HomeMy WebLinkAbout1448
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RESOLUTION 1448
A RESOLUTION OF THE PLANNING COMMISSION OF THE
CITY OF ARCADIA, CALIFORNIA, DENYING AN APPEAL AND
SUSTAINING THE SANTA ANITA VILLAGE HOMEOWNERS
ASSOCIATION'S DENIAL OF A PROPOSED TWO-STORY
DWELLING WITH AITACHED GARAGE AT 717 CORTEZ
ROAD (MP 90-013)
WHEREAS, on September 25, 1990, an appeal of the Santa Anita Village
Architectural Review Board's denial of a two-story, 4,077:t square foot dwelling with
an attached 784:t square foot garage on property located at 717 Cortez Road (MP 90-
0013), was filed by Robert Ho, architect, on behalf of David Jiann-Shiun Wu,
property owner,
WHEREAS, on November 13, 1990 the Planning Commission heard the
appeal; and
WHEREAS, as part of the record of this hearing the Planning Commission
reviewed and considered:
a, The staff report and related attachments including the Santa Anita Village
Architectural Review Board's findings and actions,
b, Written communications submitted by the Appellant,
c, All oral presentations and testimony made during the public hearing on
November 13, 1990
NOW, THEREFORE, THE PLANNING COMMISSION OF THE CITY OF
ARCADIA HEREBY RESOLVES AS FOLLOWS:
Section 1. This Commission finds that:
1. The proposed home is not in character with the neighborhood nor is it
compatible or harmonious with other houses within the area. The massiveness of
the proposed house is not in proportion with the narrow lot width, It was further
noted that the size, as an element of architecture, is incompatible with other homes
in the neighborhood,
Section 2, That for the foregoing reasons this Commission denies the appeal
and sustains the Santa Anita Village Architectural Review Boards denial of the two
story home with attached garage,
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1448
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Section 3. The decision, findings and conditions contained in this Resolution reflect
the Commission's action of November 13, 1990 and the following vote:
A YES: Commissioners Amato, Oark Hedlund, Szany, Papay
NOES: None
Section 4, The Secretary shall certify to the adoption of this Resolution and
shall cause a copy to be forwarded to the City Council of the City of Arcadia.
I HEREBY CERTIFY that the foregoing Resolution was adopted at a regular
meeting of the Planning Commission held on the 27 day of November, 1990 by the
following vote:
AYES:
NOES:
Commissioners Amato, Clark Hedlund, Szany, Papay
None
C an
Panning Commission
ATTEST:
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Secretary, Planning Commission
City of Arcadia
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1448
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November 13,1990
TO: ARCADIA CITY PLANNING COMMISSION
FROM: PLANNING DEPARTMENT
DONNA L, BUTLER, ASSISTANT PLANNING DIRECTOR
SUBJECT: MP 90-013 - 717 CORTEZ ROAD
APPEAL OF THE SANTA ANITA VILLAGE HOMEOWNER
ASSOCIATION'S DENIAL
GENERAL INFO~ATION
APPLICANT:
Robert Ho, architect on behalf of David Jiann-Shiun Wu,
property owner
717 Cortez Road
LOCATION:
REQUEST:
The property owner has apPealed the Santa Anita Village
Architectural Review Board's denial of a proposed two-story,
4,077 square foot dwelling with a 784:1: square foot attached garage
Approximately 9,17o.t square feet
LOT AREA:
FRONTAGE:
65' on Cortez Road
EXISTING LAND USE & ZONING:
The subject property is vacant; zoned R-1 & D
SURROUNDING LAND USE & ZONING:
Properties to the north, south and east are developed with single-family
dwellings; zoned R.1 & D
Properties to the west are developed with apartments; zoned R.3
GENERAL PLAN DESIGNATION:
Single-family residential 0-6 du/ac
MP 90-013
November 13, 1990
Page 1
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BACKGROUND
On July 3,1990, the Santa Anita Village Homeowner's Association Architectural
Review Board denied plans for a two-story 4,133 square foot dwelling with an
attached SOOt square foot garage for the property at 717 Cortez Road. The applicant,
Robert Ho appealed the Homeowner Association's denial to the Planning
Commission.
The Planning Department after reviewing the proposed plans recommended denial
based upon the design of the house which included a two story portico which staff
felt was incompatible with the architectural style of the. homes in the area. On
August 14, 1990 the Planning Commission upheld the Santa Anita Village's denial
noting that: (1) the home was not in character with the neighborhood nor
compatible or harmonious with other homes; (2), that the house was not in
proportion and that the portico looked out of place and made the house look
massive; (3) that the portico was out of proportio~ with the house and did not
belong on the house; (4) that the lot was too narrow to accommodate the proposed
house and (5) that the front wall of the second story lineS up with the front wall of
the first floor adding to the bulky appearance of the front elevation. A resolution
setting forth the Planning Commission's action waS adopted on August 28" 1990.
'On August 31,1990 Mr. Ho appealed the Planning Commission's decision.
The City Council held a public hearing on this appeal on October 2, 1990. The City
Council denied the appeal and sustained the Planning Commission and the Santa
Anita Village Homeowners Association's denial of the proposed house, The
Council noted in Resolution 5551 adopted on October 16, 1990 that: (1) the portico is
incompatible with the architectural style of the homes generally in the area; there
are no homes within the area which have a portico this size and the portico tends to
emphasize the size of the building; (2) that the size, as an element of the
architecture, is incompatible at that particular location; and (3) the lot is substandard
in width (65'-0") and this house on this lot is too l~ge,
On August 22,1990 Mr. Ho submitted revised plans to the Santa Anita Village
Architectural Review Board. A public hearing was held on September 20 before the
Santa Anita Village ARB, at which time they denied the revised plans.
Mr. Ho appealed the ARB's decision on September 25.
In summary the Board noted that "The denial was based on the Board's concern that
the visual impact of this proposed home's mass would be overwhelming and not
harmonious with the immediate neighborhood or with the Village in general,"
"If the massiveness of this home could be reduced, the following comments deal
with specific architectural details that the Board felt would have to be changed:
MP 90-013
November 13, 1990
Page 2
1. The dormer (Alternate D) adds to the visual mass of the east elevation (front
. yard) and should not be included.
2. Side yard elevations (north and south) second floor windows for the master
bedroom, Bed #3 and Bed #4 should be high wall windows that would admit
light but not allow a view of north and south neighbor's yards. Bathroom
window on south elevation should be frost~ glass,
3. Master bedroom bay window should extend only 1'-6" instead of 2'.0" 90 as to
restrict the view of neighbor's yards from the side bay windows,
4, Overall the comment was made that the extension of the second floor of the
proposed house beyond the neighbor's into, the rear yard impacts the privacy
of both neighbors,
5, Change front entrance from a double door to a single door with sidelights and
the halfmoon window above so as to mitigate the "grand opulent entrance".
6. Concrete tile (CalShake type) color to be dafk earth tories.
7. Driveway to be flared so that at the curb it is the width of a single drive (12
feet) minimizing a concrete front yard and allowing for additional greenery,
. 8. AIC condensing unit (applicant indicated there would only be one unit)
would be located in rear yard against house and not closer than 5 feet from
the south property line. .
9, It was suggested that a landscape plan should be provided."
PROPOSAL AND ANALYSIS
The applicant's proposal is for a 4,077:1: square foot two-story house with an attached
784:1: square foot garage (two car garage with one tandem parking space), The side
yard setbacks are a minimum of 5'-0"+ for the first floor and a 11'-6" for the second
floor. The rear yard setback is 45:1:' and the front yard setback is 36:1: from the
property line (approximately 48:1:' from the curb line). The building is 25'-0" in
height, including the chimneys. The revised plans were submitted to the ARB on
August 22, prior to the effect date of the new setback and height requirements.
The applicant indicates that the total lot coverage is 34.3%. Code allows a maximum
lot coverage of 35% for two story homes.
Resolution 5286 sets forth the design overlay regulations, procedures and criteria for
the review of projects within the Santa Anita Village Homeowners Association (see
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MP 90-013
November 13, 1990
Page 3
attached resolution). Subsections 8 and 9 of the resolution set forth standards
regarding "exterior building materials" and "exterior building appearance".
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8. EXTERIOR BUILDING MATERIAlS. Materials used on the exterior of any
structure, including roofing, wall or fence greater than two (2) feet above the
lowest adjacent grade, shall be compatible with materials of other structures
on the same lot and with other structures in the neighborhood.
9. EXTERIOR BUILDING APPEARANCE. The appearance of any structure,
including roof, wall or fence shall be compatible with existing structures,
roofing, walls or fences in the neighborhood.
Subsection 18 of Section 3 of the resolution sets forth the following standards which
should be considered by the ARB and any body hearing an appeal from the decision
of the ARB:
a. Control of architectural appearance and use of materials shall not be so
exercised that individual initiative is stifled in creating the appearance of
external features of any particular structure, building, fence, wall or roof,
except to the extent necessary to establish contemporary accepted standards of
harmony and compatibility acceptable to the Board or the body hearing an
appal in order to avoid that which is excessive, garish, and substantially
unrelated to the neighborhood. (Pertains to Conditions Nos. 8 &t 9 of Section
3 of this Resolution. Exterior building materials and exterior building
. appearance).
b, Good architectural character is based upon the prindples of harmony and
proportion in the elements of the structure as well as the relationship of such
principals to adjacent structures and other structures in the neighborhood.
(Pertains to Conditions Nos, 8 &t 9 of Section 3 of this Resolution - Exterior
building materials and exterior building appearance).
c, A poorly designed external appearance of a structure, wall, fence, or roof, can
be detrimental to the use and enjoyment and value of adjacent property and
neighborhood. (Pertains to Conditions Nos. 8 &t 9 of Section 3 of this
Resolution - Exterior building materials and exterior building appearance).
d, A good relationship between adjacent front yards increases the value of
properties and makes the use of both properties more enjoyable. (Pertains to
Conditions Nos. 8 &t 9 of Section 3 of this Resolution - Exterior building
materials and exterior building appearance).
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MP 90-013
November 13. 1990
Page 4
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PLANNING DEPARTMENT COMMENTS
The Planning Department feels that the revised plans address many of the concerns
raised during the public hearings on the original plans.
The following is the Planning Department's resPonse to the ARB's findings and
action:
1. The dormer (Alternate D) adds to the visual mass of the east elevation (front
yard) and should not be included.
Planning Department: Although the dormer provides an architectural
feature which helps to break up the roof line, it also gives the appearance of a
third story, Staff would recommend that the dormer be deleted.
2, Side yard elevations (north and south) second floor wi1ldows for the master
bedroom, Bed #3 and Bed #4 should be high wall windows that would admit
light but not allow a view of north and sou!h neighbor's yards. Bathroom
window on south elevation should be frost~ glass,
Planning Department: First and most importantly, the building code requires
at least one bedroom window be of certain minimum dimensions and not
more than 44" above the floor to provide for emergency exiting. The
retention of visual privacy is not an issue which has been legislated by the
Council. Staff does not believe that such a requirement should be imposed
unless it is legislated and applied equally to all two story single-family
construction throughout the City.
3, Master bedroom bay window should extend only 1'-6" instead of 2'-0" so as to
restrict the view of neighbor's yards from the side bay windows.
4. Overall the comment was made that the extension of the second floor of the
proposed house beyond the neighbor's into the rear yard impacts the privacy
of both neighbors. '
Planning Department: In regards to 3 and 4 above, the Planning Department
does not believe this is a reasonable or equitable requirement, The retention
of visual privacy is not an issue which has been legislated by the Council.
Staff does not believe that such a require11lent should be imposed unless it is
legislated and applied equally to all two story single-family construction
throughout the City. Also, based upon Resolution 5286, staff does not believe
that this is an appropriate finding.
5, Change front entrance from a double door to a single door with sidelights and
the halfmoon window above so as to mitigate the "grand opulent entrance".
MP 90-013
November 13, 1990
Page 5
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Planning Department: The total height of the entry area including the
halfmoon window above the door is l1:l:'. Staff does not agree that a "grand
opulent entance" has been created by the applicant. Requiring a single door
with side windows would have little effect in changing the visual appearance
of the front entry.
6, Concrete tile (CalShake type) color to be dark earth tones.
Plannini Department: Staff concurs with, this recommendation.
7. Driveway to be flared so that at the curb it is the width of a single drive (12
feet) minimizing a concrete front yard and allowing for additional greenery.
Plannin~ Department: Staff feels that the driveway could be redesigned to
reduce the area within the front yard and thim flared to provide adequate
access from the garage.
8, AIC condensing unit (applicant indicated there would only be one unit)
would be located in rear yard against house and not closer than 5 feet from
the south property line.
Planning Department: Staff concurs with this recommendation,
9. It was suggested that a landscape plan shouid be provided.
Plannini Department: The resolution does not authorize the ARB to require
landscape plans and unless it is required to mitigate a specific design feature,
requiring a landscape plan is not appropriate.
The Planning Department believes that the revised plans are a significant
improvement. Eliminating the large portico significantly reduces the massive
appearance of the structure, and the overall building height of2S'-O" reduces the
scale of the building.
The Architectural Review Board's jurisdiction, and subsequent review of the
Board's decision by the City, applies to a review of the external building materials
and external building appearance (Section 3 (12) Resolution 5286 - page 5). Said
resolution requires compatibility "with materials and other structures on the same
lot and with other structures in the neighborhood".
The reviewing body (ARB, Planning Commission, City Council) is to determine
whether the external building materials and external appearance are compatible
with other structures in the neighborhood. :
MP 90-013
November 13, 1990
Page 6
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Approval or denial of the application should be based on the issue of compatibility
with reasons that explain the decision. It is these "reasons" which constitute the
"findings' upon which the decision is rendered. ,
Attached for your review and consideration are:'
1. Mr. Ho's letter of appeal dated September 25, 1990.
2, The Architectural Review Board's findings.
3, The Santa Anita Village's Design Resolution 5286.
4, The proposed plans including a diagram submitted by the applicant providing
a schematic section of the revision as compared to the original plan.
FINDINGS
The Planning Commission may:
1. Approve the appeal and reve.rse the Santa Anita Village Architectural
Review Board's denial, The Commission should direct staff to prepare the
appropriate resolution incorporating the Commission's decision lll).d findings
in support of that decision,
2, Deny the appeal and sustain the Santa Anita Village Architectural Review
Board's denial and direct staff to prepare the appropriate resolution
incorporating the Commission's decision and findings in support of that
decision,
If the Commission approves the appeal, the Planning Department would
recommend the following conditions of approval:
1. That the dormer on the roof be eliminated.
2, That the concrete tile roof be dark earth tone CalShake type material.
3, That the driveway at the curb be a maximum of 12'-0" in width and that the
driveway on the property be designed so as to minimize the concrete in the
front yard area, Approval of the design shan be subject to Planning
Department approval.
4. The the Ale condensing unites) be located in the rear yard area against the
house and not within the required setback areas.
MP 90-013
November 13, 1990
Page 7
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RO CORPORATION
Architecture, PIaming'Urba'l Design'
ARCHITECT
ROBERT I, H, HO. _
10"10 "0. lI..1 CA"I~ "0. ClOO..)
Sep.25, 1990
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Planning CI~mmis5ion
City of Arcadia
240 W, Huntington Dr,
Arcadia, CA. 91006
rormal Appeal
re Santa Anita Village ARB
,rile # 467, Wu Residence
717 Cortez Rd" Arcadia
Atten: Mr, Bill W01ard, Director and
Ms. Donna Butler, Assist,Director
City Planning Department
Dear Sirs/Madams:
Pur'suant t';:J the
received '3/25),
Commission on the
ARB's denial dated 9/20/90 (post-marked 9/22
this is a formal appeal to the Planning
subject matter, 'We are enclosing: ' ,
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1. Completed application form . co~e sections ~.
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2, 12 folded sets of drawings ,
3. A filing fee <:of $257, <:of which we are requesting a fulF"refund
due to the ARB's apparent bad-faith and/or its ignoring of the
City Attorney's 7-24-90 advice on the ARB's authority limits,
4. ARB denial letter and plans .,
5. Clear positive films (8,5"xll") of each sheet
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As the drawings shOW, this 'design p'roposal is a good faith
(re)submittal in.:c.rporating all appllcable comments of the ARB as
well as the Planning Commission re previous denials (rile #458
and Planning Cc.mm Res,#1441), In fact, we made adjustments in
gc,c.d faith beyond what was called for and/or required by
applicable criteria. We respectfully request your good-faith
review of this appeal and a fair action considering all
applicable circumstances of this project, _ "
In addition, the justifications for requesting the overturning of
the ARB's Findings and Denial are as folloWSJ
A, During the 9-20-90 public ~earing, (ta~e recording avaiiable)
it was apparent that at least :2 of the 4 ARB members were not
advised of the City Attorney's 7-:24-90 interpretation regarding
the proper responsibilities/authorities of the Board,
B, Size of the house was verbally noted again and again by the
ARB members as the main (real) reason for their "concern'" and
reiuctance for approval. Although in the written denial,' ,the ARB
writer' (name unknOWn) avoided the recording of such statlj'ments as
same would be invalid reasons and could be evidence.;i,of. bad-
fai th. ':..'i......,:t-:..
P,Q, Box 2006. Upland. California. U.SA. 91786
(714) 0 \8 1181
94-'}-7439
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9-25-90 Arcadia Planning Commission, continued:
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Co The front (street) elevation and street-side set-backs were
nc.ted by the ARB members as being very acceptable' ..(w/o the i~
dormer). This again failed to be recorded in the ARB ,written
denial, (Jape recording by the owner available) ~"
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As the Planning Commissioners may recall, the front (street)
elevation with the entry portico was the only majo~ remaining '"
issue of the last submittal, While we made our good faith efforts ~
'~.:) wcO\"k with the ARB in making the corrections (and the ARB'. .
members even acknowledged same verbally in the hearing), it is -:'
very dishlrbing to note that the ARB writer chose not to,:,~!
l"e.:ord/recognize same on its official record, ."J'.. .:":??
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D. In additic,n to the misleading records of the hearing noted' ,..,.
ab,:.ve, it ' is also disturbing to note that an apartment owner was',/'
allowed to participate in the ARB Board discussions after'the,~}.
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close of the public hearing and' subsquently allowed to ,"vote" on'".><
the denial until the applicant's questioning/objection, While'1
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vc.lunteerlng t.~ serve on the ARB 1S commandable, we bel1eve the ,:,
Board needs to respect the due 'process of law and' to have the' .-
gracefulness of having the common decency of good-faith, .
The applicant still appreci~tes the ARB's legitimate conc~rns for
protecting' the puaiic interests, but ~ust respectfully take
excepticln to it'!> persistance on carrying' out, its now "hidden",
illegal and arb.itrary "policies" on size arid Set-backs which were
':,bviouly still the Llnderlining reasons for its decision,'
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The appl i,:ant
c.f our appeal
Thank Y.:lU for
trusts the Planning' Commission will see the
and a.:t fair~y and favorably thereupon, .,: -. ..
y':lur cl:lnsiderations,
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Robert I,H. Ho, Architec~
Applicant of Project
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. ..e No. 1/6"7
Date Submitted '1/=/ qo
ARCHITECTURAL DESIGN REVIEW
BOARD (COMMITTEE) FINDINGS AND ACTION.
A. PROJECT ADDRESS:
B, PROPERlY O'NNER:
-WI C:OIl'T(~ /lAIl,b A/l~IloA
:1>""'1) J. "oJol . S.,Uol >.JU rr A\..
ADDRESS Of different) .,11 C:o/l.'l'(~ ItAA') AI1.CA~,Il,
C, PROPOSED PROJECT (described in detail): NN:l. S"1't4'1 '10.,,, S& r-r HOMt "'.'ill
3 ~M, 11. eM T"..llC...) ClII'tAGoC
D. FINDINGS (only cheek those that apply, and Dmvlrlllll writtlln Ilmlllnllllonfof Illld! ehlldt\
1.
The elements of the structure's design [ ] ARE, [J ARE NOT consistent with the existing
building's design because
2,
The proposed construction materials [ ] ARE" [ ] ARE NOT compatible with the existing
materials, because .
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3. The proposed project [Xl IS. [] IS NOT highly visible from the adjoining public rights of
wrry, bec:alJse Mil"'"; l3Ul~ rP ,^"uc" .sT",.'lIlM' _ 1$ .so <AllAr CoMP,"/!) "7b o'Tllf'l
"'Ol't(~ IIJ IMM.;1),AY( \'\C.I-"''''''''
4, The proposed project OdIS, [] IS NOT highly visible from adjoining properties because
SOAt'\( lIS I'mo\ "3
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6, The proposed project [ ] IS, [X] IS NOT In proportion to other Improvements on the
subject site or to improvements on the adjoining properties because,
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7, The loca1Ion of the proposed project 1XI WILL, [] WILL NOT be detrimental to the use,
enjoyment and value of adjacent property because, '
\I.NS n..... 1"t) "'-"II Dlf ,,,"porr) .r~''''\lI'r I/o1PA"" "-u'i" ""'"A''1 00:' In>Jo,J..( r M'l4N,..j
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8, The proposed project's setbacks I ] 00, I] 00 NOT provide for adequate separation
, ., between Improvements on the same or adjoining properties because,
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12/12/89
9. OTHER FINDINGS:
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ACTION
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[ ]
APPROVAL
APPROVAL SUBJECT TO THE FOLLOWING CONDITION(S):
[X] DENIAL. ST~J!; SPEClfI.C....fleASOm; FOR DENI~L.:
srr A't'.,.Ae~;l:)
e, DATE OF ARCHITECTURAL REVIEW BOARD'S (COMMITI'EE'S) ACTION ct/to/qO
. BOARD (COMMITIEE) MEMBER(S) PRESENT AT THE ARB MEETING AND RENDERING
THE ABOVE DECISION:
"T"O'" e...S4'"
CHAIlLlf G~Oj\'(
VIVO".! ~IP
ellA''- LyeA S
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G. REPRESENT1NG THE SANTA AN''''A' VILLAG.r f.Io,..1CWJ(~1
ASSOCIATION,
H. APPEALS.
Appeals from the Board's (Committee's) decision shall be made to the Arcadia Planning
Commission. Anyone deSiring to make such an appeal shoulcl contact the Planning
Department to determine the requirements, fees and procedures. Said appeal must be made
In writing within seven (7) worl<fng days of the Board's (Committee's) decision. and delivered
to the Planning Department at 240 West Huntington Drive, Arcadia, CA 91007.
I. EXPiRATION OF APPROVAL
. If .for a period of one (1) year from the date of approval, any project for which plans have been
approved by the Board (Committee), has been unusecl, abandonecl or dlscontinuecl, said
, approval shall become null and void and of no effect.
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12/12/89
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SANTA ANITA VILLAGE
HOMEOWNERS ASSOCIATION
UCBITEOTtnU\L REVIEW BOARD fINDINGS AND AC'rION
The ARB spent quite some time reviewinq the application with the
applicant, We received cOllUllents frqm,the property owner of an
apartment located behind 711 Cortez and the Chairman of the ARB
reviewed for the benefit of the applicant and the other members
of the ARB the contents of a note received frqm Mr, Robert Bash
the owner of 723 Cortez (the property adjoininq 717 Cortez to the
south), Mr Bash was unable to attend the pUblic hearinq because
of another engaqement, The members of the Board then asked the
applicant questions about specific ar~hitectural features.
After lookinq at specific chanqes to certain architectural
features noted below (this is somethinq that the Board does with
every application it receives), the Board made the decision to
deny the application.
The denial was based on the Board's concern that the visual
impact of this proposed home'S mass'would be overwhelming and not
harmonious with the illUllsdiats neiqhborhood or with the villaqe in
general.
If the massiveness of this home could be reduced, the followinq
cOllUllents deal with specific architectural details that the Board
felt would have to be chanqed:
1) The dormer (Alternate 0) adds to the visual mass of the
east elevation (front yard) and should not be included,
2) Sideyard elevations (north"ilnd south) second floor
windows for the master bedroom, Bed #3 and Bed #4
should be hiqhwall windows that would admit light but
not allow a view of north and south neighbor'S yards.
Bathroom window on south elevation should be frosted
qlass, '
3) Master bedroom bay window should extend only 1'-6"
instead of 2'-0" so as to restrict the view of
neighbor'S yards from the s~de bay windows,
4)
Overall the cOllUllent was made. that the extension of the
second floor of the proposed house beyond the
neighbor's into the rear yard impacts the privacy of
both neiqhbors,
Chanqe front entrance from a double door to a sinqle
door with sideliqhts and the halfmoon window above so
as to mitiqate the "qrand opulent entrance",
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5)
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6)
Concrete tile (CalShake type) color to be dark
earthtones.
7)
Driveway to be flared so that at the curb it is the
width of a sinqle drive (12 feet) minimizinq a concrete
front yard and allowinq for. additional qreenery,
.',
B)
AIC condensinq unit (applicant indicated there would
only be one unit) would be located in rear yard aqainst
house and not closer than 5 feet from the south
property line.
It was suqqested that a landscape plan should be
provided,
9)