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Councilmember Narum asked and Mr. Otto confirmed that no windows exist or are proposed on the western elevation of the residence, but that there are 4 new second floor windows proposed on the east side of the home. Vice Mayor Brown asked the City Attorney to comment on the potential for a tie vote. Mr. Lowell explained that in the event of a tie vote, no action would be taken by the Council and the Planning Commission's ruling would stand. Vice Mayor Brown opened the public hearing. Elise Balgley, legal counsel for the Kiziloglus, presented a brief project timeline. She stated that her clients submitted an Administrative Design Review application for their project in January 2015 and staff recommended approval of the project as designed with only standard conditions of approval. Notice was given as required to all surrounding property owners and the Cummings requested a formal Zoning Administrator hearing due to concerns over the balcony portion of the proposed plans. At this March 10th hearing, the Cummings articulated concern that the balcony would interfere with the privacy of the property and the Zoning Administrator granted approval of the application in its entirety subject to a conditional vegetative barrier. This new condition was to be imposed if both parties were in agreement. The Cummings appealed that decision to the Planning Commission, who subsequently disallowed the balcony portion of the project and established Condition of Approval No. 7 requiring that certain particular vegetation be maintained on the applicant's property. She stated that photographs clearly indicate that existing improvements on both the subject site and the Cummings' property are already in close proximity, thereby significantly degrading any sense of privacy regardless of whether the proposed balcony is allowed. At the Planning Commission hearing the Cummings expressed that they did not wish to feel the presence of people lingering in their backyards, which she felt was not a reasonable expectation for one to have under existing conditions. Furthermore, the proposed balcony is relatively small and not located such that it would be feasible for occupancy by a significant number of people. She stated that the Cummings also argued that to allow the balcony would set a poor precedent; however, the precedent to allow the construction of second-story balconies has already been set and is evidenced by 5 similar rear-facing balconies within a short distance of the subject site. The city has adequate procedures in place to evaluate any other requests for construction of a balcony on their own merits if such a request would exacerbate privacy concerns, but there is no such valid concern here. Ms. Balgley stated that Condition No. 7, as proposed by the Planning Commission, is an unfair burden on the applicants' property and could potentially reduce its value. Given that the Cummings objected only to the balcony portion of the project and there is no legitimate change to existing privacy conditions with or without the balcony, there is no cause to burden the property in such a fashion and the condition should be removed in its entirety. She stated that this condition was never agreed to by neither party, nor do the meeting minutes even clearly indicate that the condition was approved by the Planning Commission. She said that the interaction of both staff and the Cummings throughout this process have distressingly hinted at bias against the applicants due to their ethnicity and perhaps their status as relative newcomers to this community. Staff contacted the Cummings multiple times to verify their wishes with regards to the project, but no such contact was made with the applicants aside from an email urging them to accept the Commission's decision and not pursue this appeal. Following the Commission's hearing, the applicants have been told to sell their home and subjected to an incident in which Mr. Cummings vigorously kicked the front door to their home. The Commission's discussion revealed a thinly veiled attitude that the applicants should somehow be treated differently from anyone else and it was also hinted at in those comments that at some point someone "creepy" or "strange" might be living on the property. She stressed that the applicants should be treated as upstanding members of their City Council Minutes Page 5 of 14 August 18,2015