Planning Commission - Regular Meeting

Call to order the regular meeting of the Belvedere Planning Commission. The first item is open forum. Open forum is an opportunity for any citizen to briefly address the Planning Commission on any matter that does not appear on the agenda. Comments are limited to no more than three minutes. Matters that appear to warrant commission consideration may be agendized for further discussion at a later meeting. Is there anyone in the audience that would like to speak during the open forum? Rebecca, is there anyone on Zoom?

There are no hands raised on Zoom. Thank you.

Reports. Are there any commissioners who would like to provide a report? Staff, do you have any reports?

No reports.

Thank you. I'll now move on to the consent calendar. The consent calendar consists of items considered to be non-controversial. Unless any item is specifically removed by any member of the council staff or public, the consent calendar will be adopted by one motion. Items removed will be considered in the sequence that they appear on the agenda. Would any member of the planning commission like to remove a consent calendar item? Rebecca, any hands on Zoom?

No hands raised on Zoom.

Thank you.

I'll move to approve the consent calendar.

Second.

All in favor? Aye. Thank you. I will now open the public hearing. on item two, design review and demolition to remove an existing pier and construct a new pier in the same location at 43 Cliff Road. Are there any questions from the planning commission of staff?

I do have questions. Did you ask if you have questions? Yeah, for staff.

If you want to ask staff question, now's the time.

Don't they present first? No? Do you have a...

Did I skip the staff report? Yes, I did. Okay. My apologies. Fortunately, my fellow commissioners keep me in line. May we have the staff report? Somehow it disappeared out of my script.

Of course. Thank you, Chair Seidel and members of the Planning Commission. For your consideration, this evening is an application for design review and demolition to demolish the existing pier and construct a new pier at 43 Cliff Road. The site is comprised of a steeply sloped 30,000 square foot lot on the Western side of Bellevue Island. In 1976, the property received design review approval to construct the existing pier, which extends into Richardson Bay. The property has an active building permit to construct a new single-family residence. The project received the building permit in October 2022 and was assessed a two-year construction time limit. The project is more than 18 months over its CTL. The CTL code by which 43 Cliff Road is governed is clear and should a new or amended building permit be applied for and issued, the new building permit is under the same CTL timeline as the first permit that was issued. The project proposes to demolish the existing 712 square foot pier and construct a new 450 square foot pier in the same location. The proposed pier would maintain its existing length of 88 feet while reducing the walkway width from eight feet to four feet. The project would remove the existing pilings and install seven 18 inch diameter steel piles as well. The pier would be constructed at an elevation of 13 feet above mean lower low water line. This height is a four foot increase above the existing pier's elevation. These images from the pier at Two Cliff Road show the intended look of the 43 Cliffs Pier. Colors and materials include light-transmitting wood decking, 2-inch diameter aluminum posts, and 1-inch diameter stainless steel tube railings. The steel pilings would be wrapped in a high-density plastic in a black color. The project is located in a vicinity of eelgrass, which are considered essential fish habitat for special status aquatic species. Staff recommends that the analysis and the adopted 2018 initial study and mitigated negative declaration by the Regional Water Board adequately addresses the environmental impacts of the proposed project and offers appropriate mitigation measures. The ongoing construction project has exceeded the CTL by over 18 months resulting in construction related impacts citywide and within the surrounding neighborhood. However, the planning commission's consideration this evening is to the required design review and demolition findings, which are not necessarily contingent on the project CTL status. Staff is working with the applicant to encourage timely completion of the project and anticipates construction of the pier will occur concurrently with completion of the residence. The applicant has indicated that issuance of the building permit for the pier will not extend the overall construction schedule and that both improvements are expected to be completed within approximately two years. With that, staff recommends that the required findings can be made to grant design review and demolition permit of the pier. The project will reduce the pier's square footage within the same location, thereby minimizing its overall massing and potential view impacts. Materials are compatible with waterfront properties in Belvedere, and the four-foot pier height increase will not appear excessively large or attract attention to itself. With that, Rebecca and I are happy to answer any questions.

Now would the planning commissioners like to ask questions?

Yeah. Just some clarification about the CKL, which my understanding is the project. Yeah, I'm sorry. The limit now is October 2024. And there's a note here that says if the permit is approved for this pier before then it could be assigned the same CTL, which would be October 24th, 2024. What does that do for us? I mean, is there, you know, it's, one, I guess, is that reasonable in all cases, which is to say, would say suppose the the building permit comes you know a month before the project is completed the rest of the project um it is it's still assigned the same backdated ctl i mean is it really are we just It all feels a little bit like a gentle fiction that is where we have this outdated now or long gone CTL. We all understand that the project simply takes a long time and the doc will take to get it all done. Gosh knows what El Nino Palooza is going to do this winter. So it could take even longer than anybody would imagine at this point. PB, John Gerstle:" But i'm i'm just saying what is the in this case kind of what's the value of the. PB, John Gerstle:" ctl and. PB, John Gerstle:" But why do we care what the Doc is assigned at this point, since it seems rather random.

Well.

And does it matter? This is the process.

I mean, you know, caring is different than sort of what our code says, right? So the way that our code was written, right, because this is under an old CTL code, is that in the way that it's described at a pre-construction meeting and the way that we communicate with applicants and contractors is, here's your main building permit. It's assigned this CTL, any subsequent amendment to that permit, or should it warrant a new permit? It's all tied to that first building permit number. It's all retroactive to that initial building permit CTL date. So the onus is on the applicant and the contractor, right? To, you know, they know that coming into this. And so I think it would behoove them to do the, you know, not apply for something that would prolong the project.

Sure.

Right. But yeah.

Yeah.

If I may commissioner, if I could just add a little bit more in a way, you may be asking why was this information shared with you about the CTL? Is that, well, is that right?

I would assume ordinarily that isn't under our purview anyway. Right.

Yeah, so CTLs, well, I guess in the initial design review approvals, there is a CTL assigned to the project. So that is normally sort of present in the context that you're considering. And I think staff felt the commission should be aware of where this project does stand with respect to its current CTL timeline as just context that you should be aware of. In some ways, we felt like it wouldn't be appropriate not to tell you about that background as this project comes before you. So we felt it was important to share. I mean, it is an important facet of the project to just let you know what the project status is because this is tied to that original approval from way back when. So we certainly felt it was just important for you to understand those facts.

Okay, good. I might come back to that later.

Okay, of course.

To continue on that, let's say if a project takes 10 years ongoing, would we just let it go for as long as it takes, and then at the end of the project, we go and assess whatever we need to assess, or there is a timeline that we would ask the applicant to get a new permit, ask for an extension, or what is the rule? Just let them go forever or for as long as they wish, and then at the end of the project, we address that?

Yeah.

At the end of the project, we would address it. And that's why we've amended our code, right? Because if you're waiting 10 years and you're accumulating a fine every day, it's a very large fine. We've amended the code sort of in a pay to play model, right? You want an extension, you come to council, then it's based on your building permit fee and you're paying at that point.

So you would never give a stop work to a project just because it is too lengthy or exceeded the time limit beyond reasonable amount. I'm not saying about this project in general.

We wouldn't give a stop work order for a CTL violation. Or we haven't. And I don't think that's in our previous code.

We have it under the older version of the code that applies to this project. But as Rebecca alluded to, There are some downsides to that older code as well as we moved to the newer one, which is essentially they have to come back to get more time on their building permit to proceed with the project. So you don't end up in the situation where perhaps some builders, some owners feel like they almost are willing to pay the fine to get more time. The city's priority and respect to all these construction timeline matters is obviously we do want projects to finish on time as originally intended. You know, that is always the city's focus. And I know that staff is always trying to work with people to make sure that they do finish on time. So we certainly don't turn a blind eye to projects that take years and years and years to go on, which going back to Commissioner Shinsu's question, you know, that's why we wanted to bring this up because we didn't want you to be unaware of these facts.

Do you have a question I have a question following up also on the construction time limits, the resolution and also the case report refers to the pier. It pins the permit issuance date. It says if a permit is issued after the main projects done would then follow under a different construction time limit, I mean if they're applying now for the permit and it doesn't get issued. Prior to the main project being finished. would the peer have its own construction time limit?

If the current building permit is finaled and complete?

The conditions are, and the staff report says, should the building permit for the peer be issued prior to the completion of the existing project? The existing construction time limit applies to the peer. So I guess I'm wondering if for some reason, the permit for the peer is issued after the completion of the main project. You know, if it takes them so long to get through all the other agencies, would the peer have its own construction time limit then in that case? Okay.

Yes, it would. It would be a new, yeah. Okay. Yes.

On the timeline, one more thing. Sammy said you are working with the applicant on the completion date of this project. Do you have a date now from them? what is the completion date of the current project?

Well, yeah, nothing in concrete, but we did during this review of this project, the contractor's here and he's indicated two more years. We don't have anything in a contract, but I'm sure he'll answer questions about that as well. If you have any.

I have questions. Yes, but not about the timeline. If we are done with the timeline, I want to move on. So I have a question about the report. Let me get the report. The report that Merkle and Associates provided does not belong to this project. I wonder what it is. It is about 46 Cliff Road. This project is 43 Cliff Road. And the explanation at the beginning is that this report is provided because the applicant at 46 Cliff Road had a notice of violation. And because of that violation, they needed to do this report and monitoring and mitigation and all that. So am I missing something here?

No, you're not missing something. The report that we received, it showed the eelgrass were present in the vicinity where the pier is as well. And actually, Sean can speak on this more. So the fact that there was eelgrass present required the environmental review. But you're right, it is for 46 and not 43. But it's in the surrounding area where the pier was.

And I think their scope of work was to mitigate that notice of violation, not really a new permit and whatever report we requiring. To me, this is not a complete application, but let me know if basically we are missing a report for this project.

Yeah, I think commissioner, you know, to the extent that the applicant or the applicant's consultant is available. I think you should certainly feel free to probe to what extent this report for initially for 46 cliff is applicable to 43 cliff. These obviously that is a determination this planning commission would need to be comfortable with to approve this project.

Thank you.

Are there any other questions? Okay, would the applicant like to make a presentation?

Good evening. My name is Mark Swanson. Thank you commissioners for your time. Thanks for your time visiting the site. Thank you staff. Thanks to members of the public. And I just wanted, Sammy did a fine job talking about the details of the project. And so I'm going to try to not duplicate what he said. We kind of have similar presentations. There's sort of only so much to talk about with an old tired pier. So this pier is about 50 years old. And as you've probably seen, it's in severe disrepair. And when we have storm surges like we just did this past winter, You know, I go to bed at night wondering if it's going to be there the next morning. So I do feel that this is an important matter to take care of the peer. And I think this is good material conversation about, well, what happens if you do something with a month left on a CTL? And that's a great question because what does happen if a peer that looks good washes away and you have to get a new permit and you have a month left on your CTL, but it takes three years to get approvals from all the agencies and the building permit. So I think those are good questions to have. We've been spending years and years to work through this process to get this peer approved. And as Sammy mentioned, the background is the current peer is 88 feet long. We're gonna stay at that length, but we're reducing the piles in half, and we're reducing the width in half, and we're reducing the head size about 15%. And so to speak to the approval process, Sean, our environmental consultant, is here as well. And please, he has a wealth of information about eelgrass and fish and all kinds of good things like that. I'm the builder, and I can speak quite a bit to any of the construction questions, the CTL 43, anything you'd like to talk about regarding that. But there are multiple agencies involved with getting a pier or anything in the water approved, and essentially anything 100 feet above the mean, mean high water mark. The one we always talk about and hear a lot about is BCDC, and they're sort of the – And I might misspeak and Sean could correct me, but they're kind of the umbrella of all this. And Marin County or whoever kind of owns the land is also involved. And so Marin County owns water land out in Richardson Bay. And so does the state off the like the Gans properties, the lava house that's state owned. So there's all these sort of different agencies and the county requires a lease. And we have that. So we've we've got an approved lease with the county. The Regional Water Quality Control Board has issued their permit. They're what they call an overwater structures permit. And on some water projects, they might be the last one to issue their permit. You just never know. It's kind of anyone's guess. Um, the army Corps of engineers is another agency involved in this project. And they're generally good with things like this, but they consult with the national Marine fisheries and the national Marine fisheries has asked for a biological assessment, uh, which is unusual, it's not common, but again, you get to pick your battles. And so Sean and his team have taken care of this atypical request and we're addressing it. And they had some means and methods questions that we've resolved and think they're gonna be happy with. So once they get that back, they have, It could be a month, it could be six months for them to turn that around. Unfortunately, this national agency, the Marine Fisheries is one of the agencies head hardest with the layoffs in the federal government. Their staffing has been greatly reduced. So we're a bit at their mercy, but if you get on the right person on the phone and you have a relationship, you can typically move things along a little bit quicker, but there's no guarantees. bcdc would be the next agency that issues sort of the permit that we attach to the building permit and they're essentially approved um although they need all the other agencies to be approved so they kind of tie back to two different uh agencies again the corps of engineers who's waiting on marine fisheries and the city approval so the planning commission approval and then the um the Army Corps of Engineers approval via the fisheries approval would be next on that. So let's say we got approval tonight, that would be one check for them for BCDC, but then we'd still be on this three to six month timeline for fisheries. And BCDC would not issue the permit Or we couldn't begin the work until the building department issued the permit. And if we were to receive approval here, I would then get all of our structural drawings together, submit them to Brian. And I would guess Brian's two to three months out on issuing a permit for this. The reason I bring this up is because we also have limited windows of opportunity to build in the water. The current window right now is June, I want to say June 30th, is June 15th to October 30th. And sometimes they give you permission to go to November 30th. So if we were to get all this dialed in by like the 1st of September, I would probably demolish the existing pier. That way we don't go through the winter worrying about the pier washing away and being a hazard and getting caught up on West Shore Road. If we don't get that, then we wait for the following building window, June 15, would be our next opportunity. We'd do demo and rebuild of the pier. That process is like 12 to 14 weeks. So I'm confident that we could do that within our window. I also am confident that we would do that within the current timeline of finishing 43 cliff, which I currently have as, um, the November of 27. So it's not quite two years, anything could happen with weather and unforeseen conditions, but, you know, so those two things would sort of be within the same envelope. Um, I think that for everybody, performing the work now instead of waiting until the 43 is finished, and then the CTL stops, and then applying for a new building permit, I think that that's sort of a backwards way to approach this, assuming we get all the permits. The peers are hazard. And when you're overlapping manpower and supervision and logistics and general conditions, things just are less obtrusive and they go quicker and it shortens the duration and timeline. I will also say that, you know, I... I get, and I'm very sensitive to projects taking a long time and neighbors, and we do our best to accommodate neighbors. I don't know any neighbors, contractors, homeowners, or anybody that really likes a project to take longer than it needs to take. I think we're all really on the same page. We just want to get our jobs done and move on to the next one. And thank you for the time that you let me stay up here. I think I went over a little bit. Appreciate that.

Okay, I think there are probably gonna be some questions from the commission.

Okay, I have many questions. Let's start by easy one. The structural engineers drawing says that the survey that is shown on their drawing is done in 2019. Is that a mistake or was it done in 2019? The eelgrass.

So I'm going to bring Sean in, because that would be an environmental-related question. OK. And I think he can best explain.

So let me ask you then the other questions that has nothing to do. Start with the hard one first. Yeah, no, I'll ask the questions. The hard ones are about the environmental and all that. But the one that is related maybe to the pier itself, The aluminum on the railing, are they going to be painted?

No, we leave that natural stainless steel, natural aluminum, similar to the other piers that are nearby.

It is steel or it is aluminum?

Stainless steel and aluminum.

So they are all stainless steel remains and stainless steel?

Correct. No paint? No paint. Yeah, stainless doesn't take paint well.

Yeah, the structural drawing says I'll expose the steel to be coated with the paint. It explains what the paint is, and it says to be covered by the paint.

I don't know if that's referring to the pilings, but if it's referring to the railings, that's just an error. The railings are going to be as shown in the image and noted. on the application.

So it says all exposed steel. So railing, I guess, would remain. What about the steel? All exposed steel that is a structural member, and they want it to be painted. Correct. What color paint is that? That would be black. OK. And then. Then going back to the timeline, you talked a lot about that applying for this permit takes a long time. So you started the project with a timeline of two years. You are one and a half years beyond that, three and a half years later. Why do you apply now?

Oh, I applied years ago, probably three, if not more years ago. It's a long process of working through the different agencies.

So which ones you have approval from the agencies you apply?

Which ones do I have approval from? So we have approval from the... We have approval from the Corps. Well, that's pending the National Marine Fisheries. We have approval from the County of Marin. We have approval from BCDC, except they just need the Corps of Engineers to give them their approval, and they need the Planning Commission to approve. And we have approval from the Regional Water Quality Control Board.

So you just have one approval then because the rest are pending others.

No, we have the county approval and the regional water quality control board approval. And the other two of the other three would approve what they're waiting on the marine fisheries.

Got it. Thank you.

You're welcome.

Yeah, the rest would be for me from the report.

Thanks. I'm Sean Avant. I'm with Sunset Ecological Solutions. I've been working on the 43 cliff project, not throughout the whole project, but for most of it. So I can answer a lot of your environmental questions and some of even your design questions, if you have them, because I have the history on the project there. Going back to the permits, I'll Thank you. Going back to the permits, I'll say that we also do have a BCDC permit in hand. It just has a condition that says we also need the Army Corps permit for it to be valid.

Okay, so to start, as I mentioned, the structural engineer drawing says that the report is from 2019. Is that a mistake or the report is from 2019? What report do they refer to?

I am not sure what text you're referring to on those engineering plans.

Yes, on the structural engineer drawing, it says shaded area. Oh, for the eelgrass. Yes, for the eelgrass.

Yes, that's a baywide eelgrass survey that the engineer put on the plans that was available in 2019. The other report that you held up earlier that was also for 46 cliff shows the eelgrass at the time of the application.

Right. So the 2019 is not valid anymore, as we know. It needs to be one year old, two, three years old. But the new one, whatever, which we don't even see it, but structural engineering has had it and put it there. The report that we have in hand, as I mentioned, does not belong to this project. It is because of a notice of violation. Can you explain that violation, what it is, and how is that going to mitigate, and how is that related to this project?

Sure, so another biological consultant was on the project prior to my being on the project way back when for 46 cliff. And that report was generated for the 46 cliff project, but it also included all adjacent areas. Inside those adjacent areas was also 43 cliff. So he captured the data that anyone that would have created a survey would have done for 43. He just didn't write a separate report for that.

So couldn't you have them to generate a new report for this project, which I think we should ask for it. They have all the data. They can provide a report for this project.

Yeah, we can talk to that consultant at that time. Yeah. It'll show the same exact data. It'll just be a separate report titled 43 instead of 46.

And how are they going to mitigate the disturbed eelgrass, or can you explain how? For 43 Cliff? Yes.

They don't anticipate any disturbances. Part of the National Marine Fisheries Service permit or their consultation with the US Army Corps of Engineers is that you must follow the CEMP, which is the California Eelgrass Mitigation Program. And we have proposed to do that. The way to do that is within 60 days of starting the project, you need to do another eelgrass survey to document the baseline conditions prior to construction. After the project is finished, you need to again do another survey within 30 days after the project to determine what impacts the project had on the eelgrass. From that differentiation, you can determine if eelgrass was affected and how much, and then mitigation will be imposed.

Are there any mitigation required for 46? The report? Yes.

Um, so 46 cliff road was a project that was approved, um, started, I think in like 2015 and it was before my time when I began work on that project, the building permit was, uh, just issued in the set of plans and drawings and permits were issued and a condition that the planning commission and, um, maybe staff, I don't want to speak out of line, put on that project. And that was agreed to is that project would be completely built completely from the water. And that was a real firm condition that they had. So I lined everything up. We had a BCDC permit. We had everything appeared to be in order in the drawings. And I started building that house from the water. It was the only way that was allowed to be built. And one agency came up and said, hey, we actually don't have the right permit for you to build from the water. So then that became back to the planning commission in the city and it kind of created some complexities and we came up with all new plans and how to build the house from the land and not the water because we weren't allowed to build from the water. But while building from the water, one of the barges had prop thrusts. And in their prop thrust, it affected some of the eelgrass. And so we agreed to plant, restore the eelgrass, but we've restored it by multiple factors. And we planted some out in the Richardson Bay. We restored it in the general area in front of the house. And I'm happy to report it's growing like real happy eelgrass. The person that's been doing surveys of this, and the next surveys, I think it finishes next year, the surveys that we had to do. We were doing five years of surveys. He's side scanning and scanning all of this area. And he's actually doing all the restoration out in Richardson Bay where the anchor outs were. So while I mean, I could we could request maybe a note from him as a condition of approval saying, hey, Keith, can you note that your work is also applicable to 43 Cliff? But it's it's such an umbrella of work he's done all over the general area. That's why I understand why you're saying 46. But the consultant work and the scanning he did was all in that general area. And that's why we have that big overlay map of the work. Did that answer your question about that?

Yes, thank you.

You're welcome.

So can I, if nobody else has any question, can I ask another question from the applicant?

So can you address the delay on the project? Explain a little bit how we received a letter from one neighbor that is very concerned about the time that this project took, the condition of the road that is deteriorated, and another extension of two years, which would, I think, brings the total penalty on the project about beyond a million. So can you address that and

Well, I am happy to provide a more detailed list of reasons of why projects like this take a long time. A couple of examples are we had some health issues on the project. We encountered a real lot of imported gravel and fill in the whole rear of the property that had to be removed and offhauled before we could have a substantial foundation for the pool. Houses now, they're much more intensive to build than they used to be even a few years ago with the new energy codes. For instance, you have to insulate the inside of even headers now in homes to meet the environmental requirements. So instead of it being sort of one step after the other, you find yourself very often doing incremental steps, insulating one side of a sure wall and then coming back and three shearing the other side, and then before you can take the next step. So houses have just become much more complicated and complex. We're dealing with two different structures, one down at the water side, one up above. And, you know, we have limited access. And, you know, we had a heavy winter with rains at different times. So there's just a number of reasons. And I have others as well sent over.

And it sounds like you think you're maybe a little more than halfway through the project and it's expected to go on for several more years. I heard staff say something along those lines.

Well, I'd say inside of two years at this point, that's why November of 2027. So that would be a year and a half range, but, um, So I would say I'm more than halfway through the project, for sure.

OK. And this may be a question for staff. Am I correct in assuming Cliff Road is a private road in the vicinity of these houses? It's not a public Belvedere Street?

That is correct.

OK.

And I have offered to work with the neighbor on, on the area in front of the property. We've got dialogue right now and I've committed to some things and he also finished his project and he had, has a responsibility to maintain some of that as well. And I just don't know the details and he's offered to, so we are talking. I'm not, we don't have a perfect solution yet, but we are.

Well, I'm, I'm happy to hear that. And I know private roads are complicated. Yeah.

things to Yeah, you know, if you go to two houses down the roads even worse. But I'm not I'm not interested in having a conflict. I'm interested in a resolution and we're working towards that.

Yeah, thank you. Other questions?

I just want to follow up also, maybe it's a duplicate question, but again, about the letter that we received from the neighbor about construction equipment being stored or just sitting in the roadway, that sort of thing. The resolutions that we have in front of us also have conditions about the construction management program, which I'm sure the original project has the same conditions. And so just want to, like moving forward, Just kind of understand from your point of view how you expect that will be addressed, if it would be addressed differently.

Sure. Well, I'm happy to report that we just removed two pieces of equipment that we were using on the property. And so they're off the site now. And we have two small machines that... that can fit in on the footprint. We've cleaned out in front of the house because we had a lot of material staging there. And so we don't anticipate storing anything in the street over the longterm, but sometimes if we have to use a forklift or something, we bring it in the night before the day before, and then we use it the following day to unload and off all things. And then we take it off the property. So there's, you know, we, we are mindful of, um, what the building department has asked us to do, which is leave at least 10 feet of pathway. And we're also mindful of the fact that neighbors don't want to look at construction equipment. The majority of the pier will be built from the water. So I don't think those two things overlap. but I understand at the same time the sensitivity of the things in the road.

Okay.

Yeah.

And I have a second question. A smaller detail on the plans. I noticed the square footage that's described on these plans. It's measured from the... HAB-Masyn Moyer- Bayside of the mean high water line, but the overall footprint of the peers slightly larger because there's a portion of the pier on the other side of that line. HAB-Masyn Moyer- I just wonder why and just for informational purposes, why is it measured oh thanks, then you can answer. HAB-Terry Palmos- Okay, what's wrong.

HAB-Masyn Moyer- got me.

The reason that the engineer measured it from the mean high water line is the BCDC jurisdictional line. That's the delineation between the shoreline band and the bay. And we have to separate those two areas for BCDC and that's why they did that.

Okay, thank you.

Okay, any further questions? No, okay. Are there any comments from members of the public on this item? Becca, do you see anyone online?

I have Ben Jacoby online and he's joining the webinar as a panelist.

Hey everybody, can you hear me okay?

Yes, we can.

Great. I guess a couple things. I thought I heard the applicant say that they're going to construct the majority of the pier from the water, but the application I read said it will be constructed in totality from the water. So I'm not sure if you're able to answer questions real time or if you would just like me to answer the series of my questions. or to provide the series of my questions?

You can just continue because...

Okay, fair enough. So were, and I should back up, were the neighbors at 30 Cliff Road that... You know, for better or worse, we're right across the street. We started our project construction in 2022. We finished our house in November of 24. We got our certificate of occupancy, 46 cliff. which is owned by the same individuals as 43 Cliff has been under construction since 2019 and it's still not done. And our experience with that project and it seems like with this project is there's just a series of requests which end up extending the construction timeline and then we're the ones that suffer for it because we have to deal with this every day, right, except fortunately the weekends. So I think with 46 Cliff, they added an ADU. They tore out their parking pad. They put in a new parking. They widened the road, which we own down there. It is a private road. They widened the road without our permission, unfortunately, the portion of the road that we own. So it hasn't been... um you know i guess i could safely say it hasn't been a seamless relationship uh unfortunately uh with with the construction crew um with 43 cliff um you know the pier has been a hazard since 2019 so i think to say that they need seemingly for an incomplete application as i think some of the council members noted To need the planning permission now and to have the reason that the existing pier is a hazard seems to be a little bit of a misstatement because it's been in its present condition for a very long time. And really, I think what the issue that we have is it just seems like this project is going to go on forever. I mean, I think day before yesterday, they had trucks down here and they're still doing civil work and pulling dirt out. and there's just no um there's there's really no oversight or no guard rails to prevent them to keep on going on forever i think this the ctl rules you know theoretically pose a limit But I think all of our experience with that is once you get to the end of a project like this and you're facing the kind of penalties that they face, I mean, do those get paid or not? So I'm not sure. you know, what to think of a project that's already, you know, two years over or 18 months over its two-year limit, asking for a permit modification to embark on another project. And here, you know, we as the neighbors are kind of holding the bag in terms of the nuisance. I think my wife, Debra, has some questions she wanted to note as well.

Yeah, I wasn't. Hi. I wasn't clear, again, going along with why you're showing us the picture of the 46 pier area instead of the 43 pier area. It's just not really clear. And I'm also wondering, do you have approvals from the water board in hand that you can show us? the board and BCDC or is that not real? Is it pending? I actually would like to see evidence of those approvals before Belvedere approves this. I also feel like the road, there's just dust on our road that just filters. We have a brand new house and it's a mess because of this project. And it's, I'm sorry, it's a private road, but I feel like it's just every day, it's so dusty. And I've asked them to please just pave a little strip like where the trucks park, where there's just, there's no road left. And it's so dirty. And we have to live next to this. I live here. And it's been years. And I just, you know, cars come up and down and trucks. And yes, we did have... you know, our project. And, you know, that was, that was a year and a half ago and it's, but the dust from this project right now is just overwhelming. Okay. I just have a couple of practical questions about the pier. If you could be so kind, there's a flashing light at the end and we just want to know which side the flashing light's going to be on.

I think, I think we have a question as to whether there will be a flashing red light at the end of the peer there presently is not one. And then one other question or comment I wanted to make in part in response to Mark is he said there's not construction materials stored in the road. True, there's not equipment anymore. There have been two enormous olive trees which take up the roadway that have been there for over two years. These are giant olive trees in boxes in the road on the side. And it doesn't seem like an issue in a vacuum But what happens is all of the subcontractors come down and they stack all of their trucks along the side of the road because they won't park elsewhere.

It certainly is there. Yeah, I'm just going to I want to point out that there is a time limit on these comments. And so I've granted each of you three minutes. So I think if you have a summary, if you want to make a quick statement to wrap it up, we appreciate your comments.

Okay, for me, I really want the road to be paved, even if it's not perfectly paved, just where there's dirt, there's loose dirt and rubble to get out of my driveway to go to work or to go to the store every day. I'd really like it if that could be paved. And then I just want to make sure that the pier is the same size as they are

stating and that it's not larger or longer or anything and that the pier is fully constructed from the water and no construction materials for construction of the pier will be stored in the street okay very good thank you i appreciate your comments thank you appreciate it so so i um

So I heard a couple of questions out of there that I would like answered. One is clarification on construction by land or sea.

I didn't hear you.

Did you say you asked me if it's how are you going to construct the pier by sea, which obviously has some of the environmental considerations that my colleague brought up, versus by land, which has more neighbor considerations?

Sure. Great question. So the pier is just about completely constructed on the water side. There's no real other way to do it. When I was saying the majority of it will be constructed by the water side, it's 95%. All I'm saying is if we needed some cables or somebody needed to carry paint down and the barge is gone, we needed to... A couple boards are coming up or we needed to bring some boards down there, we would do that. There's no intention of having any equipment on the property side. It's just, you know, I just don't want to get into some situation where, you know, I said it would be 100% from the water. However, you know, we've got to touch up, fine tune, do things like that.

And the red light flashing, not flashing?

I'm not aware of the red light, to be honest with you.

I don't know if any on that side have flashing.

Yeah. Toot Cliff may have had that. I don't know. I'm not certain about that. That's an image that's part of the presentation, but I'm not aware of. That might be a thing that the Coast Guard requires if you go a certain distance out. But I have no knowledge of the light. unless I've overlooked it. We can all look at the drawing. It wouldn't be any different than what's on the drawing site.

I don't know about that. Do you, John?

No.

But to be clear, the only reason you would have one is if it were required.

Yeah, navigation age or something. Absolutely. Yeah, we have no interest in putting a light out on the end of the pier. Thank you.

I have a question also. Sure. Following up, how about the demolition of the existing... pier, would that also be from the water? Can you describe that?

Yeah. So we bring in a barge with a machine, a crane excavator type grapple on it, and it pulls out the pilings and everything gets loaded on the barge and then goes away with the barge. Yes.

One more question for me. Do you acknowledge the penalty that you owe to the city that they all talk about?

I absolutely acknowledge there's a construction time limit penalty on the project.

Okay. If we are done with questions. Thank you. Thank you. I'll close the public hearing and bring this matter back to the commission for discussion. Don, you sort of live on that side of the island. Don, you start.

I'm not going to have any problem making the findings tonight. Obviously, as I see it, the footprint of the pier is going to be smaller than what's there. You're going to be letting light through. You're going to be... using fewer pilings. I think from that sense, we're not talking about a bigger dock or even a replacement dock. We're talking about a somewhat less invasive dock than is there now. So I don't have a problem with that. Regarding the eelgrass, having gone down that road with a consultant for a while for our own dock, I can just say that that's beyond, I think, what I'm prepared to opine on. I know the kind of alphabet soup of jurisdictions that actually have to sign off on this. I figure we're sort of the least of that. But from a design review standpoint, I'll have no problem making the finding. That said, about the construction, and clearly you have a neighbor who would like some more attention paid to their needs. and their right to have the project be less intrusive, I guess, than they feel that it is right now. I don't know exactly what our role is to talk about differences of opinion as they pertain to a private road and how much of that is something we talk about. and have the standing to talk about or not at all. I'll be curious to hear what my colleagues say. Other than it's, you know, I assume that everybody's primary incentive that this project be over as quickly as possible and that everybody is interested in having that happen for maybe slightly different reasons. I assume the sheer fact that the overall incentive is the same for everybody. we'll make sure that this happens as quick as humanly possible. So with that, I can make the findings. Thank you.

Thank you for all the extensive information tonight. I think one of my bigger concerns is the impact that project is having on all the neighbors and then also specifically the construction management plan. As I said earlier, I know that it's incorporated as a condition of approval. And I'm just not sure how it could be improved moving forward. But given that, as far as the environmental concerns of the eelgrass procedurally, I think that it's quite extensive, the requirements from the other agencies. So it sounds like that will be all the requirements will be met with that, like the pre-construction survey and mitigation monitoring, that sort of thing. I do have just another fine detail. I wanted to, for the resolutions, just that we're being asked to approve a pier of 450 square feet, but there is the additional square footage on the other side of the mean high water line. Yeah. And so just want to talk about just modifying some of the language in the resolutions to reflect that, you know, wherever it says the project is a 450 square foot pier as maybe adding language, it says as measured from the mean high water line. It's just so specific in the resolution. So that's all. Thank you.

Great.

So for me, the... original intent of demolishing a pier that doesn't work and building a new one on a site that is valuable for having that dock is absolutely the way to go. We don't need a dock that is broken and we want that property that is for enjoyment of that dock to have that dock. However, I don't think the applicant did their due diligence right. The report does not belong to this project. And I would say, I don't know if we could potentially approve in the condition that they provide the appropriate report, meaning the Merkle and Associates provide a report for 43 Cliff Road and note whatever they think has to happen there. I'm not a specialist. If they think it is the same, they copy the same thing. If they think it needs to be other things, they would include that. That would be one condition, I would say. And another condition, I wonder, could be that the applicant who acknowledged that they owe the penalty, they pay the penalty to date to the city of Belvedere. And then the remaining of it would be assessed at a later time when the project will be done. I think that is a way of having or you know, just these extension of the time are not meaningless. And then the neighbors who have to deal with, you know, the hardship of a construction see that this is a real thing. And if you take four years extra on a two-year construction, you pay the penalties. So I would say, yeah, And then I don't think on a, and you mentioned that you are working with the neighbor as a, to do the road. I don't know if that is something that we can, are you willing to do the road for them? Is that in the works?

Yeah.

Hello. I actually, I need to reopen the public hearing if you're going to speak. So I will reopen the public hearing if you'd like to answer that question.

Could that be a condition?

Well, I don't know how you condition something like that, but I'm here to tell you that I'm working with the neighbor on addressing the road. And I could... I have correspondence I could show you that, you know, would provide reassurance, but, and I will, I have a reputation to protect and it's been pretty good for a long time since 2000 around here. So yeah.

Maybe I'll ask the city attorney, is that something that we could condition?

I'm sorry. I'm trying to keep track of the condition. So is the condition about private road?

The private road to be repaved. They are willing to do it. Can that be a condition of the approval?

No, I'm not willing to repave the road until the project's done, but I'm willing to work with the neighbor. And I'm in process of working with the neighbor on getting the road to a place where everybody's comfortable. And I've already told the neighbor I would do that. And as I mentioned, he also has some ownership of that road. And so we're working towards a resolution. And what is that that you are willing to do? There's a strip against the retaining wall where people park that we're going to put concrete down, like we've done in other areas. And that'll last until the end of the project. And then there's some cracked, broken areas out in front of his house that either he or I are going to address. But as I mentioned, on his project, he had a road deposit. And I just don't know where that stands with the building department.

Thank you, Mark.

Yes, you're welcome.

I'll close the public hearing again now.

So if I could respond to the commissioner's questions. So the conditions that the planning commission can impose on this project have to be related to the project as it's before you. So for example, I don't know if others are going to raise this issue, uh, but the applicant's representative did raise, I think conditions that he would be amenable to such as demolition of the pier needs to occur from the water, uh, Any construction equipment used to construct the pier would also be from the water. Things along those lines, the light issue that was mentioned by Commissioner Shinsky in public comment, those also relate to the pier. So those would be appropriate conditions. But the condition at the end of the day needs to relate to the project before the Planning Commission tonight.

How about the penalty payment? Is that related to the project?

I guess I'm not quite clear on what we're asking for.

That they pay their penalty to date, meaning from the date that their permit expired to today. How many days is that? How much they need to pay for that?

I don't even know what that amount is, Commissioner.

Is that possible to be calculated and-

Is it possible now to calculate it? Is that what you're asking?

No, no, not the amount that they would pay from the expiration of the building permit to date that we are approving this, because it is conditioned to it to be paid by today. So it will be calculated at a later time how much it is, and they will pay, and then they would apply for a building permit for this. We can do that calculation.

Right.

You know, again, the conditions need to relate to the project that are before us. So maybe a slight modification would be, you know, the, and I believe the applicant said this, that he does not believe that this additional scope will lengthen the time for the project. And certainly Mr. Swanson can respond if that's not accurate.

But there is no time for the project. The time is already expired. It is the time that he wants.

creates on his own there is no really time limit right but perhaps an acknowledgement that he will not challenge any additional penalties imposed attributable to any additional time required by this project that he's seeking approval of tonight you know again something tied to this project as opposed to things that are not before you tonight but i don't know if mr swanson wants to respond to that subject of the chair's permission well um

I think I'd like to have a chance to speak, if I may. This is a complicated project. That's where I want to start. We've seen several DOC projects come through. I think it's a pretty rigorous process between the city and the state and all the jurisdictions. And what I gather from this is that there's going to be ongoing monitoring. There's going to be new overlays for the eelgrass. I do feel like there's a lot of safeguards in place. So everything I've read in the reports, I'm satisfied with. I think if we wanted to add a condition that the eelgrass report be modified to specifically reflect the address of the site. I think I'm fine with that. And it's probably a relatively easy change to make. As far as design review, you know, obviously the new dock is going to be a big improvement on the derelict thing that is there. And so again, You know, I'm, for one, I'm pretty happy to see applicants come through who are willing to go through the process and upgrade these structures that are out over the water. It needs to be done. And the old ones cleared away for a variety of reasons. So for those reasons, among other, I'll be in favor of granting design resolutions. design review and demolition. I personally feel like I want to strongly encourage the applicant to work with the neighbors I think it's outside of the purview for us to get involved in, in a private road as this application stands, maybe if the road was part of the application, we could have some input on that. We don't have any drawings of the road. We don't have knowledge of the specific conditions. All we know is that there is some existing tensions, you know, between the neighboring properties. So, um, I think under the circumstances, the position that the planning commission can take, it's just to encourage the neighbors to work sincerely together and resolve their issues. That's kind of where I would leave the road. And personally, as far as the CTL goes, I think it's a rather technical issue and we're dealing already with multiple versions of the code because this is sort of grandfathered under a previous version, I would prefer to leave it in the hands of the staff. And I don't really think the CTL is so much the purview of the planning commission. So that's where I would be on this.

Chair Seidel, I'm sorry to interrupt. I did get a message from Ben Jacoby since the public hearing was opened. He would also like an opportunity to speak. He wants to speak again? Yes, he does.

Okay. I'll reopen the public hearing. Mr. Jacoby.

I'm promoting him to panelist right now.

Okay.

Hi, everybody. Can you hear me okay? Okay. Can you hear me? Yes, we can. Okay, great. Thank you. Yeah, so just a couple quick things. So the question of the road, so just to be clear, the road that we're talking about is owned by 43 Cliff. So the road is part of the applicant's real property, and therefore it's subject to property whatever permit that applicant has in front of you of which today essentially they're asking for a modification. And so when we see, I'm just a business person, but when someone comes to me for a modification for a deal that they already cut, where they already agreed to a two-year limit, it gives rise to the opportunity to see how they're performing and behaving otherwise in the deal. And so we're demonstrating to you here that the road is an issue. Mark has said to me specifically that he does not want to repave the road until his project is done. which makes sense, right? Because he doesn't want to spend money now only to have to redo it later when the home is put up for sale. Again, these are homes that will be sold most likely whenever they're done. So I think you do have jurisdiction of the road. I think the fact that they're asking essentially for a permit modification gives rise for you to impose whatever conditions you deem necessary based on their behavior to date. So we would like you to reconsider the position on the road and make them do something today and not make us wait for another two years before the road could be fixed to an acceptable condition. Thank you.

Thank you. I will close the public hearing again. So is there any further comment or discussion from the commission before we think about making motions on this project? Anybody have? Okay. Would anybody like to take a stab at making a motion?

I can start the motion. Do you normally make a motion like one resolution at a time? Okay, yeah. So I'll start. The first motion is, let's see. So motion one is to adopt the resolution approving the initial study mitigated negative declaration for the proposed project at 43 Cliff Road.

Second. All in favor.

Isn't this the one that we are conditioning to provide a new?

Yeah, let's talk about which one.

Because this is, it says approving the initial study for the project at 43, which we don't even have.

so uh i think this is probably maybe we need to ask staff so i believe the suggestion here is that it should be conditioned that the eelgrass report be modified to reflect the actual address of the project

Right, we can do that.

And is this the motion to do it on? Yes, that's correct. Does that seem right to you, Aslee?

Yes.

Okay. All right, thank you, Chair. Okay, so we have a motion.

I'll second that with the amendment to the motion. Okay, all in favor? Aye.

Okay, and then the second motion. is to adopt the resolution granting design review to construct a new pier at 43 Cliff Road. It refers to attachment to, and then maybe we need to discuss if there's any... Did you want to add a...

condition related to as measured from the area reflects the measurement from the mean high tide line?

Yeah, and I'm looking at the resolution, the draft resolution in our commission packet. I see two references to the 450 square foot. So just clarify that it's a 450 square foot pier as measured from the mean high water line.

Yeah, and I think that's certainly a fair comment. I'm not sure if it would be really conditioned. We just need to update the language of the resolution. There you go. To clarify that issue. Thank you, Commissioner.

Is there a second? Second. All in favor? Aye. Aye.

And the third motion is to adopt the resolution granting demolition permit to demolish the existing 712 square foot pier at 43 cliff road. Second. I.

Okay, thank you everyone. The meeting is adjourned.

I have one other thing. Oh, sorry. The meeting is not adjourned. We didn't adopt. Do we adopt the draft minutes from the April meeting?

It was part of the consent calendar, I believe.

Okay. Thank you.