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CHC Minutes-2008-05-29►f�iT�i�iC�77_1�1�111►�i1 TO: Dave Adams, City Manager Steven Apple, AICP, Community Development Director FROM: Teri Delcamp, Historic Preservation Manager Cultural Heritage Commission Secretary SUBJECT: . Cultural Heritage Commission Actions of May 29, 2008 August 13, 2008 This memorandum summarizes the actions taken by the Cultural Heritage Commission at their special meeting on Thursday, May 29, 2008. No action is required unless the City Council wishes to hold special review of an item; note that Old Business item #1 has been appealed by a member of the public. CALL TO ORDER Chair Tryon called the meeting to order at 5:00 p.m. ROLL CALL Present: Don Tryon, Chair Ed Nunez, Vice -Chair Nathan Banda Lorie Porter Janet Siegel Absent: None Staff: Teri Delcamp, Cultural Heritage Commission Secretary Steven Apple, AICP, Community Development Director Grant Taylor, Assistant Community Development Director ORAL COMMUNICATIONS None. NEW BUSINESS 1. Eagle Scout Project at Blas Aguilar Adobe: a request to construct a replica horno oven adjacent to the south side of the adobe located at 31806 EI Camino Real. (APN: 124-160-08) (Applicant: Mathew Gunnemann) Teri Delcamp made the staff presentation and recommendation that the Commission provide input regarding the proposed construction of an horno at the Blas Aguilar Adobe. No speakers addressed the Commission on this item. Dave Adams, City Manager 2 August 13, 2008 Commissioners asked staff a variety of questions including whether there would be any ground disturbance, whether the design of the horno would be more authentic than the one that was constructed at the Montanez Adobe, and whether the proposed location is the historic location of the horno. Staff responded that the applicant has indicated there would be no ground disturbance, the intent is to replicate the appearance of the historic horno in its historic location. The applicant has assembled a good team of advisors including David Belardes, and staff will be inspecting the project to' ensure it is carried out in an authentic manner. Commissioner Siegel commended the applicant for taking on the project and the information submitted. 2. Annual Reorganization of Commission: Selection of Commission Chair and Vice - Chair Chair Tryon opened the nominations for the position of Chair. Commissioner Siegel moved, and Commissioner Porter seconded, the nomination of Commissioner Nunez as Chair. No further nominations were made and the nominations were closed. The Commission voted 5-0 to select Commissioner Nunez as Chair for the upcoming year, to take effect upon the adjournment of the May meeting. Chair Tryon opened the nominations for the position of Vice -Chair. Commissioner Porter moved, and Commissioner Siegel seconded, the nomination of Commissioner Banda as Vice -Chair. No further nominations were made and the nominations were closed. The Commission voted 5-0 to select Commissioner Banda as Vice -Chair for the upcoming year, to take effect upon the adjournment of the May meeting. OLD BUSINESS Site Plan Review (SPR) 07-001, Mission Rectory Garden: an application for approval of modifications to a historic site including but not limited to installation of landscape, hardscape, and accessory structures Located adjacent to the priests' residence (Rectory) in the area north of the Serra Gate and the wall defining the north end of the publicly accessible cemetery at the Mission San Juan Capistrano. The site is located at 26801 Ortega Highway, with a General Plan designation of Public and Institutional, and a zoning designation of Public and Institutional. (APN: 124-180-06) (Applicant: Mission San Juan Capistrano) Teri Delcamp made the staff presentation and recommendation that the Cultural Heritage Commission approve the Mitigated Negative Declaration and conditionally approve the proJect, requiring the careful removal of the fireplace and kitchen counter area among other conditions. The project area is approximately 6,661 square feet in area and is enclosed by an approximate 6 foot masonry wall to the south which defines the north end of the Dave Adams, Manaqer 3 August 13, 2008 publicly accessible cemetery at the Mission San Juan Capistrano; an approximate 6 foot adobe wall to the east separating the Mission grounds from the public street EI Camino Real; a small stretch of wall to the north that connects the east wall to the rectory building wall; and the northern portion of Serra Chapel and the rectory building to the west. The project proposes modifications to a designated historic site, most of which were already completed without City Planning approvals and permits, including but not limited to installation of landscape, hardscape, irrigation and electrical lines; and construction of an outdoor fireplace, fountain, outdoor counter structure with a wood -burning oven, masonry walls, pilasters and gates located adjacent to. the priests' residence. Staff had informed the CHC and the public about the project at prior meetings on October 9 and November 27, 2007; January 22 and March 25, 2008. The application was deemed complete on April 16, 2008, and an initial study was prepared resulting in the preparation and issuance of a Mitigated Negative Declaration. The project was re -noticed for the May 29 meeting. Mitigation measures and staff's analysis of the project recommend removal of the two items that are not compatible with the historic character of a cemetery: the fireplace and the BBQ counter area down to the top of their foundations. Other mitigation measures are incorporated into the proposed conditions of approval. The applicant requested modifications to some of the conditions; a memo with the changes that staff is able to support was provided to the CHC. Vice Chair Nunez and Commissioner Banda recused themselves due to financial conflicts of interest and left the meeting. Gregory Weiler, Esq., and Father Art Holquin addressed the CHC as representatives of the applicant. Mr. Weiler indicated the Mission has been working closely with the City staff and Commission to ensure that the proper approvals are obtained. Like other residents in similar situations, the Mission is trying to thoroughly address and resolve the issues. The Mission concurs with staffs additional recommendations in response to the Mission's request for changes to the conditions., The Mission is a site for religious purposes of the Roman Catholic Church and those purposes are protected by laws including the 2000 Religious Land Use and Institutionalized Persons Act (RLUIPA). These protections apply post hoc and to historically significant sites. Father Holquin acknowledged that the entire Mission campus is hallowed ground deserving of respect. The Mission cemetery's first burial is recorded as 1781. Father Holquin clarified that Native American neofitos were brought into the church through baptism, and that burial in the Mission cemetery is restricted to members of the Catholic faith. Father Holquin stated.that he agrees to implement all of the mitigation measures with the modifications they requested as supported by staff's memo. He Dave Adams, City Manager 4 August 13, 2008 stated that they will be carefully reconsidering the future use of the cemetery for members of the community. They intend to keep the area contemplative in nature. He affirmed the desire to address the mistakes that were made. Public input in favor of the project was given by the following individuals [note: Petitions 84a and 84b are generally two sets of materials on file with the federal government representing efforts to seek federal recognition of the Juaneno Band of Mission Indians, Acjachemen Nation (JBMI)]: Mike Martin, Mission Basilica parishioner: Mission SJC is the "Jewel of the Missions" and the project area was a major flaw before. National cemeteries have lawns, flower beds and fountains. The Rectory Garden deserves the same respect. The project is now beautiful, is dedicated to the memory of Monsignor Martin and shouldn't be returned to its prior blighted condition. Ed Connor, SJC resident: The area was a disgrace before. All people's ancestors would be honored by the project. Father Art has agreed to everything, and all that is left are a fountain, walkways, plants and gates that should be allowed to remain in the private rectory area. Chris Sandoval, representing JBMI Tribal Chair Anthony Rivera and the Tribal Council: JBMI led by Chair Rivera is state -recognized and governance is federally acknowledged. He reiterated comments in the letter from Chair Rivera regarding the site. They have continued to actively participate with the City and the Mission seeking a respectful resolution, and they enjoy a strong working relationship with the Mission. There should be no further disturbance to the site. Requested a stipulation that the Native American monitor be one approved by their tribe. The staff report, ARG and Chambers Group report statements that the JBMI want the project area to be returned to its original condition are inaccurate since those opinions are not reflective of the tribe as a whole. The garden is a fitting tribute to the memory of Monsignor Martin. They have their own traditional ways to honor their ancestors that do not involve the garden. The recommendations are a reasonable solution. Thomas "Happy" Hunn, JBMI and SJC resident: wishes for a speedy resolution. The Mission has always been respectful of the tribe. There should be no. further disturbance. Wick Lobo, JBMI and Mission docent: Other individuals' negativity and opposition to the project do not reflect well on the JBMI name and what the JBMI stands for. There should be no further disturbance to the project area. Teeter Romero, JBMI, Petition 84a and Mission docent: Lifelong resident of SJC and is at the Mission every day. Supports project and there is no sense in further disturbance. Dennis Summers, JBMI, Petition 84a and SJC resident: His ancestors were buried in the 1812 earthquake. It doesn't make sense for people to say they are worried about the disturbance that already happened but now want to have everything removed and returned to the way it was before. He would hate to see it destroyed to turn it back to the way it was. Dave Adams, City Manager. 5 August 13, 2008 Laura Freese, SJC resident: The damage that's been done won't be helped by ripping it out and returning it to the way it used to be. It is a cemetery and should look beautiful. Supports removal of the items recommended by staff and accepted by the Mission. Daniel Mitrovich: Long family history in Southern California. He has seen the project area — it is beautiful. He encouraged the Commission not to change a thing. Don Heffern, Yorba descendant: Great-grandfather is buried on the Mission grounds but they have never determined exactly where. Feels honored that the area was made beautiful. It honors those who are buried there and the memory of Monsignor Martin. Mike Martin (son of first speaker), SJC resident: Eagle Scout, Troop 724 with Gregory Weiler as Scout Master. Did Eagle Scout project at Harrison House — landscape project in side yard. He does not see a big difference between that project and the current one. The core idea was to beautify an area that was horrible before. Sam Difiippo, SJC resident: Compared site with Holy Sepulcher cemetery in Orange, where families gather with food and music to enjoy each other and be with their departed loved ones. This project's fireplace and BBQ area for people to similarly gather is no different. The beauty of the garden honors those who are buried there. Chris Lobo, JBMI, Secretary/Treasurer, Petition 84a under Chair Anthony Rivera: Their people work with the Mission and descend from pre -Mission times, who observe construction work that happens at the Mission, and will continue to do so. Urged CHC to understand that the Mission has done its best and has agreed to do what staff has required of them. The JBMI will continue to work with the City and the Mission to protect their ancestors. Mechelle Lawrence -Adams, Mission SJC Executive Director: Privileged to serve as one of many stewards here tonight who are caretakers for the Mission. Mission's history spans 234 years with changes, ebbs and flows throughout that history. To argue that it should go back to a certain period is revisionist. She is daily aware of being accountable to do the best job in evaluating impacts and opportunities. All that is left of the project at this point is a fountain, hardscape and some flowers. The Mission is willing to do whatever it takes to bring a resolution and a solution. She enumerated accomplishments in the last five years to improve and enhance the Juaneno experience at the Mission and to be inclusive of everybody, although not everyone chooses to participate. Mission SJC is the only California Mission to fly a Native American flag and to be committed to doing the right thing. The project is small now and they would like to move forward. Public input in opposition to the project was given by the following individuals: Patricia Chen, Miles Chen Law Group, representing the members of the Juaneno Band of Mission Indians, Acjachemen Nation (JBMI) led by David Dave Adams, City Manager 6 August 13, 2008 Belardes: Her firm had previously raised a concern about the potential for the project to force the City to engage in post hoc rationalization in performing retrospective environmental review. She stated there are glaring flaws in the process. Cited the timing of the documents which implies the City was working with the Mission to justify the Mitigated Negative Declaration, thus predetermining the environmental determination which is not allowed by CEQA.. Project has already resulted in significant impacts and allowing the Mission to complete the project would effectively result in rewarding the Mission for failing to follow state and federal law. Stated the MND is not supported by substantial evidence, citing unjustified conclusions in the project documents. Said CEQA doesn't allow analysis of illegal work that has already occurred. Approving the project and MND will result in the tribe looking at their legal options to restore the site. Joyce Stanfield Perry, JBMI Cultural Resource Director: Project is a private garden with limited public value. It has resulted in, and will result in future, unmitigated cultural impacts. City should exercise code enforcement authority and require the Mission to restore the site to its pre -project condition before any environmental review is conducted or else public disclosure requirements of CEQA would be undermined. Urged the CHC to not approve the project. Abel Silvas, JBMI, Native American monitor: He witnessed the. digging in the area at the time of the project's construction. He is appalled that the City let the Mission do this. Appalled that there has been no input about ancestors who are buried there, only honoring buildings. He has ancestors born in/connected with the Silvas and Yorba adobes and the Mission going back to 1776, and has ancestors buried, in the project area. Wishes the Mission could go back and start over following the laws. David Belardes, JBMI Tribal Chief and Chairman: He related his family heritage back to Alfonso Yorba I in response to another speaker's .comments. The Mission should include all four groups of the JBMI, not just one group. He was Most Likely Descendant at the Mission in the past, knows there are burials in the area and came with documentation trying to help. He enumerated other discovered burials and the processes followed to take care of them. Said new people don't know the laws, their culture, their religion, or how to take care of the ancestors but he has taken care of thousands of the ancestors. The law has been broken and needs to be adhered to. Father Holquin needs to bring everybody together, and needs to be consistent in caring for the cemetery on the hill not just beautifying this project area. Public input neutral to project was given by the following individuals: Stella Osborne, JBMI under Chair Ocampo, Petition 84b: JBMI is one large family that has been split. What is being overlooked is that it is not their culture to plant lawns and roses where they bury their dead. Even though it is Dave Adams, City Manager 7 August 13, 2008 beautiful, and what.has been done is done and what will remain is OK, but it is not disrespectful or ugly to have an area without lawns and roses. Jerry Nieblas, JBMI: doesn't claim 84a or 84b, only his people. The project has been but should no longer be used as a platform for fighting and attacking each other. Their disunity has affected their ability to achieve federal recognition. He urged his people to put aside the anger he has heard this evening and come together in peace and unity to embrace and protect the Mission which has always been and always will be their roots, their burial site and their home. Chair Tryon said he has listened to and respects everyone's concerns, but stated he has no doubt the project area was a cemetery and there may still be human remains there even though he has been told they were moved. There are known remains in the cemetery to the south. An issue can be made that the beautification diminishes the authentic character of the cemetery. The project area has gone through the same process (of change) over the past 100 years and looks better now than in its prior condition even back to the 1870s. Any remains that are there are more likely to be disturbed if the City requires removal of everything. There is no doubt that the Mission should have obtained permits. He commended ,father Art for the improvements to the Mission over the past few years. He is confident that Father Art was counseled to obtain the necessary permits but for his own good reasons went ahead without them. Father Art has readily agreed to staffs recommendations and to make the area accessible for special occasions. The kitchen counter area and the fireplace should be removed as recommended by staff, but the other elements should be allowed to remain because they make the area much more pleasant and respectful. Other missions have grass and fountains in their cemeteries, including Mission San Luis Rey. Commissioner Porter thanked the public for their comments and the many varied opinions. The. Commission's job is to consider the City's codes, CEQA standards and historic standards, not necessarily to satisfy the public. She complimented the Mission for accepting the mitigation measures. The project area was first Native American, then a church/cemetery and now a garden. The Mission made a mistake in not first emphasizing the area as a cemetery, then looking at it as a garden. The two are compatible as long as the area looks and feels like a cemetery. The fact that we can't start over and consider it as a cemetery first because the project is physically there does not mean the City is giving the Mission a "free pass." The City has to look at what can be done to return it to a cemetery. The fireplace and the kitchen counter should be removed as recommended by staff along with anything else that doesn't go with a cemetery. The grass should be changed to native plants and even the roses should be replaced with native plants to be more compatible with the Mission character. She feels these actions would convey respect for the Native American community and the importance of the cemetery. Removing all of the project elements would make the controversy worse instead of healing the Dave Adams, City Manager 8 August 13, 2008 situation. A monument of some type should be placed within, not outside the walls of, the rectory garden itself to commemorate it as a cemetery. Commissioner Siegel thanked all of the speakers and commented that all points of view have been spoken. She thanked staff for a comprehensive overview of the issues from all points of view on a very complicated project. It is hard to evaluate a project "after the fact." The fact remains that rules and regulations were broken. The project area was part of a cemetery. The Mission needs to be above reproach and held to the same standard as other similar organizations. The project cannot set a negative precedent for others. She hopes the Mission will continue to work closely with the City as they had in recent years. She feels there was no intent on the Mission's part to be disrespectful. However, the new retablo installation in March 2007 and preparation to honor the Cardinal's important visit to the town to dedicate the retablo in July 2007 were the highest priority for the Mission and the Church at that time. She speculated the Mission and the Church thought they would not have enough time to go through the proper process and finish the rectory garden before the Cardinal's visit. They made a decision to proceed without City approvals so the .City was never given an opportunity to work with the Mission to ensure a'speedy filing of documents. She understands that the concern about disturbing Native American remains is that it disturbs the ancestral vibrations and karma. If there were remains in the area, she questioned why anyone would want them disturbed again by removing what is there and putting back the original condition. Instead it is important to protect the ancestors for the future and she supports the removal of the fireplace and the kitchen counter area to the top of their foundations as recommended by staff. She also suggested the Mission and the Church pay for a company selected by the City to archaeologically test the entire Mission complex using sensitive methods with observance by representatives, of all factions of the Juaneno Band of Mission Indians. She stated that financial penalties payable to the City should be assessed to the Mission and the Church to discourage other developers and contractors from doing similar work without proper permits. She referenced state law penalties for disturbing Native American historic sites on public and private land. She supported the proposed changes to the conditions recommended by staff. The Commission discussed how to proceed with motions on changes to the conditions and asked the applicant to respond to the changes suggested by Commissioners Porter and Siegel. On behalf of the applicant, Greg Weiler requested a break to discuss the items. Chair Tryon called a recess at 6:50 pm. The Commission reconvened at 7:15 pm Dave Adams, City Manager 9 August 13, 2008 The applicant addressed the Commission: Mechelle Lawrence -Adams spoke regarding the monument and testing suggestions. She said their acceptance of Commissioner's Porter's comments that the area should be considered a cemetery first, and a garden second, are the basis for her response. She reiterated they are willing to do everything staff is recommending. Many of the mitigations go above and beyond the recommendations in the report from the Mission's consultant (Architectural Resources Group, Inc.), and they all mitigate potential impacts to a level of insignificance per CEQA. In response to the suggestion for a monument in the garden itself, the Mission is open to the implementation of a thoughtful interpretive tool that is accessible and respectful of the area as a cemetery, and they would bring the specific plans for this back to the Commission within 12 months. Regarding the suggestion of archaeologically testing the Mission complex, the Mission has discussed the idea of ground sensing radar with the Juanenos in the past but they expressed concerns. It is not an accurate tool, is usually used if there' is uncertainty about what is there, and she questioned what purpose the testing would achieve. She reiterated that the Mission and Church have accepted for the record that the project area is a cemetery and they are willing to do everything to mitigate the project to a level of insignificance. Ed Connor spoke on the testing and financial penalties. He stated the Mission should not accept a requirement for archaeological testing or penalties. The Commission has had no input from the City Attorney regarding such impositions, staff is not recommending them and penalties are . not in the purview of the Commission. He counseled against the Commission placing such requirements on this project when no ground sensing radar testing or financial penalties were placed on the JSerra project which was a clearly recognized Juaneno village site. He referenced a three foot cap being required for the JSerra project, as well as historic and current photos submitted by the Mission which show that a similar "capping" has occurred at the project area over time and it is sufficient to be respectful. The Mission is publicly acknowledging tonight what they haven't before - that this area is a cemetery; he questioned whether it matters if there are two or 2,000 people buried there, and said ground sensing would serve no purpose there or anywhere else in town. They have agreed to the conditions, and removal will be financial penalty enough so there is no need for assessing financial penalties. There is no nexus for further penalizing the Mission. Chair Tryon said that he has been told there are burials throughout this entire valley from the pre -historic and historic Juaneno rancherias. He supports the Mission's request for time. to bring back the plans for the interpretive tool. Commissioner Siegel said the point is being missed .and that the penalties are intended to make sure that this never happens again in this community. To allow the Mission to avoid punishment, she questioned what would stop any other developer Dave Adams, City Manager 10 August 13, 2008 from doing work without permits. The City did not know this project was occurring until much later and needs to be protected from this type of occurrence. The Mission needs to be held accountable for not coming to the City for permission first. Commissioner Porter questioned staff about the Commission's purview. Staff responded that final action on the project is in their purview subject to appeal to the City Council. The Commission .can place conditions of approval. There are code sections relating to fines for code enforcement actions, but the current project consideration is not a code enforcement action under the Municipal Code. The City can impose double fees on post hoc permits. Various laws stipulate penalties that would be adjudicated by a court. A response regarding the City's and the Commission's authority to impose penalties or other actions to discourage similar future occurrences should be referred to the City Attorney's office. Commissioner Porter moved, and Commissioner Siegel seconded, adoption of a resolution to approve SPR 07-001 with modified conditions of approval 10c, 12, 13 and 14 as set forth below, subject to Resolution No. 08-5-29-1. The motion was approved by a vote of 3-0-2 (with Commissioner Banda and Vice -Chair Nunez recorded as abstentions). The following conditions were modified to read in their entirety as follows 10c. *The turf shall be removed in a manner that causes the least disturbance to the ground and may be replaced with a drought tolerant turf, decomposed granite or other native or California -friendly species approved by the City. 12. *Water delivery systems shall be programmed to be as efficient as possible and shall avoid over -watering, thereby protecting archaeological resources and adobe foundations. Prior to approval of the final inspection, the applicant shall schedule a separate inspection with the City's Water Conservation Coordinator to review the operation of the irrigation'system to ensure the intent of this condition is met. 13. *Within one year of the effective date of this Resolution, the Mission shall submit for review and obtain the approval of the Cultural Heritage Commission for an interpretive tool (which could include but is not limited to a monument, or plaque, and/or enhanced audio tour or other tool) located within the project area that appropriately commemorates the area as a cemetery. 14. *As volunteered by the applicant, and accepted by the City, the Mission will work with members of the public wishing to visit ancestors that may be buried in the cemetery, to set visitations by appointment, as reasonable and requested for with reasonable advance notice. This opportunity for access Dave Adams, City Manager 11 August 13, 2008 presently exists and this is not a change in policy. However, to date access has. not. been requested of the current Mission administration. Should it be requested, Mission staff will work accordingly for the benefit of the community. Specifically, the applicant commits to having the date of December 8, each year, as an access opportunity to the rectory garden area with such hours of access posted and publicized by the Mission in its bulletin. [As noted in the resolution, (*) denotes environmental mitigation measures. These. conditions were originally and remain mitigation measures.] Commissioner Siegel questioned if another motion could be made to recommend penalties. Chair Tryon allowed Greg Weiler to briefly address the Commission again: Greg Weiler on behalf of the applicant stated for the record that the Mission has never made any acknowledgement whatsoever of any wrongdoing. The Mission takes exception to the fact that any penalties might be recommended by the Commission without due process, without any evidence of wrongdoing, and that are clearly outside the Commission's purview to even recommend. The Commission discussed encouraging the Building Division to levy the double fees on the permits. In response to staff's suggestion, the Commission directed staff to request that the City Attorney provide a memorandum to the Commission about the City's purview and authority to impose penalties. INFORMATION ITEM None. COMMISSION/STAFF COMMENTS Staff announced that the City of San Clemente and City of San Juan Capistrano are partnering with the California Preservation Foundation to sponsor a historic preservation training workshop and walking tour on the Mills Act. It will be held all day on Monday, June 23, 2008 at the San Clemente Community Center and staff encouraged the Commissioners to register. Speakers will include Teri Delcamp and staff representatives from San Clemente, San Diego, Riverside and the Orange County Tax Assessor's office.. Staff informed the Commission that the Public Works Department is carrying out an emergency sewer line repair at the Bias AguilarAdobe. The existing line was determined to be severely deteriorated. They are putting a sleeve inside the line under the adobe instead of replacing the line to minimize the ground disturbance. The ground excavation that is needed at two locations is being monitored by an archaeologist and a Native American observer. Dave Adams, City Manager 12 August 13, 2008 Staff informed the Commission that a recommendation by Russell Beatty, ASLA, in his historic tree report on the Roger Y. Williams/Swanner House was recently implemented by the Public Works Department. Specifically, the rampant bougainvillea growing up the side and into the crowns of the two historic walnut trees has been carefully removed, leaving a trunk stalk of each bougainvillea trained over to the adjacent fence instead of the trees. The intent is to allow for light and air to foster the continued growth of the walnut. trees, which pre -date the house and likely date from Judge Egan's ownership of the land in the late 1800s. The main tree at least still produces walnuts each year and staff hopes the trees will continue in better health for years to come. ADJOURNMENT Chair Tryon adjourned the meeting at 7:20 p.m. cc: Cindy Russell, Assistant City Manager Grant Taylor, Assistant Community Development Director Teri Delcamp, Historic Preservation. Manager Christina Gomez, Administrative Specialist CHC Members CHC Minutes File Douglas Dumhart, Economic Development Manager Omar Sandoval, City Attorney