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Routine discussion turns into debate on Planning Commission decision processes Saratoga--What was supposed to be a routine update on the status of the city's fencing-ordinance amendment turned into a full-fledged debate concerning everything from fences to suggestions of a possible Brown Act violation during a joint Planning Commission and City Council meeting Jan. 25. The tension among some commissioners and council members at times during the evening was more impenetrable than even the best fence in the hillsides. The status report took its first turn when Planning Commissioner Erna Jackman said she wanted to reconsider her Jan. 12 vote to approve the amendment, which would increase the amount of land allowable to be fenced in the hillsides from 4,000 square feet to 20 percent of the property, no matter how large the property. Commissioners Cynthia Barry and Lisa Kurasch are also against the proposed amendment, which the commission passed 5-0. After the Jan. 12 meeting, from which Kurasch was absent, Jackman and Barry emailed the City Council from Kurasch's computer. Without notifying the other four commissioners, Jackman and Barry asked the council to remand the decision back to the Planning Commission. The email said that, due in part to the late hour of deliberations, not enough time had been spent discussing the rationale for a change in the ordinance and the three commissioners felt uncomfortable with the outcome. A majority of the council--Stan Bogosian, Ann Waltonsmith and John Mehaffey--agreed with Jackman, Barry and Kurasch to send the decision back to the Planning Commission. Councilman Nick Streit said he opposed a remand, and Councilman Baker said he did not care either way. Planning Commissioners Mary-Lynn Bernald, Chuck Page and George Roupe were noticeably surprised when they learned of the email communication. Bernald, the commission's chair, questioned the appropriateness of the email, which was not sent to her, Page, Roupe or Margaret Patrick. Patrick was absent from the Jan. 25 meeting. Bernald said she was concerned the private email may have influenced a decision. City Attorney Richard Taylor said the commissioners did not violate the Brown Act by sending the email to the council. The Brown Act spells out the rules governing public meetings. However, if a quorum of commissioners, which is four in the case of the seven-member Planning Commission, had together sent an email to the Council, that would constitute a violation, he said. The fencing issue first emerged in September, when residents came to a joint City Council and Planning Commission meeting to ask the city to relax its strict rules limiting hillside fencing, to alleviate wildlife problems. Exceptions to the current ordinance can already be made in cases when the fence is hidden from other properties' views and in cases where safety calls for it. The city was receiving so many requests for exceptions that council members in September suggested that increasing the allowable enclosed area might help cut down on them. Thirty-three percent is the average amount of property enclosed in the exceptions that have been granted since 1994. No residents attended the Jan. 12 public hearing, but one resident wrote a letter saying she thought the ordinance should remain as is. The commission voted to recommend an amendment to the ordinance to the City Council. In addition, the commission recommended that another exception be added to the list--agricultural purposes to better protect vineyards and orchards from animals. Kurasch said she had questions about whether the agricultural exception would increase the net allowable enclosed area. She also said that the discussion on a cap on the number of allowable square feet was pushed aside. Ironically, a majority of commissioners will most likely vote to approve the amendment, when the issue comes back to the commission, meaning that the amendment will pass again. However, the final decision on the amendment will be made by the City Council, as the Planning Commission only has the power to make a recommendation on the amendment. Councilman Nick Streit suggested that sending the issue back to the Planning Commission is a waste of citizen's and city official's time, as did some commissioners. But Jackman, Barry and Kurasch said that they took issue with the process the Planning Commission followed when making its decision on the fencing, as well as the actual outcome, and cited the lack of public involvement Jan. 12. That night, Commissioner Barry had made a motion that the Planning Commission follow an outline she had created to come to their decision, but the motion was never seconded. She said she abstained from voting Jan. 12 because she was not comfortable with the process or the decision. "I don't know the 'why,'" said Barry, adding that the discussion should have answered larger questions like whether fencing in the hillsides is essentially good or bad. The majority of council members agreed. Although the council had asked the Planning Commission to review the fencing ordinance, Mayor Stan Bogosian said he didn't think there was enough in-depth discussion of all possible remedy measures. "I am not interested, personally, in messing with [the ordinance] unless a compelling case can be made for some reason we have to start tweaking," Bogosian said. "And the sense I get from the process is that not all of these reasons were brought out or articulated. We're not going to assign fault here ... it just didn't really get discussed. Later, he added, "Moving forward with a law is serious business." Councilwoman Waltonsmith questioned whether exceptions lead only to more exceptions and whether sticking by the rules would lead to no more requests for exceptions. She also said she thought the commission would have taken a more philosophical approach to the issue, addressing why there were so many exceptions. Planning Commission chairwoman Mary-Lynn Bernald asked Waltonsmith what her definition of "philosophical" was and asked her how long she would propose that the commission spend on these types of discussions. Waltonsmith responded that, although the commission does not need to take an extreme amount of time with its decisions, all commissioners' questions should be answered. Kara Chalmers [ San Jose | Metroactive Central | Archives ]