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HomeMy WebLinkAbout17 - Planning Commission Agenda - 07-21-2005CITY OF NEWPORT BEACH Agenda Item No. 17 00 July 26, 25 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Planning Department Patricia Temple, Planning Director ptemple @city.newport- beach.ca.us SUBJECT: Planning Commission Agenda for July 21, 2005 Report of the actions of the Planning Commission Regular Meeting: Item 1 Item 2: Item 3: The minutes of July 7, 2005 were approved as corrected. (4 Ayes, 1 Abstain, 2 Excused) Barry Saywitz Residence (PA2005 -085) 5005 River Avenue This item is an appeal of the Zoning Administrator's approval of Condominium Conversion No. 2005 -004, Parcel Map 2005 -021 and Modification Permit No. 2005- 042. The applications would authorize the conversion of an existing duplex into a two -unit condominium complex allowing individual sale of each unit. Also included in the application is a request for a modification to the Zoning Code to allow the installation of a partition wall to establish two single -car garage parking spaces with substandard width. This hearing was the third scheduled hearing of this appeal. The Commission was informed that there was a possibility that the appellant might withdraw the appeal, based upon a voice mail message left for staff earlier in the day. However, the Planning Commission was prepared to take action on the item, even though the appellant was not present. This item was denied without prejudice and is subject to appeal by the public or City Council. (5 Ayes, 2 Excused) Hoag Memorial Hospital Presbyterian One Hoag Drive This item is a request to approve a traffic study prepared pursuant to the City's Traffic Phasing Ordinance (TPO) for the development of 130,000 square feet of outpatient medical office space on the Hoag Lower Campus. Discussion on this item centered on the intersections which are required to be assessed for the purposes of the Traffic Phasing Ordinance, which are limited to certain intersection within the City; and the Environmental Document used to support the approval. This item was approved and is subject to appeal by the public or City Council. (5 Ayes, 2 Excused) July 25, 2005 City of Newport Beach City Council 3300 Newport Boulevard Newport Beach, CA 92663 Re: Planning Director's Use Permit 2005 -005 Ladies and Gentlemen: "RECE D AFTER AGENDA PRINTED," - to " �t7 21562 nd Street Newport Beach, CA 92663 Advance by email On Thursday July 21 the City's Planning Commission upheld my appeal of the above - referenced use permit. I am writing to request that City Council not use its authority to appeal the Commission's decision when it meets tomorrow, as doing so will cause more time and expense of Planning Department staff. In the event of further appeal, I will be compelled to request that the Planning Department address certain factual errors and omissions in its staff report to the Commission. Certain of these errors and omissions were called to the City's attention in my July 21 letter to the Commission, attached for your reference. Addressing these errors and omissions is not a matter of minor clarification, but involves key assumptions that contributed to an analysis of the Zoning Code which led to certain findings, conditions, and recommendations. Using the actual facts will necessarily lead to different findings, conditions, and recommendations, to the detriment of the applicant's request. Additionally, the applicant's testimony to the Commission contradicts his previous representations with respect to intended use of the proposed 2 "d story office. Prior to the Commission hearing, the applicant led the City to believe that the 2 "d story office would be used only for the on -site restaurant and the neighboring Spaghetti Bender restaurant. However in his testimony to the Commission, the applicant admitted to the City what lie told me in our meeting several months ago: that lie intends to use the proposed 2nd floor addition as an independent office use to conduct other business and investment activities. This is not a trivial matter. Based on the applicant's prior misrepresentation, the Planning Director's approval of the use permit included a condition that the 2nd floor addition be used solely for the on -site restaurant. Both Planning Department staff and the Commission spent significant time on this issue. Even if, contrary to his testimony, the applicant agreed to use the office Note this condition was not included in the Planning Director's approval of the use permit, though it was implied. In response to my appeal, the staff report to Commissioners noted that failure to include such a condition was an oversight, and a specific condition limiting this use was proposed. Potential problems and restrictions relating to the 2 "d floor office space have been a recurring theme throughout (1) City correspondence to the applicant, (2) the Planning Director's approval of the use permit, (3) the staff report to the Planning Commission, and (4) lengthy deliberation by the Planning Commission. City of Newport Beach City Council July 25, 2005 Page 2 of 3 solely for on -site business, the Commission could not come up with a reasonable way to ensure the 2 "d story addition would not be used as an independent office use in the future, whether by the applicant or otherwise. In light of the applicant's testimony and the Commission's deliberations over the difficulty in enforcing restrictions on future use of the 2" d floor office, on further appeal the City would need to re- evaluate the permit application as if the 2 "d floor office were independent office use. As an independent office use, the 2 "d floor addition would represent an intensification of use and would require additional parking which cannot be provided at the site. As a result the proposed project would be even more inconsistent with the Code. In addition to what was revealed in the applicant's testimony, I again refer to you my July 21 letter to the Commission for other factual errors and omissions in the staff report. An appeal to City Council will necessitate further time and expense of the City to prepare a revised staff report to City Council. I submit that addressing all errors and omissions would result in findings and recommendations that would only weaken the applicant's grounds for appeal. The two dissenting Commissioners based their vote on the premise that if the applicant were not allowed to build a second story, the City would risk development never occurring at the site or in the neighborhood. I respectfully disagree. At the time the applicant purchased the property in 2002, it was 100% occupied and providing goods and services to the community. Since then the applicant refused to renew prior leases and the property is now vacant with the exception of the Kind Grind. Furthermore, under his ownership the applicant himself has allowed the property to become an eyesore. The need for redevelopment is the applicant's strongest argument, yet the applicant himself is responsible for the current state of the property. This is a manufactured scare tactic. Newport Shores is a prosperous community with soaring home values, and residents with disposable income to spend on goods and services. Visitors come from near and far, whether for a quick surf, a day trip to the beach, or a weekend getaway or vacation staying at area hotels or with friends or family. Businesses succeeded at the property prior to the applicant's ownership, and it has the potential to flourish without a 2nd floor addition. The applicant's failure to properly maintain and operate his own property should not be rewarded by the City. The Planning Commission made a good decision. Again, I respectfully request that City Council not use its authority to appeal the Commission's decision, at further taxpayer expense. To protect my property rights I've been forced to spend considerable time and energy to call attention to the proposed project's nonconformity with the Code. Meanwhile the applicant has shown disregard for the City's time and resources by way of his misrepresentations. The burden should be placed solely on the applicant to prove why the Commission erred. If the applicant 21562 "d Street Newport Beach, CA 92663 July 21, 2005 City of Newport Beach Planning Commission Advance by email c/o Planning Director Patricia Temple Advance by email 3300 Newport Boulevard Newport Beach, CA 92663 Re: Planning Director's Use Permit No. 2005 -005 Ladies and Gentlemen: 1 apologize for this letter at the 1 Ith hour, however just yesterday 1 received the staff report to the planning commission, as well as a copy of a letter sent by the applicant to neighbors in the community (copy attached). In addition to my general thoughts on the matter, certain issues in this new correspondence should be addressed. 1 have done my best to keep my comments here brief and to the point. My property is the nearest residential lot to the site of the proposed project, and therefore bears the brunt of any negative impact resulting from increased intensity commercial use. 1 purchased my property with knowledge of the nearby commercial use, but based on the zoning code it was reasonable to expect that a two -story commercial property would not be built on the current building footprint. The code clearly would allow two -story residential, however that use would provide relief from the parking and traffic burden of a commercial use. Contrary to claims in the applicant's recent letter to the community, it is not only my personal concerns that are represented by my appeal. I've discussed the matter with many of my closest neighbors, who also are those closest to the project, and at least 37 households' in a two -block radius of the site believe that a restaurant is an acceptable use but, like me, question the need and desirability of a 2nd floor office. In his letter the applicant leaves my neighbors with the impression that it is my goal to stop his and any other development from ever occurring in the neighborhood. This is false, as my appeal simply asks for relief from further intensification. It asks that the proposed use be permitted without the 2nd floor addition, which is superfluous to running a restaurant. 1 discussed the proposed project with a restaurateur who operates a restaurant without an on -site office. 1 simply wish to see area property developed in such a way that it can be feasibly operated without causing undue harm to other property in the vicinity. Please see attached petition summary. City of Newport Beach Planning Commission July 21, 2005 Page 2 of 4 FAR The weighted FAR of the building, as currently approved, is 0.63, which is nonconforming to the code. This is confirmed by Senior Planner Javier Garcia's letter to the applicant on February 25, 2005. It is an important clarification to note the statement made in the staff report to the planning commission, that the existing restaurant and structure itself are not considered nonconforming, is factually inaccurate. A change to full- service restaurant will lower the weighted FAR to 0.49, but the 2nd floor addition will increase it back to 0.62, which exceeds the base development allocation of 0.50 for the proposed use. Nonconforming Structures and Uses With respect to expansion of nonconforming structures, the code states that no addition shall cause an increase in the structure's inconsistency with the regulations of the code. By changing the permitted use to full- service restaurant and not allowing the 2 "d story addition, the City would accomplish two of the three purposes of the nonconformity section, i.e. limiting expansion and bringing the property into conformity. On the other hand, allowing the expansion would cause an increase in the structure's inconsistency with the base development allocation prescribed by the code. Nonconforming Parking The staff report to the planning commission states that the site does in fact conform to parking, since a waiver was previously granted pursuant to the code. I submit that the changes requested in the new permit application would affect the conditions of approval of the prior permit, and therefore the application should be considered a new application, not an amendment, and any previously granted waivers no longer apply. This makes the site nonconforming with respect to parking. If the change to full service restaurant causes the site to be nonconforming only with respect to parking, the structure may be enlarged by more than 10 percent of its original gross floor area, only if all code required parking is provided, unless a waiver or reduction of the parking requirement is authorized by use permit. None of the conditions for parking modification or waiver are met by the project. Since we know from the City's traffic engineers that the proposed use will increase intensity of parking demand as compared to the previously approved use, the past waiver for parking should not apply and the code requirements for a parking waiver should be met if the building is to be enlarged by more than 10 percent. The staff report notes that parking demand will not be intensified, due to the atypical features of the prior take -out restaurant, specifically that it contained 29 seats. I reiterate a point made in the appeal: the prior take -out restaurant seldom, if ever, had more than a City of Newport Beach Planning Commission July 21, 2005 Page 3 of 4 few (say eight) dine -in patrons during dinner hours, and also provided delivery service. It is reasonable to expect that the new restaurant will be more successful in drawing dine -in patrons; indeed the applicant is counting on it for his venture to succeed. The staff report also notes that if the project is successful in drawing more dine -in patrons who drive to the location, their vehicles can be reasonably accommodated along the metered spaces on Coast Highway or the Spaghetti Bender parking lot. I respectfully disagree with staff on this point. The Spaghetti Bender parking lot is typically full during dinner hours, with overflow cars parking in the subject parking lot, the commercial lot across 62 "d Street, and residential streets. Furthermore, no enforceable reciprocal use agreement has been entered into that would ensure use of the Spaghetti Bender parking lot for a future property owner of the site. I have not reviewed the use permit for Spaghetti Bender, but I would venture a guess that it does not have excess parking capacity that would allow it to give up its own parking spaces to an adjacent use. I reiterate that parking could not be called into question with respect to conformance with the zoning code, if the structure were not being enlarged by more than 10 percent of its original gross floor area. Due to the addition a new parking waiver is required, and the conditions precedent for a parking waiver are not met by the project. Disallowing the 2 "d floor addition addresses this inconsistency with the zoning code. Enforcement The applicant has violated conditional use permits in the past, as evidenced by his violation of permit #2036, including hours of operation and the unauthorized outdoor dining area at the Kind Grind take -out restaurane. Indeed, as of July 20, 2005, the unauthorized outdoor dining area was still in use. Also, in the applicant's letter to residents this week, he still discusses using the 2"d floor office for Spaghetti Bender. Based on past and present behavior the applicant's willingness to comply with the conditions of a use permit cannot be presumed a priori. Approval of the use permit notes that the 2nd floor is not an independent office use, however there is no reasonable method to evidence compliance with this requirement. The exterior stairway and office entry make the proposed addition more conducive to independent office use. If a violation of the condition were found, would the City revoke the permit and cause the 2"d floor to be destroyed? If the property changes hands or another use is proposed in the future, the 2 "d floor addition could result in further nonconformity. Future proposed uses could include independent office use on the 2 "d floor. causing increased parking demand. If the 2 "d story is built, there will be increased actual potential for the site to contravene the traffic and circulation purposes of the FAR section of the code. As noted in a February 25, 2005 letter from Senior Planner Javier Garcia to the applicant. City of Newport Beach Planning Commission July 21, 2005 Page 4 of 4 Approval of the permit would not only allow conditional nonconformance with base development allocation, but would practically guarantee that the property will never conform, while introducing potential for further nonconformance without any reasonable method for abatement. The permit will be very difficult if not impossible to revoke. Noise and Hours of Operation Residents in the vicinity are already subjected to noise at night from the surrounding commercial uses, namely Spaghetti Bender and the two hotels /motels. The applicant's stated goal is serve dual- income working families in the neighborhood, and surely those patrons can finish their dinner by 10 p.m. Conclusion The downside to commercial use in the vicinity is increased traffic and parking demand. The downside to residential use is increased building density, however this is balanced by reduced traffic and parking demand. The proposed higher- density commercial building will be detrimental in that property in the vicinity will suffer the worst of both worlds: high intensity traffic and parking demand associated with commercial use, and high intensity square footage and building mass. Property in the vicinity should not be subjected to both detriments. I respectfully request that the planning commission use its discretion to disallow the 2 "d floor addition, because of the undue harm that would be caused to properties in the immediate vicinity, and because the proposed project should be feasible without a 2 °d floor office. I also request that the hours of operation not be increased beyond 10 p.m. Thank you for your consideration of this matter. Sincerely, Nicholas A. Hamilton cc: Jim Campbell, Planning Department (JCampbell @city.newport- beach.ca.us) City Clerk (LHarkless @ city.newport- beach.ca.us) enclosures 61 st Street Individual Support Households Canvassed Household Support PETITION SUMMARY Entire 200 block - odd numbered houses 10 10 80% support appeal on even 62nd Street From Newport Shores Dr. to 322 (even side) and 347 (odd side) Individual Support 28 Households Canvassed 36 Household Support 21 58% support appeal Prospect Street From Newport Shores Dr. to 400 (even side only) Individual Support 9 Households Canvassed 23 Household Support 30% support appeal Other Newport Shores Chance meeting in neighborhood Individual Support I Households Canvassed I Household Support Total: Individual Support 48 Households Canvassed 70 Household Support 37 100% support appeal 53% support appeal Notes: • Houses were canvassed Saturday July 16 through Thursday July 21, 2005. • The petition asked residents to attest to the following: "I hereby oppose the approval of Planning Director's Use Permit 2005 -005 for the reasons outlined in the appeal filed by Nicholas Hamilton." • Vacant homes were not canvassed, including two on 62nd and one on Prospect • As of July 21, Robert Reyes of 219 62nd has not signed the petition as he has been out of town, however his support for my appeal is evidenced by his letter to the city opposing the project. so he is included in the household support for 62nd Street. • Certain homes were not canvassed because they had already made their opposition to my appeal known. In these cases the household has been included in "households canvassed ". The total number of houses not canvassed (but included in the total canvassed) due to known opposition to my appeal is three, all on Prospect Street. • Several residents were unreachable, in which case a memo was lefl explaining my appeal. These households are included in the "households canvassed" total. It should not be presumed that an inverse number of households oppose my appeal as compared to those who support it. Of the households I spoke to, I can remember no more than ten who either opposed my appeal or wanted to stay neutral. • I did not canvass more homes because I simply ran out of time. But those canvassed are closest to the project. • This is admittedly an unscientific exercise, however it evidences significant public support of my appeal. • A copy of original signatures is available at the Planning Commission's request. • While not scientifically perfect, this analysis was conducted in good faith. Dear Newport Shores resident, My name is Michael Hoskinson, you know my family and I from the Spaghetti Bender restaurant; we have owned, operated and been your good neighbor at the "Bender" for over 36 years. A situation has come up in our neighborhood and I wanted to inform you of it and ask for your help. Over 3 years ago, I purchased the building directly behind Spaghetti Bender. We were having many problems with the owner and tenants, after one incident where my Mother was physically threatened by one of the tenants I knew I had to purchase the building, which I did shortly afterwards. After purchasing the property I set forth to design and build the one thing the neighborhood has been lacking: a small neighborhood Mexican restaurant with office space for itself and Spaghetti Bender. Since then, I have had the building completely redesigned into a beautiful building that will be the best commercial development the Shores has ever seen. I have worked with the City's Planning department to tailor the development so that it will minimize the impact to the neighbors and maximize the restaurant and office space. Within the last month I was at the end of the appeal period for the Conditional Use Permit, this is the City process that permits the concept and allows it to move forward. My closest neighbor, with whom I had met in May to explain all the work I had done on his behalf to minimize the impact that the Thai Wave previously had on him, chose to appeal my project. He is asking the Planning Commission to deny my building project. So what is the problem? At the Planning Commission meeting to be held on Thursday, July 21" At 6:30 PM, the Planning Commission can choose to uphold the neighbor's appeal and stop my project and all the work I have put into building a very quality development for West Newport, all for the fears of one neighbor. Why should you care? For many reasons that I will share with you. I ) My project places no negative demand and will in fact have a very positive impact on our neighborhood. In his appeal, my neighbor has stated his fears that my restaurant will create tremendous parking problems. To alleviate this possibility I will utilize my building's parking along with Spaghetti Bender's. Spaghetti Bender is only open at night so there will be no parking issues during the day. As is true with other local restaurants, the bulk of business at night will come from the surrounding neighborhood keeping parking problems to a minimum. 2) In my plan, 1 have removed one entire business, the Nail Salon. This business had 4 stations for nail and hair customers and a separate room for massage. 1 have used this space to build a kitchen that will satisfy the Health Department requirements and benefit my guests and employees. 3) The Thai Wave restaurant had 29 seats, Salud restaurant will have 25. 4) Increased demand for my office expansion will be zero, all occupants of the proposed office currently park and work at the location. 5) There are 8 public parking spaces on PCH within 1 block. 6) The Newport Shores commercial strip has been underdeveloped and dated for many years. The only significant investment and the Shores has been The Best Western hotel 6 years ago. The danger here is that, to halt my project will chill any development in the foreseeable future, no one will choose to invest in an area that the most likely candidate for approval, the one with the reputation of long service, the one with the most parking and appropriate type of development to service the neighborhood, was turned down. It has been suggested that the best way to serve the Shores is to let the commercial business owners fail so that a "developer" will swoop in and build a new mall with underground parking; that is surely a fantasy that will never happen in our lifetimes. I believe the answer is to support development that is appropriate in well - thought concept and execution. 7) West Newport has grown tremendously over the years but services have not followed. 1 believe my project will increase property values and spur redevelopment of other commercial buildings. 8) The NB Planning department has held me to strict guidelines and been tough but fair in its dealings with me. In his appeal, my neighbor implies that the Planning department made many mistakes in its approval of my project, nothing is further from the truth; with their tough requirements of me they have ultimately acted well on your behalf as a resident of the Shores. 9) 1 have the support of the majority of both the West Newport Beach Association and the Newport Shores Community Association. 10) West Newport residents have suffered from a lack of services. Today, many residents are extremely busy and need restaurants such as I propose to relax after work, dine in and serve their To Go food needs. Our area needs businesses such as what I propose to help create a "sense of community ", a meeting place where residents can come and enjoy a fine meal close to home 1 1) My neighbor is worried about what might happen, he believes that his fears will become reality so he asks the Planning Commission to stop my project based on those fears. My restaurant and office will, in fact, have the opposite effect. A new place to dine for the locals, a new working space for people that have had virtually no space for 36 years; all with no adverse affect to the local population I believe, and it has been told to me by people with experience that the one element for success in this process is informed locals speaking their minds. if you support growth and services in our area 1 would welcome your help in the following ways: I ) Please make your opinion known to the Planning Commission by coming to the meeting on July 21" and speaking, there will be an open forum after the Appellant and I speak. This will have the biggest impact by far 2} Our Councilman, Steve Rosansky, would appreciate a call or email letting him know how you feel about this and other future developments in our part of Newport Beach; it is very helpful to him to know how his constituents feel on these important issues. His contact information is at the bottom of this letter. 07/20/2005 29:06 FAX Q009 In closing, I want to thank you for taking time to read this message and for supporting my family and I for over a third of a century; we have had a great life serving the community and are looking forward to continuing that service with our new venture. My grandfather, Papa Lorenzo, was famous for making people feel as though his restaurant was their home; 1 look forward to continuing that great tradition at my new restaurant- 1 truly believe that the future of progress in the Newport Shores commercial strip depends on the outcome of this approval; what property owner or developer will waste their time or money if they see the difficulty that lies ahead for them. I have put up a website at www.salud4food.cum, please visit it for a picture of the current building and arendering of the finished building. 1 would be very happy to meet with you to share my building and business plans if you would like more information, please contact ntc at the locations below. Yours truly, Michael Hoskinson 714- 812 -2266 mike @ spaghetti bendgr.cgnt Councilman Steve Rosansky parandigm Cal aol.cont (949) 631 -9975 Newport Reach Planning Commissioners Larry Tucker t @o till.cont (Outgoing Chairman) (949) 251 -2045 Michael Toerge strataland@carthliuk.net (Current Chairman) (949) 675 -9312 Jeffrey Cole iwcole@(rarnrnellcrow.con (949) 477 -4710 Barry Baton caton727 @earthlink .net (949) 760 -1691 Bart McDaniel cmcdanielwn�fullertoncb.com (714) 447 -6251 Edward Selich (Outgoing Commissioner) (949) 723 -6383 Robert Hawkins rhawkin.00cardilink.nel (949) 650.5550 Michael Henn mhentt5270a shcg4jhat _net (626) 256 -6870 07/21/2005 02:58AM