Friday, June 8, 2018

The One Carter Development Crawls Out From Under Its Stonegate

Back in 2014 there was this. It is now coming back.

There will be a public hearing on June 12 at 6:30, during which the City Council will decide whether or not to rescind its denial of the Planning Commission approved house on Lot 24 of One Carter/Stonegate.

If the council allows for this house to be built, the lawsuit will be settled. This is the only lawsuit the city has with CETT, and it concerns just this lot. If the city settles, each house that follows will have to be custom built and go through the planning commission. If the lawsuit is lost, a judge would decide what could be built.

Nothing in the plans for the house has changed since the Planning Commission approved it on 10/16/2014. The details are found in Exhibit B of the archived staff report (link).


Mod: Back in 2014, when all of this was going down for the first time, John Hutt wrote a very eloquent letter on the topic, which I then posted here. Since we're now in deja vu mode on this one, here it is again. Not all that much has changed, except perhaps the City Council's willingness to give in.

John Hutt: I write not to urge approval or denial of the above-reference project, but to recommend a methodology for your review. Namely: act reasonably, vote for what you believe is in the best interests of the town, and ignore the legal threats swirling about the project. As detailed below, I believe that the legal consequences feared by some are vastly overblown, and that the approval or denial of the project is well within your legal discretion provided that you ground your decision in the requirements of the General Plan, Hillside Management Zone Ordinance and Settlement Agreement.

The applicant has threatened litigation if you deny the project and its attorney, Mr. McDonald, has claimed that your doing so would be illegal. My impression of Mr. McDonald is that he is a skilled attorney doing his job. He is a zealous advocate for his client, as he should be in our legal system. By design he is not impartial in this matter. You should by all means carefully consider his testimony, but when you do so keep in mind his position and interests.

Doubtless the City Attorney has counseled you on the legal risks involved. I have high regard for the law firm the City employs as legal counsel. While they will act as the City's advocate if this matter does lead to litigation, I trust that in closed session they offer objective advice that you can rely upon. However, it is also important to keep their role in context. Their job is to warn you of legal risks.

Weighing those risks against other concerns is your job, not theirs. As I discuss in more detail later, an action taken to avoid legal risk can often have serious other consequences. A business that backs down from all action because of risks highlighted by its attorneys will not long endure. Similarly, for the City to thrive its leaders must act in its best interests even when faced with legal risks.

By discussing the interests of others I don't intend by negative inference to pretend that I don't have an agenda as well. My views on this project are well known. I criticized the early iterations of this project in numerous public hearings. I met with the applicant's representatives, including Mr. McDonald, to offer advice on how to improve the project.

CETT Attorney Richard McDonald on the drought (link).

The current project is much better, but it is still far from good. We shouldn't confuse progress with the end result. Doing so will only encourage future applicants to make their initial submissions to be as horrible as possible. As detailed below, I believe that the question of whether the project as currently configured meets the minimum requirements for approval is debatable.

Before offering my own legal advice I should give you some idea of my qualifications and experience. After graduating from Cornell undergrad and Michigan for law school, I have worked in California for 18 years as a real estate attorney and developer. I've worked at law firms big and small on a wide range of real estate projects with an aggregate value measured in the billions.

Aside from helping a few friends with Sierra Madre properties, I have made a point of focusing my professional activities outside of town. I have no financial interest in this project. So I speak to you in what I consider to be one of the highest capacities you will hear from: Sierra Madre resident.

I suspect that long after the applicant has liquidated this and all of its other properties in town, and after Colantuono, Highsmith & Whatley, PC no longer represents the City, you and I will still be living here dealing with the implications of your vote on this project. So with my background and agenda vetted, I now ask you to consider my opinion as a land use attorney and town resident.

First, let me start with the standard of review. As the Staff Report correctly states, your review of this project is de novo. In other words, you should review the project anew. The question before you is whether the project complies with applicable regulations, most notably the development standards set forth in the General Plan, HMZ and Settlement Agreement.

Consider the Planning Commission's approval of the project as simply a recommendation to be weighed along with all other evidence you receive, including the testimony of the applicant and the town's residents.

If your decision were litigated, a judge would employ a different standard of review. Appeal of your approval or denial of the project is available to an aggrieved party by filing a Writ of Mandamus in accordance with California Code of Civil Procedure Section 1094.5. A judge will issue such writ (effectively overturning your decision) only if you abuse your discretion, or in layman's terms (and in a simplification that the City Attorney may wince at, but I believe to be fundamentally correct): only if you act unreasonably.

Before I discuss what constitutes abuse of discretion in more detail, let's pause to contrast the standards of review that you employ regarding the Planning Commission's decision and what a judge would employ regarding yours. Fundamentally, you are reviewing whether the Planning Commission got it right.

CETT Attorney Richard McDonald speaks to the Planning Commission (link)

They felt that the project did the minimum necessary to be approved, albeit just barely. If you feel the project comes even just a bit short, then you can deny it. On the other hand, a judge will overturn your decision only if he or she determines that you acted unreasonably, even if he or she thinks you got the ultimate decision wrong.

So what then constitutes acting unreasonably or an abuse of discretion? There are a number of ways you could be found to have abused your discretion (such as applying the wrong laws, failing to afford due process, or failing to make supportive findings) that I am confident that the City Attorney and staff will ensure that you don't run afoul of.

Of course denying the project because of the applicant's race, approving the project because of an undisclosed financial interest, or intentionally ignoring the General Plan, HMZ and Settlement Agreement could put the City in legal hot water despite the best efforts of those counseling you, but I have no concern that those types of actions will come to pass.

The most likely reason that a judge would determine that you abused your discretion is that your findings were not supported by substantial evidence in the light of the whole record. Code Civ. Proc., § 1094.5, subd. (c); American National Ins. Co. v. Fair Employment & Housing Com. (1982) 32 Cal.3d 603, 607.

Remember that your ultimate decision must be supported by findings, and those findings in turn must be supported by substantial evidence. The court must afford a strong presumption that your findings are correct. Fukuda v City of Angels (1999) 20 Cal.4th 805, 808.

Further, “unless the finding, viewed in the light of the entire record, is so lacking in evidentiary support as to render it unreasonable, it may not be set aside." Northern Inyo Hosp. v. Fair Employment Practice Com. (1974) 38 Cal.App.3d 14, 24. Another way of viewing this is whether a reasonable person could come to the same decision based on the evidence presented, not necessarily whether a judge would agree with your decision.

One can imagine a scenario in which a project is so horrible that any reasonable person would deny it, or conversely a project so wonderful that it must be approved. Neither is the case with this project. In my opinion it has pros and cons that reasonable people could weigh differently and on balance vote for or against.

Are 5 bathrooms too many in a city without water?

There are a number of development standards that require a certain amount of reasonably-applied subjective interpretation, and I believe that approval or denial of the project lies within that reasonable range. I think the Planning Commission acted reasonably in approving the project. I also feel that many of those who spoke or wrote against the project over the course of multiple public hearings came to a reasonable conclusion that the project does not meet the minimum requirements of the applicable development standards.

It is also easy to imagine a case where, despite the intrinsic merits of a project, little useful evidence is provided. An applicant baldly demanding approval adds no real insight or supportive evidence, nor do naysayers fomenting against development in general. Here though there is ample evidence in the record to support findings approving or denying the project. The Staff Report runs 165 pages. The Planning Commission resolution ably lays forth the argument in support of the project. Preserve Sierra Madre's letter does the same for the argument against.

I will be out of town for your meeting so I will be unable to witness it firsthand, but I'm sure the applicant will offer additional evidence in support of the project. Although it hasn't happened yet to date, maybe a resident or two will also speak in favor of the project.

Despite the upcoming holiday, I'm quite sure that there will be many speakers opposed to the project. Most of those will offer useful evidence to support their cause, and a fair number will even do so eloquently. In short, there already is substantial evidence in the record to support approval or denial of the project, and more will be offered before the public hearing is closed.

Therefore, I am quite confident that if you come to the public hearing with an open mind, consider all of the testimony and other substantial evidence presented to you in a fair and reasonable manner, and enumerate detailed findings to bridge the analytic gap between the raw evidence and your ultimate decision, that whether you approve or deny the project, your decision will successfully withstand legal challenge.

However, litigation can be time consuming and costly even if you win. Sometimes, but certainly not always, it is wise to settle or take other actions to avoid litigation even if you are confident that you will prevail. The costs and risks of litigation must be balanced against the non-legal implications of avoiding it.

 Stonegate: Where sunsets are in the north.
In performing this balancing act, you should consider not just the project at hand, but also the implications for future projects. While allowing one poor project to slip by to avoid a court battle may seem worthwhile at first blush, doing so only invites additional poor projects.

A number of years ago the City Council approved Tract Map 54016 and related entitlements (which subdivided the One Carter property) in large measure, if not exclusively, in order to save the City from the costs of litigation.

Not only did that poorly configured map produce lots which will be a challenge to develop well (and which is the root cause of a number of the issues confronting the current project), but it also spawned many follow-on lawsuits and earned Sierra Madre a reputation in the development community as a jurisdiction that would knuckle under to threats of litigation. Rather than putting a problem to rest as hoped, approval of the One Carter map opened a can of worms that we are still dealing with today.

Similarly, the question before you now is not simply about one house. Whether you approve or deny this current iteration of this project, houses will be built in the near future on the One Carter and Stonehouse subdivisions. How these houses are designed, reviewed and approved will greatly impact Sierra Madre's future.

Will we cower in the face of threatened litigation and allow profit-seeking developers to overrun the hillsides? Will we overcorrect in response to such threats and attempt to thwart even reasonable development?

I hope we chart a middle path. Hold firm to the General Plan and HMZ. Require strict compliance even in the face of saber-rattling attorneys. But continue to be mindful that these properties are privately owned and are approved for residential development. Whether proposed by a long-tenured local or an out-of-town developer seeking to make a quick buck, every hillside project that complies with General Plan and HMZ should be approved.

In summary, now is not the time to succumb to overblown threats and saber- rattling. Set aside unfounded fears of litigation, and vote purely on the merits of the project. Check your gut; look into your heart; cogitate on it. Consider all of the evidence and make your own personal judgment about what is in the best interests of the town.

Does the project “fit” in Sierra Madre as discussed in the General Plan? Is it sensitive to the unique characteristics of the hillside and surrounding context as required by the General Plan, HMZ and Settlement Agreement? Does it look more like the “THIS” rather than “NOT THIS” diagrams in the HMZ?

If you think so, approve the project. If not, deny it.

Mod: Sadly, John Hutt's methodology doesn't seem to be in play with the City Council as much as in 2014. Rather we're hearing that the project is moving forward to avoid a lawsuit. But isn't that how Sierra Madre got into its One Carter mess in the first place? And if one lot falls, what about the others? 

sierramadretattler.blogspot.com

96 comments:

  1. Sierra Madre to make final decision on controversial Hillside development (2015)
    https://www.pasadenastarnews.com/2015/01/12/sierra-madre-to-make-final-decision-on-controversial-hillside-development/

    I guess it wasn't so final.

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    1. It's deja vu all over again.
      Couldn't resist.

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    2. It isn't over until its over.

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  2. is this still happening?

    Stonegate Neighborhood Will Have Parcel Tax
    The Stonegate neighborhood in Sierra Madre is now a Community Facilities District, and its residents will have to pay an additional parcel tax to fund storm drain maintenance.
    https://patch.com/california/sierramadre/stonegate-neighborhood-will-have-parcel-tax

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  3. So well said, John. I'm hoping our thoughtful City Council will stand firm. Can you imagine having "Arcadia Andy" on City Council this Tuesday?

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    1. I'm sure Andy would have gotten a very grave look upon his face and intoned with great significance upon the danger of lawsuits.

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    2. Angry Arcadia Andy will put forth that anyone against this project is a racist.
      Good luck Sierra Madre.

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    3. 9:54 idiotic comment

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    4. I thought it was quite accurate, 10:37. Can you explain why you have disagreed so strongly?

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    5. 9:54 is right on track. It accurately describes what has been and continues in Arcadia. Behind the scenes developers paid to split the whole darn town into feuding factions. It is well documented on the Tattler.

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  4. Maybe they'll have to bring out the "We'll get sued!" parrot and mynah bird.

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  5. The timing is very suspicious. My guess is that they were waiting for Andy to be elected.

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    1. Andy couldn't make it. He has a Mensa meeting.

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  6. What exactly is the issue with this one house. Is it the design? Is it requiring a variance to FAR?
    I read nothing of substance in that letter as to why it shouldn’t be approved. He said it barely passes requirements. Legally there is no such thing. It either follows the guidelines or it doesn’t. It goes both ways you either approve a project because it meets them or deny it because it doesn’t. You can’t say, well it meets them but just barely so let’s deny. That would make for an unreasonable atmosphere, one where activists have free reign of the city, which is just as bad as developers being allowed to do whatever they want.
    If the argument here is you don’t want any houses at one carter, then it’s too late for that, it has already been approved. You have also approved standards of development and size restrictions which as I understand it have been followed, so again on what basis should this be denied.

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    1. It's cookie cutter and generic. You don't like the rising property values in Sierra Madre? Move to rancho Cucamonga.

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    2. Hmm... snarky, but devoid of any relevance. Try again.

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    3. What part of 7:03's comment is untrue in your opinion? Sane community planning has made Sierra Madre one of the most prominent real estate successes in the SGV.

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    4. Love it or leave it = trump talk

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    5. I did not say it was true or untrue. I said it was irrelevant. Sane planning implies setting standards and everybody follows them, both applicant and regulating body. It is Insanity to expect the applicant to follow the regulations, and have the regulators change things because some people voice their opinions.

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    6. 6:57, it's a lengthy article, so perhaps you missed this bit:
      "Is it sensitive to the unique characteristics of the hillside and surrounding context as required by the General Plan, HMZ and Settlement Agreement?"
      This design has nothing to do with the area it is proposed for.

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    7. Which makes your comment irrelevant. The City Council is not made up of salaried employees who have no choice but to hew to the narrow definitions and closed bureaucratic thinking you prefer. They have the freedom to empower community hopes and values. Why is that so hard for you to understand?

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    8. 9:05, that is an unquantifiable metric. Should they design modern caves? Its a tuscan style home. You can't seriously say that 1950's ranch homes are more contextual.

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    9. I've seen this house all over Pasadena and San Marino. Maybe it shows up in Tuscany.
      The point is that the design is calling attention only to the house, and not the hillsides it is intended for. A thoughtful architect would not have to resort to a cave.
      The "Santa Barbara" just another excessively plumbed box with a few gewgaws to soften the look

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    10. 9:09 so that I understand your logic, they aren't regulations, they are suggestions?
      And elected officials are communal dictators?
      Who's hopes and values, the 11000 or the 15-20 that show up at all the meetings.

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    11. Not a design of merit. Rather vanilla.

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    12. Tuscan? More like Duarte.

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    13. Design intended to maximize the FAR. Sensitive to the surroundings or to a hillside? No hillside visible when the boxes get stack together like Legos. A dime a dozen design.

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    14. Developers want cities to adhere to the philosophy, "build to code anything goes". Design review might require that they need to given up some square footage to achieve harmonious and compatible custom design . It is all about the money. That translates to build to every square inch. Warehouses with Hollywood fronts.

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  7. John Hutt is amazing! I hope the CC listens to them. I have no faith in Highsmith’s judgement, so I hope they do’t listen to her.

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    1. Highsmith and the rest of the Kolantuono Krue would love a lawsuit. They have made a fortune off of One Carter already, and the gift just keeps on giving. That's why John Buchanan gets a bottle of wine from them every Christmas.

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  8. 6:57am. Is is correct. The "You can't say, well it meets them but just barely..." defense and argument is what this City Counsel's decision will have to be based from.

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    1. That is why we have elected officials. So the wishes of the people can override mere bureaucratic compliance.

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    2. But “the people” pushed for the FAR standards and hillsides and general plan. How can anyone plan anything with your logic?
      And to whom do you refer with “the wishes of the people”. We are a community of 11000 that have established a representative government. Why should a few override those wishes. You can say they are uninformed, but that is not your call, and not the way our society works.

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    3. Why do you keep saying "a few?" The City Council is currently made up of 5 people who stopped this development a few years back. Why would they change their minds now? Are greedy lawyers your metric for "the way our society works?"

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    4. Arizmendi has to recuse herself, right? So the decision will be made by 4 people.

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    5. by few i mean preserve sierra madre and this blog.

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    6. As opposed to all of those people living in your head.

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    7. Is that the standard that Sierra Madre wishes to espouse? "barely there" is good enough? Sierra Madre deserves a higher standard then "barely".

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    8. Creeping mediocrity, courtesy of Lawsuit Richie.

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  9. What amount of money for a seismic retainer was posted to the city for safe guarding the Historical property's on Carter One from possibly being destroyed?

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  10. As I read the plans, there are to be 4 1/2 bathrooms. Does such liberality of potential water usage mean the other residents of the town will no longer need to suffer under such high water rates, and penalties? Is it time to celebrate the abundance of water?

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    1. This house will be the template for everything that follows, so welcome to the Buchanan/Stockly/Torres/Joffee bathroom suburb.

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    2. I guarantee you that those 4 1/2 bathrooms use less water than your 1. You can't use them all at once, and the flow rates on those fixtures will be a magnitude lower than the average in town.
      Try again...

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    3. 4 1/2 bathrooms use less water than 1....huh.
      Might depend on how many people are in the house, what kind of upgrades have been done to existing structures, ya think?

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    4. 5 people using 1 bathroom or 5 people using 4 1/2 bathrooms use the same water, unless said fixtures were installed after to 2016. Yes I think, try it sometime.

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    5. Wouldn't it depend on how many people lived there? With 5 bathrooms you could open up a sober living facility.

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    6. Certainly hope that CETT or whoever it is that actually owns those lots knows that the drug rehab next door frequently sends its clients to stroll up there. The previous drawbacks to the place were fires and floods. Now there's a little added extra.

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    7. I remember John Capoccia asking the architect why one would need five bathrooms, and she got very annoyed with him, couldn't come up with a rational reason. Stay strong Councilmember Capoccia!

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    8. Didn't she say something about "modern families" liking many bathrooms?

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  11. The Village View just came online, and in the current projects list from Planning there is no 610 Baldwin Court.
    Huh?

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    1. I think they consider this project off their plate now. The City Council could send it back. I think.

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    2. It should be on the current projects list.

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  12. Staff report. Detailed in the way municipal documents are, but I remember lots of resident responses to all these points, that are nowhere to be found. So the details apply to just one side.http://www.cityofsierramadre.com/common/pages/DisplayFile.aspx?itemId=13213117

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  13. I'm starting to hear "talk" around town again about the Retreat Center destroying their property for money so the priests can retire in luxury.

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    1. Well, we have a preservationist City Council that will do everything they can to put a stop to this nonsense, right?

      Right?

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    2. Which nonsense?
      I suspect this is on the table because of a willing majority on the council to settle.
      Hope I'm wrong.
      The monastery is better protected because of its zoning and because of the lessons learned in the Carter mess.

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    3. The same nonsense they rejected 4 years ago. What is the difference now? They're all termed out?

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    4. I know Denise is, not sure about the 3 guys.

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    5. The city attorney must be advocating for the city to give up?

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    6. She's upping the ante. Time for a new Mercedes.

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    7. It might be a result of seeing where expenses can be cut, and not what Coluntuon et al want at all.

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    8. All 5 City council members are seated, having been elected, for their second term. Two seats will be open in two years and three in two years after that. This is the normal cycle if all run and are elected for a second term and there is no one leaving mid term or not running for re-election.

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  14. Ominous little ditty from the Staff Report:

    "Extend the One Carter Settlement Agreement for 18 months to allow CETT or successor-in-interest to submit plans for development of One Carter subdivision in compliance with applicable application submission requirements."

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    1. "successor-in-interest"?
      CETT eyeing a profit making sale?

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  15. The Planning Commission was bullied in to approving this house, and now the council is being bullied into agreeing with that approval.

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  16. Time to let the City Council members know what you think. Everyone better show up to the meeting. No 18 month extension. Just say NO to the developer.

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  17. If this gets approved I say we recall Goss.

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    1. Fine, if you've got proof, $10,000, and enough foot soldiers to cover the town twice.

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    2. Lock him up!

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  18. This comment has been removed by a blog administrator.

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  19. CETT purcased the Carter One property, the basic stucco and box designs are what is showing up in all neighborhoods.
    The fact that the owner follows a one musical note with no emotion put into play, has no good taste in designs and ties the hands of his Architects, does not change the "is it unique to the characteristics of the hillsides" clause.

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    1. It's stepford architecture. Not unique -no even close.

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    2. That’s a very subjective world view.
      What’s next policing the type of music played in public.

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  20. Arizmendi, does she reside more than 500ft away from the project? She may still cast a vote.

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  21. Im starting to hear "talk" around town for the subterrian parking lot with potentially 75 condos on the Howies Market property; when is the lease agreement up?

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    1. That's what you get for talking to the neighborhood pets.

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  22. I could support the 18 month extensions for CETT.
    There could be a slim chance in allowing the Architectural design changes to blend in with the hillsides.
    A Re-Do of the hillside neighborhood existing up close and personal with wild animals and party animals. In the very least it would be a neighborhood well sought after, without the 5 bedrooms and 4-5 bathrooms, if the atheistic appeal for living in unique settings were followed.

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    1. Are you crazy? Extending it would allow for more square footage.

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  23. If the council allows this plan to go forward, there won't be one house built up in those hillsides that is one inch less in size. The demand will be that each house has the right to be exactly as big, just as looming, and the embodiment of mcmansions shoe-horned into those weirdly shaped lots. Pathetic.

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    1. This would be right at home in Arcadia. Has the same boxy boring look. Meant to gobble space and increase volumne. This will become the new normal. Model condos.

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    2. And basements galore, all of 27 lots worth.

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    3. Oh you’re right. Basements. Let’s just shoot them on principle. Why in the name of unicorn poop do you care about basements. Seriously. What is wrong with you?

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    4. The basement idea was put forward as a way to decrease massing. Didn't work.
      Instead, they are being used to have three story homes.

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    5. First floor views aren't so good.

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    6. I know of one project that promised to reduce the SF on the first and second level if they could have a basement. Didn't go very well. The first and second levels were reduced a WHOPPING 80 SF and the basement was over 1,000 SF. After the basement was built the basement walls leaked. Way, way, way over budget. No profit to the developer. So sad. Why am I smailing.

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  24. All of you posters, please attend the City Council meeting on Tuesday night and make your feelings known. I agree with whoever said that we know about Denise, but am not sure about the three guys. Rachelle may be too close physically to vote.

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  25. stucco condo. Stack this design elbow to elbow, side to side and the entire area will look like rows and rows of stucco boxes. If this is allowed then it should be made clear that the next one has to be significantly different. Looks boxy because it almost fills the allowable building envelop. Garage to the rear is a plus.

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  26. Sierra Madre is changing, the decisions to have Kersting Court resemble a Starbucks coffee pergola in exchange for ART in public spaces should clue everyone in for what will follow on the Carter One properties.
    Lacking in pleasing assestics and creative taste is strong with CETT and Council.
    Nothing unique about Sierra Madre, a town that could be Anywhere USA.

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  27. The 710 fry. extension is a thing of the past, individuals living in the homes may now purchase them for a fraction of market value.
    Good for CALPers employees, Californians Nuevo wealthy.

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  28. 4:30pm. Correct, basements for all.
    The bear, rattlesnakes, mountain lion all could use them for shelter.
    ,

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    1. The people can use them for shelters when the wildfires sweep through.
      And undoubtedly they will be built to withstand the earthquakes, no matter how close to the faults they are.

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    2. The snakes will appreciate the coolness.

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  29. Attorney Chris Sutton, representing a few homeowners buying back their homes in South Pasadena from Caltrans; this is the same attorney that wrote Measure V for Sierra Madre.

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  30. Why won't the Sierra Madre PD post Mountain Lion sightings at the entrance of Carter One, a few friends have spotted deer carcasses on the upper lots.

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  31. I don't understand what the city gets by settling.

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