirez explained these Annual Reviews are normally presented to the Planning Commission under the Consent Calendar and is not a Public Heanng item. She added it is more of a Receive and File, and due to the Modification that is being requested tonight this item becomes a Public Hearing. Commissioner Tang asked how many of the Conditions in the Annual Review still pertains to the annual review. Community Development Director Ramirez replied there are approximately twenty (20) under the Planning Division review, two (2) under Public Works, and none under Fire Department. She explained the twenty (20) conditions of approval that is under the Planning Division pertain to property maintenance. Commissioner Tang asked what some of the previous reviews and findings were in the past. Community Development Director Ramirez replied since she has been here the Annual Review has come back as Receive and File and Wal -Mart has been in compliance. Commissioner Tang confirmed that for the most part it has, but this year it has been found there are two minor maintenance improvements and asked if that is correct. Community Development Director Ramirez replied yes. Commissioner Tang asked how much of a burdensome it is for staff to conduct this Annual Review. Community Development Director Ramirez replied the Planning Division normally starts this review in June and it will take a couple of months. She explained other departments /agencies, such as Public Works and the Fire Department, need to be contacted for their input. She added the Planning Division review is typically very easy. Commissioner Tang asked how much of a burdensome it is for the business. Community Development Director Ramirez replied that question can be deferred to the applicant's representative. Commissioner Dinh asked if there are any other large developments within the City of Rosemead that require an Annual Review. Community Development Director Ramirez replied no. Commissioner Dinh asked if Target required an Annual Review. Community Development Director Ramirez replied no. Commissioner Dinh asked if there have been any incidents that have procured within the past year other than the two incidents that have been found. Associate Planner Tnnh replied the only incident that has been received was a noise issue from a resident. Vice -Chair Eng asked staff if this year's Annual Report had a sense of crime activity of this site compared to last years review Associate Planner Tnnh replied there is a report from Public Safety and staff did talk to the Lieutenant and Senior Code Enforcement Officer. She added the items they discussed were in reference to non - conforming conditions and landscaping concerns. Community Development Director Ramirez clarified that Vice -Chair Eng was asking if crimes had been reported at Wal -Mart. Associate Planner Trinh stated those incident reports were not given to staff. Community Development Director Ramirez explained that is not a requirement of the Conditions of Approval. Vice -Chair Eng referred to the Mitigation Monitoring Program and asked if staff is required to contact Wal -Mart and announce that they are going to conduct an inspection. Community Development Director Ramirez replied no, and explained that several departments /agencies do inspections, such as the Planning Division, Public Safety, Public Works, and the Fire Department. Vice-Chair Eng asked if Condition of Approval number fifty -nine (59) is removed will that also automatically remove some of the other conditions of approval. Greg Murphy, City Attorney, replied legally no. He explained the only thing that would change is that there would not be Annual Review by the Planning Commission of the operation to ensure compliance with the conditions of approval. He stated all the conditions of approval will stay in place and staff will continue to respond to citizen complaints. He stated if any non - compliance with a condition of approval rouses to the level of needing a modification or revocation of the conditional use permit, then it would be brought back to the City Council for final approval. Vice -Chair Eng stated she would like clarification on Condition of Approval number thirty -seven (37) in the Wal -Mart Conditions of Approval (page 9 of 26) and read it She asked staff what would constitute a substantial change. Community Development Director Ramirez replied it would be anything that would cause a modification to their conditional use permit. Vice -Chair Eng referred to Condition of Approval number fifty -two (52) and asked if it is still relevant. Community Development Director Ramirez replied no, and that it states the applicant has satisfied this condition. Vice -Chair Eng read "monies were deposited" and she asked what the monies were for and if they were refunded to Wal -Mart. Community Development Director Ramirez replied that will have to be verified. Vice -Chair Eng addressed Greg Murphy, City Attorney, and asked if he could clarify that statement. Greg Murphy, City Attorney, replied he did not have that information. Vice -Chair Eng referred to Condition of Approval number fifty -three (53) and asked if this is still relevant. Community Development Director Ramirez replied that it states the applicant has satisfied this condition. Vice -Chair Eng asked if monies have been refunded. Community Development Director Ramirez replied staff can verify if the monies have been refunded. Vice -Chair Eng asked if there were any further questions or comments for staff. None Vice -Chair Eng opened the Public Hearing and invited the applicant to the podium. Tracy Owens from the Law Office of Gresham Savage stated she is here on behalf of Wal -Mart. She thanked staff for all their hard work on the Annual Review and Modification request that is before the Planning Commission. She clarified that the only thing that is being requested is the deletion of Condition of Approval number fifty -nine (59), which requires this Annual Review. She stated Wal -Mart fully intends to comply with all of the other conditions and they are not seeking to change any other aspects of their store operations, so the hours of operation and all the other conditions will remain the same. She stated the reason for their Modification request is two-fold, the first and foremost is that they have had a good record of compliance for the past seven (7) years, since the store first opened in 2006. She added secondly, they believe there are other mechanisms to ensure they are in compliance with their conditions of approval without having to use staff time and City resources in conducting an Annual Review. She stated staff indicated that there are only fourteen (14) to twenty (20) of those conditions actually relate to operations now that the store is open. She stated there was a total of one hundred and fifty -nine (159) conditions that were imposed on the development, which included the Mitigation Measures and EIR. She slated about sixty (60) of them were Planning conditions and about a third (1l3) or less remain relevant since the store has been open. She stated each of these conditions are listed in the staff report material but they mostly relate to Wal -Mart having a security plan in place, parking lot maintenance, graffiti removal, and limitations on store /delivery hours. She added these are standard conditions and they are usually seen and implemented on other projects within the City . She added Wal- Mart implements and honors all of these conditions as part of its own intemal operations because they are good business practices and have high standards for the operation of their stores. She added if their request is approved tonight she stated there are several other ways to ensure compliance. She referred to Condition of Approval number fifty -six (56) relates to alcohol sales and this is something that is enforced by the ABC according to the terms of the store liquor license, which they have had since 2008, and there have not been any violations or disciplinary actions. She referred to Condition of Approval number four (4) which will remain in effect requires that the store comply with all federal, state, and local laws, which include the City's Municipal Code, so any violations whether they be noise ordinance violation, littering, anything of that nature would be subject to the City's enforcement process independent of any Annual Review. She pointed out that it is a goad thing that the City does not have to give notice to conduct inspections because the City has the ability to visit the store at any time and it is encouraged so that the City may see how well the store is maintained. She stated there are specific code sections in regards to graffiti and shopping cart retneval, which are also included in the conditions of approval, but are also required separately by all businesses by the Municipal Code. She slated if a neighbor has a concern or complaint then they are welcome to contact the store or the City can contact the store and they will work to resolve the situation. She referred to the complaint that was related to the solar inverter and stated that Wal -Mart had installed solar panels on the store a couple of years ago. She added a neighbor had complained about a vibrating noise coming from the equipment during daytime and explained that it does not operate at night because when the sun goes down it does not need to power up anymore. She stated the store manager invited the neighbor to the store and walked the perimeter of the site with the neighbor to hear what he was hearing. She stated Wal -Mart reached a solution and explained they will be installing a fence with a special acoustic banner around that equipment. She added that should be completed by the end of the month and will have to go through the City's permitting process to do that. She stated as an Annual Review process may have made sense when the store was first constructed it has somewhat become a duplicative and unnecessary process in that there a so few operational conditions left because they are already subject to enforcement by the City and other agencies. She stated they are the only retailer in Rosemead that is required to have this Annual Review. She added this is the only Wal -Mart in California that has been required to come back before a Planning Commission for a review. She thanked the Planning Commission for their consideration of their request is will be happy to answer any questions they may have Vice -Chair Eng thanked Ms. Owens and invited the next speaker to the podium. Mary Faras, resident, staled that eliminating this may be an advantage to Wal -Mart but it will not be to the residents that surround the store. She expressed that part of this resolution was made primarily for the residents that are close to the store because they are the ones are affected by some of the concerns that occur at Wal -Mart. She stated she has asked the Planning Commission to do something about the noise that comes from the top of Wal -Mart and nothing has been done about that. She expressed that eliminating the Annual Review will not be helping anyone at all and does not agree with the comment that it is an added expense for Wal -Mart due to this is once a year. She thanked the Planning Commission and requested that the Annual Review not be eliminated. Tseng -Ping Liu, resident, stated he is the person that fled the complaint of the noise coming from Wal -Mart and referred to page two (2) of the Staff Report. He stated the Staff Report refers to the solar system having a faint noise but he explained it is not a faint noise and that it is a constant high pitch buzz and played a recording of the noise. He stated when the solar system is operating this is the noise that he and the neighbors hear every day. He expressed this noise is very disturbing and he cannot even sit outside on his patio. He stated he is a licensed therapist and he sees mental patients in the community and explained that he knows this noise may cause psychological distress. He stated that he began his complaint several months ago beginning with his Association first and they tried to contact Wal -Mart but did not get a response. He contacted the City in April and was referred to Community Development Director Michelle Ramirez who contacted Wal -Mart for him. He stated that he was told Wal -Mart reported the noise was from Southern California Edison, so he contacted Edison and they sent a technician out to investigate. He explained that Edison reported the noise was from Wal -Mart and expressed he felt he was getting bounced back and forth. He added Wal -Mart investigated further and it was found that the noise was from the solar system and they are now addressing this issue. He stated he received a letter and a phone call from Wal -Mart stating they will be taking care of this issue soon but expressed concern that he has not received any details of exactly will be done. He added that he would like to know what time the noise decibel reading of 73 was measured because the noise level is all day and very loud. He stated he is being told that it will be reduced to 53 after the installation of the banner and his concern is what if the noise is still there and how it will be resolved. He requested that this be resolved and that the noise be eliminated not reduced and that the Annual Review kept in place. Vice -Chair Eng invited Yvonne Fernandez to the podium. Yvonne Fernandez abstained from commenting and explained her question had been answered in regards to the business hours not changing. Lydia Martinez, resident, stated she lives right behind Wal -Mart and that it has been many years since the Wal -Mart project was proposed, which was opposed. She reminded the Planning Commission that this is in a residential area and this has caused a big change in their lives. She stated the noise has been a constant complaint that has fallen on deaf ears. She added the air conditioning units are a constant hum 2417 and their complex is a little over one hundred (100) feet from the back of Wal -Mart. She stated it was suggested that the residents along Delta Avenue request double -paned windows, which Wal -Mart has provided for other projects. She expressed concern with the trash that is left from the customers of Wal -Mart and the shopping carts that are taken from the site and left in the neighborhood. She stated this should not be allowed and mentioned there has also been an increase in burglaries, which she herself has been a victim of attempted burglary and clarified whom to contact in case of burglaries. She stated she has complained and written to the City and spoken to the Planning Commission in the past in regards to the landscaping and the type of trees that have been planted along Delta Avenue because the trees that are currently there are not noise absorbent. She reported some of the current trees have also fallen down and not been replaced. She requested these issues be addressed and stated this is a residential community, unlike Target which is in a commercial center, and that they would like to feel safe in their neighborhood. She requested that the Planning Commission keep the Annual Review in place. Marlene Shiner, resident of South San Gabriel, stated she is not a resident of Rosemead but the City of Rosemead decided to build this Superstore in her quiet, peaceful, safe neighborhood that had been zoned as 10 Residential Housing and Corporate Headquarters and not retail. She expressed that the aftermath of this development has affected the quality of life for her, her family, and her neighbors. She stated their opposition a relentless fight against the building of a Wal -Mart 24 hour Superstore at this neighborhood located directly across from Rice Elementary School cost Wal -Mart hundreds of thousand dollars more than they wanted to spend, resulting in what is said to be the most attractive store for Wal -Mart. She added at the expense of the residents who fought for their neighborhood whereby came conditions of approval and mitigation measures. She stated Wal -Mart agreed to abide by these laws if allowed entry, afterthey developed their Superstore and now Wal -Mart is requesting to eliminate Condition of Approval number fifty -nine (59) and read the condition to the audience. She commented that Wal -Mart should welcome Condition of Approval number fifty-nine (59) as annual opportunity to publically state how proud they are that they do comply with the conditions of approval and mitigation measures declaring themselves a good neighbor. She read a statement by Wal -Mart Attorney Mark Ostoich regarding limitation of operating hours that was presented to the Planning Commission in the year 2004. She addressed the Planning Commission and requested they not release Wal -Mart from Condition of Approval number fifty -nine (59). She asked the Planning Commission if Wal -Mart has requested a change in their hours of operation. Community Development Director Ramirez replied no. Marlen Shinen, resident of South San Gabriel, expressed concern on the trustworthiness of Wal -Mart, the Planning Commission, and City Council and requested that the Planning Commission listen to the near -by residents and not consent to Wal -Mart's request to eliminate Condition of Approval number fifty -nine (59). Juan Nunez, resident, stated Condition of Approval number fifty -nine was placed for a reason and requested the Planning Commission continue the Wal -Mart Annual Review. Todd Kunioka, PhD, and resident, stated that he is present to request that the Annual Reviews continue and that it is a good idea. He commented that what has been happening over these past few years is that only when these Annual Reviews are held that these issues get addressed, such as the noise issue. He gave a brief history of how long it took to gel the sound study that measured what the neighbors knew for years, which was Wal -Mart has been violafing the noise ordinance in the City of Rosemead for basically five (5) years. He stated it is a combination of issues like the transformer, the solar panels, the HVAC, noise bouncing off the walls like cars driving on Delta, and there are a lot of sources of noise there. When you try to point a finger at one place it is not going to be the whole solution and it has not been very proficient but this Annual Review is how you gel it. He stated Wal -Mart is the only one that does this in the City but they are also the largest post CEQA development. He stated when Target was built in the 60's there were no CEQA requirements. He explained Wal -Mart knew there were houses behind them, a school across the street, and there is different safety issues there that are going to be very different. He stated it was very important that Wal -Mart open their store very quickly and they did so if they move into that neighborhood they need to respect the neighborhood. He stated the noise and shopping carts issues have been discussed frequently and without the Annual Review he does not feel these problems would be addressed and makes possible the enforcement of conditions of approval. He added this review has created some positive outcomes such as the truck signage. He commented that landscaping on Delta Avenue has been a recurring issue and the trees should be to help insulate some of the noise between the residents and the building. He recommended that growing plants that will serve better as a sound barrier is something to consider. He added the lighfing is supposed to be full cut -off lights and they are not He stated the main issues are sound, landscaping, and sound absorbing reflector on the roof for the HVAC is something to consider. He thanked the Planning Commission and asked them to consider what they are hearing from the neighbors. Brian Lewin, resident, stated he has been seeing these problems recurring at Planning Commission meetings for years and has seen a number of these people in the audience also. He added he has been hearing about these problems and lack of resolutions for these problems and their continued fights to get them resolved for many years . He stated a lot of these issues have been addressed at the Annual Review and aired out in public rather than in the background. He stated it is important to keep the annual spotlight that addresses issues is important and if a single issue is brought up to the Planning Commission that is the only issue that can be discussed or there will be a Brown Act concem. He stated by continuing the Annual Review you have a single forum where everything can be discussed. He stated this is a building that was put in a place where it really was not supposed to be and it was zoned for Residential Housing and Light Industrial for office buildings. He added it has a different impact that other places do and it is very important to continue this Annual Review. Marlene Shiner, resident of South San Gabriel, stated the reason she does not trust Wal -Mart is because none of these violations of conditions of approval appeared on the review. She stated the shopping carts are all over the place, the noise issues, and other items that you hear about, but when the review comes around you don't hear about them. She asked why they are in compliance when they are really not. Vice -Chair Eng asked if there was anyone else wishing to speak from the public None Vice -Chair Eng invited the applicant to the podium to address the commentslconcems that have been discussed Tracy Owens, from the Law Office of Gresham Savage, stated in the initial years of operation the Annual Review did serve some purpose to work out some of bugs as the store adjusted to the neighborhood and the neighborhood adjusted to the store being there and that included signage for the truck access. She stated there was a noise issue specifically addressed to the Southern California Edison transformer and it took some time to investigate that issue and it was somewhat out of Wal- Mart 's control because the transformer cannot be undergrounded. She stated the solution that was reached in 2009 or 2010 was to construct a sound wall around that transformer, since then she is not aware of any other noise complaints other than the recent complaint related to the solar inverter. She stated she attended last years Annual Review and it was received and file as a consent item and there were not any neighbor's that showed up at last year's Annual Review and raised any concerns. She added the complaint process that is available to anyone in the community as really being separate from this Annual Review process. She stated Wal -Mart will continue to work with any neighbors that have concerns about noise or any aspect of operations that does not necessarily need the Annual Review forum to do that She stated she is available for any questions anybody may have. Commissioner Tang asked Ms. Owens how burdensome is it for Wal -Mart when the City conducts this Annual Review. Tracy Owens replied it is burdensome in the terms that they have to obtain this law firm to come to these hearings every year She stated they are actively engaged with this store and usually when the store starts operating they would not really have a need for representation at these hearings. She stated there is some cost to coordinating staff in terms of her time and store management time. Commissioner Tang stated the reason they are having this hearing is because Wal -Mart has requested the removal of Condition of Approval number fifty -nine (59) and otherwise there is not a public hearing. Community Development Director Ramirez replied that is correct. Commissioner Tang asked if there is not a Public Hearing then why Wal -Mart would have to retain legal services. Tracy Owens replied in the past there were several years between 2007 and 2010 where it was a Public Hearing item or it was pulled from the Consent Calendar. She explained they were always here just in case there were any questions that came up. Community Development Director Ramirez stated that is correct and items can be pulled from the Consent Calendar. 12 Commissioner Lopez stated that he is one of the original Planning Commissioners that voted for Wal -Mart but he also fought hard for them to have these conditions of approval and this Annual Review. He stated from the perspective of Wal -Mart he can't see why they can't be here every year to show that these things are being done because they hear complaints and see it. He stated there is noise and sometimes you can't pinpoint it but you know it's coming from there. He stated without this Annual Review how will it be voiced and sometimes you do have deaf ears coming from Wal -Mart. He stated with this Annual Review the Planning Commission will hear the complaints and be allowed to move or disapprove items and that is there promise to the community to listen to them. He stated he recommends that the Annual Review continue. Vice -Chair Eng asked if there were any other questions or comments. None Vice -Chair Eng closed the Public Hearing and asked the Planning Commission if there were any further comments or questions. Commissioner Dinh stated initially she had made a decision based on her research she had obtained. She stated she had called other Planning Departments within the cities that had a Wal -Mart. She contacted Baldwin Park, Pico Rivera, and Duarte and fortunately two did call her back (Pico Rivera and Duarte) and their Planning Department staff mentioned they did not have an Annual Review. She added after speaking with staff it seemed tedious and what was the purpose of doing the Annual Review if they are not finding anymore findings. She stated why is it that any other large scale developments are not required to have Annual Reviews and she based her decision on that information. She explained that after hearing the voices of residents and putting a face to the people she has had a change of heart. She stated the Staff Report indicated that that Wal -Mart has done a wonderful job but it was not until tonight that the Planning Commission heard there are still problems and if Wal -Mart is going to live within a community with the residents you will need to respect the residents and respect the people in your surroundings and that is the only way for everyone to live together. Commissioner Tang stated he appreciates Wal -Mart's efforts in good faith efforts to be in compliance and provide a clean and safe environment for their customers and community. He added just because Wal -Mart is in compliance, it is the City's responsibility to conduct an Annual Review just to provide a reasonable oversight. He stated the findings for this year were minor but was discovered because of an Annual Review and that in essence forces Wal -Mart to make the corrections. He stated those solutions were developed because of the Annual Review and it provides a voice for the community. He stated the Annual Review is a necessity even if it is only once a year. He stated the burdensome on staff or Wal -Mart is not so great that it says it does not need an Annual Review. Vice -Chair Eng stated she agrees that Wal -Mart has demonstrated and worked in good faith to be a good corporate neighbor and partner. She thanks Wal -Mart for their diligent efforts but she is not prepared to remove the Mitigation Monitoring Plan. She stated even though Wal -Mart has been open since 2006 they are still learning that the MMP is an important tool to help the City continue to mitigate impacts to residents for major tenant projects such as Wal- Mart, as well as improving planning efforts because the City desires to bring in more national chain developments. She stated she supports that the City continue the Mitigation Monitoring Plan, Greg Murphy, City Attorney, explained that the Planning Commission has voiced some concerns on the record and whatever motion is made it is going to be based upon the facts and findings you have each made on the record and those will be incorporated by staff into a Resolution. He stated if there is anything else that the four Planning Commissioners would like incorporated in a Resolution please say it so that all the findings in the Resolution accurately reflect their conclusions they are about to reach. 13 Vice -Chair Eng requested that staff look into the noise issue and see if there are any other reasonable solutions to address this concern. Commissioner Tang asked if the noise is one of the Conditions of Approval that the City regulates. Associate Planner Trinh replied the City does have a Noise Ordinance and Wal -Mart would have to follow those requirements. Commissioner Tang stated that this is a unique situation of a Wal -Mart Supercenter because it is next to Condominiums. Associate Planner Tdnh explained there are decibel levels that are listed in the Noise Ordinance that is very specific. Community Development Director Ramirez explained that the City's Public Safety Division, specifically Code Enforcement, do have devices to go and read the noise decibel levels. She added they do this and so far they have not reported to staff that the noise levels have been an issue. She stated that does not mean the noise issue does not exist or that it is annoying for the residents. Vice -Chair Eng asked Greg Murphy, City Attorney if there is anything else that needs to be incorporated. Greg Murphy, City Attorney, replied as long as staff is satisfied, then he is satisfied there is sufficient rationale on the record, so a motion may be in order Community Development Director Ramirez stated staff would like more clarification and asked the Planning Commission if there is anything else other than noise they would like to address or incorporate. Commissioner Dinh asked if staff could follow up on the shopping cart issue. Community Development Director Ramirez explained that right now a Resolution needs to be made and the Planning Commission needs to give reasons why they are recommending Denial. She staled if the Planning Commission believes shopping carts is an issue then that is something that would be incorporated into the Resolution. Tracy Owens addressed the Planning Commission and requested to speak Vice -Chair Eng invited Tracy Owens to the podium. Tracy Owens stated if there are specific issues such as noise and shopping carts that are the main concern, then she would like to propose to continue this item to allow more time to address those two specific issues that the Planning Commission is concerned with She added she would like to propose this as an alternative as the Planning Commission is making their vote. Vice -Chair Eng thanked Ms. Owens. She stated that she understands what staff is asking but she would like to recommend that the Mitigation Monitoring Plan continue even if the noise issue is addressed, She added it allows the opportunity and forum for the residents living adjacent to Wal -Mart to address the Planning Commission and express the concerns they may have. She stated the Planning Commission has a responsibility to the community, businesses, and residents and she appreciates Ms. Owens proposal to continue this item but she recommends that the Mitigation Monitoring Plan continue. 14 Community Development Director Ramirez clarified that this item will automatically be continued so staff can bring back a Resolution to next regular scheduled Planning Commission meeting to be held on October 21, 2013, so that it can be approved by the Planning Commission. Greg Murphy, City Attorney, stated that if the Planning Commission is ready to vote, the motion would be either to direct staff to bring forth the Resolution approving the applicant's request, or a motion to direct staff to bring forth a Resolution denying the applicant's request, and setting the date for that to be the next Planning Commission meeting. Community Development Director Ramirez stated the next regular Planning Commission meeting will be held on Monday, October 21, 2013. Commissioner Tang asked Mr. Murphy for clarification and that if the motion is to approve the applicants request, it would mean the elimination of the Annual Review, and to deny the request it would mean to keep the Annual Review. Greg Murphy, City Attorney, replied that is correct. Community Development Director Ramirez stated in the Resolution itself, if the Planning Commission chooses to deny the request it will be based on their comments of the two violations of noise and shopping carts. She asked if there is anything else the Planning Commission would like to add. Commissioner Tang stated there is more than that, it is to keep up with the continuous concems of the residents in regards to noise, shopping carts, continually maintain the upkeep of the property, and trash is a concern as well. Vice -Chair Eng re- iterated that this is an important tool for the community to attend the Planning Commission meeting to express their concerns, impacts, and to take steps to correct them. Associate Planner Trinh asked Greg Murphy, City Attorney, if these reasons are sufficient enough to meet the findings for a Conditional Use Permit. Greg Murphy, City Attorney, replied the findings to Modify a Conditional Use Permit is different and you would not have to go through all the findings. Associate Planner Trinh stated the City of Rosemead does not have modification findings so theyfollow the conditional use permit findings. Greg Murphy, City Attorney, stated in this case you would be denying an application for that modification and he is satisfied based on his read of the findings that the Planning Commission has stated enough to support their position. Vice -Chair Eng asked for a motion. Vice -Chair Eng made a motion, seconded by Commissioner Lopez, to DENY Modification 13.04. Following the Planning Commission's recommendation, staff will provide the appropriate resolution at the next regular scheduled Planning Commission meeting. 15 Vote resulted in: Yes: Dinh, Eng, Lopez, Tang No: None Abstain: None Absent: Herrera Community Development Director Ramirez stated the vote is four (4) Yes's for staff to bring back a Resolution to the Planning Commission meeting on Monday, October 21, 2013, denying Wal -Mart's request for Modification 13 -04. She stated staff will check with legal counsel to determine if this will be placed under the Consent Calendar. 4. CONSENTCALENDAR A. Minutes - September 16, 2013 Vice -Chair Eng referred to page nine (9) of PC Minutes 9 -16 -2013 and requested they it be corrected to include a summary of Brian Lewins comments or concerns to show more contexts. Commissioner Lopez made a motion, seconded by Commissioner Tang, to approve Minutes of September 16, 2013, with corrections. Vote resulted in: Yes: Dinh, Eng, Lopez, Tang No: None Abstain: None Absent: Herrera 5. MATTERS FROM STAFF Community Development Director Ramirez announced the upcoming Young Amencan's Musical Workshop sponsored by the Parks & Recreation Department and gave the location, date, time and fee of the event. She also announced there will be a Mayor's Community Breakfast and gave date, time, fee, and location of this event. 6. MATTERS FROM THE CHAIR & COMMISSIONERS Commissioner Lopez referred to Rosemead Boulevard and asked staff who cleans under the freeway bridge as you are entering the City of El Monte. He expressed concern that it needs to be cleaned up. Community Development Director Ramirez clarified if it is on the south side of the freeway and is in the City of El Monte. Commissioner Tang asked if Rosemead Boulevard is taken care of by Cal- Trans. Community Development Director Ramirez replied not all of it, but the part that goes through Rosemead is. She went on to explain that but there are certain cities that have taken over the jurisdiction of Rosemead Boulevard but Rosemead is not one that has done so. Commissioner Lopez stated that it also depends on what side of the street it is Vice -Chair Eng requested that staff come up with planning tools, ideas, or suggestions in how the incorporate more diversity of businesses in shopping centers. She stated with the packing situation within the City, if we get more creative and have more diversity of the types of businesses that go into the shopping centers that might alleviate some of the parking congestion that collects in shopping centers. 7. ADJOURNMENT The next regular Planning Commission meeting will he held on Monday, October 21, 2013 at 7:00 p.m. Meeting was adjourned at 8:37 p.m. Cd Dia a Herrera Chair ATT �' 4,W7-tL Rachel Lockwood Commission Secretary 17