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HomeMy WebLinkAbout10-17-2016_HO NEWPORT BEACH HEARING OFFICER MINUTES 10/17/2016 NEWPORT BEACH HEARING OFFICER MINUTES 100 Civic Center Drive, Newport Beach Corona del Mar Conference Room (Bay E-1St Floor) Monday, October 17, 2016 REGULAR HEARING 2:00 p.m. 1. CALL TO ORDER—The meeting was called to order at 2:01 p.m. Present William B. Conners, Municipal Law Consultant, Hearing Officer Staff Present: Brenda Wisneski,AICP Deputy Community Development Director II. PUBLIC HEARING ITEM(S) ITEM NO. 1 Abatement Period Extension (PA2016-133) 123 Marine Avenue Council District 5 Hearing Officer Conners introduced himself and provided a brief personal background. The public hearing concerned a request to extend the required abatement period as set forth in Newport Beach Municipal Code Section 20.38.100. A commercial structure located at 127 Marine Avenue extended onto the adjacent residential property located at 123 Marine Avenue. Because the structure crossed the property line, it was considered to be an existing, nonconforming use. As specified in the Code, in order to remain beyond the one-year abatement period the applicant must be granted an extension to bring the property into compliance. The Zoning Code set forth issues to be considered in deciding whether or not to grant an extension. While he had been appointed by the City of Newport Beach to act as Hearing Officer, he would not favor the City. The decision would be based only on the evidence presented at the hearing. He opened the public hearing and provided an overview of his procedures and expectations for the hearing. Brenda Wisneski, Deputy Community Development Director, provided a brief project description stating that the City had been working with the property owner to resolve the nonconforming, nonresidential element located at 123 Marine Avenue. Deputy Director Wisneski identified it as a legal, nonconforming use. The property owner was required to eliminate the use within one year unless an extension of ten years was approved by the Hearing Officer. The applicant requested a ten-year extension, and staff supported the request. The current property owner obtained the property in 2012. The structure appeared to have been in place for several decades. In 2001, the City issued building permits for the encroachment area. The City's issuance of the permits indicated the City understood the use was in existence at that time. In 2008, the updated Subdivision Code precluded buildings from crossing property lines, which changed the circumstances of the existing structure. When the current property owner purchased the property in 2012, they were under the assumption that they had to purchase both properties because of the existing encroachment. Staff felt the property owner's significant investments justified the ten-year extension. At the end of the ten-year extension period, the property owner could request another extension; remove the improvements; or request a change in the land use for 123 Marine Avenue and merge the properties. Staff did not feel retaining the current situation would be detrimental to the neighborhood. Mike Sullivan noted Ms. Wisneski stated the City issued a permit for building maintenance. A permit for maintenance did not make the property permittable. There was never a building permit to allow the structure to exist. In response to Hearing Officer Conners' inquiry, Mr. Sullivan indicated he had read the building permit contained in the record. Hearing Officer Conners inquired whether the permit referred to a certain structure located half on one property and half on the other. Mr. Sullivan stated they needed to define whether the permit was to build the structure or to conduct maintenance. Page 1 of 9 NEWPORT BEACH HEARING OFFICER MINUTES 10/17/2016 Deputy Director Wisneski clarified that the 2001 permit was for improvements to the existing structure. From aerial photographs, it was apparent the structure was in place prior to that. The Director's Determination indicated the lack of permits did not mean a structure was an unpermitted development because of incomplete records. Mr. Sullivan felt that was erroneous because there was never a building permit that allowed construction of the structure. Staff made an assumption based on a faulty aerial photograph. He had lived next door to the property for 38 years, and the structure was not there in 1989. Hearing Officer Conners instructed Mr. Sullivan to ask questions rather than state his opinion. Peter Bergman requested clarification of staffs assumption that permits for maintenance of the existing structure meant permits for the building had probably been issued at some time. The fact that the City issued permits for maintenance meant permits were issued for the structure. Deputy Director Wisneski read the Director's Determination letter of August 30, 2016, regarding the inability to locate a building permit. Hearing Officer Conners explained that permits had not always existed for development. The 2001 permit described the work to be performed as remodel the rear entryway/door and drywall. In 2001, the building official reviewing the permit believed it to be correct. The 2001 building permit was entered in the record as a statement that something existed at that location prior to issuance of the 2001 building permit. Jim Mosher noted the staff report defined nonconforming use. The structure was nonconforming now because it was a commercial use on residential property. He inquired whether there was a time in Newport Beach when it was legal to build a commercial structure on a residential property. The staff presentation implied the extension was for ten years; however, he could not find ten years in the Code. He inquired whether the Hearing Officer had discretion to determine the length of an extension. Hearing Officer Conners reported the Deputy Director could recommend a time period for an extension. In response to Mr. Mosher's question of when did the Code change allow commercial uses on residential property, Deputy Director Wisneski stated the 2000 amendment to the Subdivision Code determined buildings could not cross property lines. In 2010, the Zoning Code was amended to require abatement of nonconforming commercial uses on residentially zoned properties. The Code specifically stated nonresidential uses located on residential properties shall be abated within one year. Suzanne Savary asked if legal approval of the shack had been made at any point prior to the recent renovations. Hearing Officer Conners reported there was no exact date. The Director's Determination provided dates at which time the Director believed requirements were met. He explained the purpose of the Director's August 30, 2016 letter. Robert Glushon, legal counsel for Marine Avenue neighbors, stated that in order to qualify as a legal, nonconforming use, there had to have been a point in time at which the use was legal. He asked at what point in time did staff believe the use was legal. Hearing Officer Conners read paragraph 3 of the Director's letter regarding permits issued and aerial photographs. To him, paragraph 3 meant it was a legal use at least in 2001, subject to proof to the contrary. Mr. Sullivan remarked that the area between the two buildings originated as a breezeway. The Hearing Officer had quoted the Director as saying the subject encroachment had been in place for several decades. Under the ordinance, the Director could make the determination. Applicant Dan Miller on behalf of the Owner, Charles Kinstler, agreed with staffs presentation. He was not aware of the encroachment at the time of purchase. He was told he had to purchase both properties in order to maintain the restaurant. He agreed that the use had existed for more than three decades. The food preparation and storage area was necessary for ongoing restaurant operations. He had to meet the City's condition of increasing food sales to 40 percent, and he had done so. The area for food preparation was a key component to the operation of the restaurant. Eliminating that area would not allow him to increase food sales. He requested an extension of ten years in order to evaluate the design. In addition, he recognized the challenges inherent in redesigning a building on Balboa Island. Page 2 of 9 NEWPORT BEACH HEARING OFFICER MINUTES 10/17/2016 Hearing Officer Conners inquired regarding the use of the residential property. Mr. Miller advised that a tenant occupied the second floor, and the ground floor was used for parking and storage. The front setback of approximately 60 feet from Marine Avenue was landscaped. In response to Hearing Officer Conners' questions, Mr. Miller and Charles Kinstler, property owner, provided the following information. The applicant clarified the floor plan shown on page 17 of the staff report. The property line extends through the structure, with three feet of the structure on each side of the property line. Doors are located on the left side and the middle of the right side. The door on the right, on the restaurant side, opens to a closet, which was probably a restroom at one time. The area to the left is used for cold storage currently. Two doors, on the left, open into the garage area, underneath the residential unit. That area is used for storage of dry goods. Restaurant storage was located on the residential property beyond the addition. A small closet on the alley side is not shown on the drawing. The closet was in existence when the applicant purchased the property. One door, not shown on the drawing, opens from the storage area directly into the restaurant kitchen. The large, unlabeled area on the drawing was the kitchen. The lines in the middle of the restaurant area represent a two-sided bar. Hearing Officer Conners believed, based on the drawing, the structure in question was located half on one property and half on the other property, but served the restaurant addition. Mr. Miller and Deputy Director Wisneski concurred. In response to Hearing Officer Conners' questions, Mr. Miller and Mr. Kinstler shared the following information. The area called the restaurant addition was used for cold storage, basic storage, recycling and standup refrigeration. Of the total 43-foot length, 15-17 feet was used for food preparation and the remainder for storage. The cold storage was crucial to the operation. The two doors at the bottom of the drawing opened to the parking area underneath the residence. The garage area was enclosed. No one parked in the garage area; the tenant, who parked on the street, used it for storage. A door to the far left opened into a pre-developed space used as a staff break area and for storage of linens. The area was not noted, but was part of the restaurant operation. In response to Hearing Officer Conners' inquiry, Mr. Miller agreed that the drawing found on page 17 depicted the area between the two properties, but did not depict anything else that would be on the residential property such as the closet or storage. In response to Ms. Savary's question, Hearing Officer Conners explained that the Director made the determination if a use was legal, nonconforming. A property owner had one year to abate a legal, nonconforming use unless he received an extension. The applicant had asked for an extension. Mr. Miller stated that he agreed with the staff report. The Hearing Officer offered the public to provide testimony. One member of the public, Mike Sullivan, spoke and stated that the garage was an illegal use of a residential property for commercial purposes. Using the garage for restaurant purposes was illegal, a violation of the Zoning Code and was not mentioned in the staff report. He found information on the City website indicating the City building inspector said there was a breezeway there. He remembered it as a breezeway to provide shade. In 2001, a building inspector visited the site and noticed they were enclosing the breezeway and had built a shed. In his opinion, it was malfeasance. Hearing Officer Conners advised that a lawyer could testify that in his legal opinion if there was malfeasance. Mr. Sullivan continued that a building inspector used the word "enclosing," noticed they had built a shed, and let it go. In response to Hearing Officer Conners' question, Mr. Sullivan could not provide the name of the building official. The Hearing Officer requested Mr. Sullivan provide evidence rather than opinions. One member of the public, Ellis Morcos, spoke and stated that the Director's Determination indicated the aerial photos supported the property owner's claim that the structure had been in existence for several decades. He had lived at 122 Marine for 4 1/2 decades, and that building did not exist. Hearing Officer Page 3 of 9 NEWPORT BEACH HEARING OFFICER MINUTES 10/17/2016 Conners remarked that photos from 2001 and 2014 allegedly depicted something that looked like a structure in that space. Mr. Morcos reiterated that there was no structure when he moved to Marine Avenue in 1969. The only encroachment was up to the property line; there was no shack beyond the property line. Mr. Morcos agreed with the Hearing Officer that a structure was located on the property now, at the beginning of 2016 and in 2011, and that in 2001 it was possible the owner filled in the two ends. Hearing Officer Conners reported he would not make a determination if a structure was there 30 or 20 years ago. Twenty or 30 years ago was not relevant because the current property owners did not own the property 30 years ago or 20 years ago. According to City records, it was possible or probable that something was put in that breezeway in 2001 and allowed to exist going forward. He was not making a decision today that it was legal or not. The Community Development Director stated in her opinion the structure was legal since 2001. The earliest record in the file, a photograph, appeared to show the structure was enclosed in 1989, but he was focusing on 2001. Mr. Morcos referred to an ordinance that a property had to be inspected upon transfer of ownership. Anything that was not conforming or permitted had to be removed. He questioned why the City did not enforce removal of the structure in 2012 when the property changed owners. Deputy Director Wisneski reported an inspection associated with residential building report could be waived by the property owner. To her knowledge, inspection of the property was not performed in 2012. Mr. Morcos believed the City had to inspect the property and anything constructed without a permit had to be removed or the owner had to apply for a variance. Hearing Officer Conners gave Mr. Morcos until the end of the hearing to provide a citation for his belief. The Deputy Director had stated on the record that the inspection was voluntary. One member of the public, Robert Glushon, spoke and stated that he represented the Marine Avenue neighbors. He provided a letter that set forth in detail the neighbors' position as to why the requested relief should not be granted. His letter included very specific California case law on the issue of what constituted a legal, nonconforming use. The burden was on the applicant to establish that the nonconforming use was ever legal. The applicant had not presented any evidence to show that the use was ever legal. The applicant was relying on an opinion or determination cited by Planning staff. The Hearing Officer was correct to focus on the 2001 aerial photograph. The law in 2001 did not make this use legal. The City could not have issued a legal building permit for the use shown on page 17 in the staff report. The use was not legal at that time. The City could not have issued a legal permit for the use in 1989. The use was not only crossing boundary lines but was also a commercial use on a residential lot. It was not legal in 2001 or 1989 or 1979 or 1969. No evidence had been presented as to when the use would have been legal. In order to be a legal, nonconforming use, the use had to be legal at some point in time. His letter cited case law that a legal, nonconforming status must be supported by validly issued building permits. In the absence of building permits, he would concede that the burden of making findings had to be supported by substantial evidence. He questioned whether the use was ever established in a manner that was legal, even without a building permit. The applicant had failed to show that the use when established was legal. The Hearing Officer could not rely on the 2001 building permit as to legal use if there was no evidence that the use was legal. Assuming there was a prior legal use, the extension being requested was not warranted. The floor plan on page 17 of the staff report was not adequate in that it was not dated; provided no detail, no doors, no features; and the property line did not extend all the way down. The applicant had not shown he could meet the finding as to cost and feasibility. The applicant had not established that the food preparation and storage area could not be moved within the restaurant property. Significant investment was mentioned many times in the staff report. Members of the public were concerned that staff was acting as a promoter of the request. Mr. Glushon reported that the Deputy Director stated staff had been working with the applicant to resolve the issue. The significant investment made by the applicant after 2012 was irrelevant with respect to legal, nonconforming use. Mr. Glushon stated that the owners knew of the encroachment at the time of purchase in 2012. Mr. Glushon hoped the Hearing Officer would find no substantial evidence to support a finding that there was ever a legal, nonconforming use. On that basis alone, the request should be denied. Hearing Officer Conners entered Mr. Glushon's letter into the record. Page 4 of 9 NEWPORT BEACH HEARING OFFICER MINUTES 10/17/2016 Mr. Sullivan stated in 2001 the building inspector went to the Village Inn. Hearing Officer Conners requested Mr. Sullivan identify the source of his information. Mr. Sullivan advised that he was viewing the City of Newport Beach's website, where he had searched permits by the address of the property. A building inspector went to the site in March 2001 and reported "the Village Inn built a breezeway attaching the restaurant to the house next door and are enclosing," present tense. "Also built a shed, working at night also." Mr. Sullivan felt the building inspector meant they were trying to complete construction prior to the building inspector's visit. Two months later, the remodeling report was submitted to complete the construction of a four-sided, illegal structure to connect a commercial establishment with a residential establishment including the shed. In response to Hearing Officer Conners' questions, Mr. Sullivan indicated two sides existed, and they closed both ends as stated in the building permit. The breezeway had two sides and a top but no ends. He did not believe the owners obtained a permit to enclose the ends, because the building inspector said they did it. There was a complaint when the owners did it the first time. Two months later, the owners decided to remodel the breezeway and applied for a building permit to make it legal. Mr. Sullivan believed the website information supported his opinion. Hearing Officer Conners clarified that Mr. Sullivan was offering his opinion of what happened based on what he read. Mr. Sullivan did not apply for the permit or inspect the work. Hearing Officer Connors stated that it sounded as though unpermitted work was discovered in March 2001. Two months later,the owners received a permit. Mr. Sullivan felt this was important because the Director concluded in the staff report that this was a legal, nonconforming use based on a 1989 aerial photograph. Hearing Officer Conners stated Mr. Sullivan had provided information that would cause him to request the Deputy Director to review the information, present it to the Director, and ask the Director if the information would have changed her opinion if she had had it at the time of her opinion. Nothing in the record mentioned the information Mr. Sullivan had presented. Mr. Sullivan stated that the Director stated in her declaration that she based her decision on information, which they now knew was erroneous. Hearing Officer Conners reiterated that the Director must determine whether the information presented by Mr. Sullivan would have changed her determination and he would not make a determination until he received that opinion from the Director. One member of the public, Suzanne Savary, spoke and stated that the 1989 photograph would have to be validated in some form in order to create an absolute choice to ignore Zoning laws. Neighbors felt the applicant was receiving unfair support from the City on the situation. They assumed the prior decision to give one year was to allow the owner to dismantle the property. Ms. Savary could not conceive of giving the applicant ten years unless it was an affirmation of the City to a resident who had shown a clear willingness to violate repeatedly and a pattern of what could be considered illegal behavior. Residents had issues with other behavior on the part of the applicant. She asked the Hearing Officer to follow the appropriate procedure, but question the photographs. She opined there was not a bit of evidence to support the legitimacy of the photographs, except possibly the 2014 photograph. A breezeway being turned into a structure was completely illegitimate when one was a commercial property. This was an illegal encroachment on a residential property to enhance the commercial property. Hearing Officer Conners reported the attorney made legal arguments that he would review. He would not take the attorney's arguments as truth just because the attorney said they were truth. It was disingenuous to say staff did something wrong in supporting their point of view. The aerial photographs showed the roof. Before and after 1989, there was a roof. The only evidence stating the ends were added was a 2001 building permit to construct the ends. The staff made a judgment call based on the evidence before them at the time. Mr. Sullivan advised that in 1989 there was no connection between the two properties from the front of the property to the alley, except for a 5-foot-square beginning of a breezeway. Mr. Sullivan clarified that the top was added in 2001, not 1989. Page 5 of 9 NEWPORT BEACH HEARING OFFICER MINUTES 10/17/2016 Hearing Officer Conners reported the relevant date was 2001. One member of the public, Peter Berman, spoke and inquired about the process for obtaining a Director's Determination for a legal, nonconforming use. After some discussion, Hearing Officer Conners determined Mr. Bergman wanted to know the events that precipitated the issuance of the August 30th letter. Deputy Director Wisneski explained that the area had been identified as encroaching onto residential property. Staff considered different approaches to resolve the encroachment. Because the structure was defined as a legal, nonconforming use subject to the abatement process, staff could identify a path that would allow the property owner to evaluate different options if an extension was granted. The Director's determination was addressed to Carol McDermott because she was the contact person for the pending application related to the property. The Director's Determination was included in a weekly staff action report, which was posted on the City's website and distributed to entities that requested the weekly reports. This specific Determination would have been included in the public correspondence on Friday of the week of August 30th. The public would have been notified of the appeal period at that time. Mr. Bergman asked if he would have received that report. Deputy Director Wisneski indicated individuals had to register for automatic email alerts and reports from the City. In response to a question from the public, Deputy Director Wisneski advised that this specific process did not require public notification. Hearing Officer Conners added that the legal requirement for notification typically was a notice posted in a common area at City Hall. Mr. Sullivan asked why the Director's Determination was not made on March 30th, when Staff knew the use was nonconforming, or in 2010 when the Code was updated. In response to the Hearing Officer's questions, Deputy Director Wisneski stated no action was taken in 2010, 2012 or 2014. Mr. Sullivan believed staff was notified. Hearing Officer Conners explained that there was no penalty for staff not exercising their discretion. The relevant fact was the Director's Determination that the use was legal, nonconforming. Ms. Savary requested the source of the three images be identified. There was no evidence the three images were accurate or legitimate depictions. In response to Hearing Officer Conners' inquiry, Deputy Director Wisneski reported the three aerial maps were created by the City. The City had hard copies of the 1989 and 2001 aerial photos. The photos were not modified. One member of the public, Jim Mosher, spoke and stated the Hearing Officer had been referring to the 2001 building permit. The staff report would have been enhanced had it shown some pictures from ground level. The picture in the upper-left corner on page 22 gave the impression that the structure was a breezeway between a residence and the Village Inn. The October 20, 2016 Planning Commission staff report contained a better rendition of the addition, in which a large part of the addition was not located between the residence and the Village Inn. It was more of a freestanding structure referred to as a shed. The 2001 building permit appeared to depict something slightly different. Hearing Officer Conners referred to page 22 which showed the roof and said, "new drywall over existing ceiling joists". Mr. Sullivan had indicated his belief that the ceiling joists were probably installed in March. The building permit was dated June 25, 2001. Somewhere it stated there were doors on the two ends. "Plan and Elevation of Door Replacement at the Village Inn" was the title. According to the June 25 permit, that was the drawing the building inspector at the time accepted and used. The drawing on page 17 was submitted by the owner/applicants. Mr. Mosher wanted to offer that the structure in question was not entirely between the residence and the Village Inn. It had a much bigger horizontal extent according to the site plan on page 109 of the October 20, 2016 Planning Commission staff report. Hearing Officer Conners felt the structure from page 109 was very similar to the one in recent photos. Page 6 of 9 NEWPORT BEACH HEARING OFFICER MINUTES 10/17/2016 Mr. Mosher recalled the Deputy Director previously indicated the applicant could request a second extension, such that abatements could extend in perpetuity. He questioned whether ten years was necessary to evaluate options for redesigning the structure. In response to Hearing Officer Conners' questions, Mr. Miller advised that the storage area on the residential property had not changed in size since he purchased the property and the tenant has stored items in the area formerly occupied by the tenant's car. The tenant's rental payment covered both the first and second floors. There was no written rental agreement with the tenant. In response to Hearing Officer Conners' inquiry, Deputy Director Wisneski reported storing commercial property on a residential lot would be legal if it did not infringe upon the typical use of the residence and that no commercial business was occurring on the property. Such storage did not require a permit. Mr. Sullivan advised the current owners used the space as a workstation. He could hear noises from the area in his home. Hearing Officer Conners recalled the applicant stated they were using the space for food preparation. Hearing Officer Conners questioned whether the current use led to harm of the public. One member of the public, Lynne O'Brien, spoke and stated that some noisy construction occurred in the structure in the spring. The Village Inn's original address was 1309 Park Avenue, but records for the address no longer existed. The current business was a nuisance and needed additional space to expand. The commercial property was listed as residential. The owners could develop the residential unit as part of their business. Another report listed the 200 and 300 blocks as commercial. The 100 block was listed as residential. Someone should decide if it was a residential or commercial property. Hearing Officer Conners reported 127 Marine Avenue was zoned commercial. 123 Marine Avenue, where the encroachment occurred,was zoned residential. One member of the public, Richard Salmonson, spoke and stated in July 2001 an electrical and building permit was submitted. On page 22, a stamp from the plan checker stated City of Newport Beach encroachment permit shall be obtained for all work within City easements and right-of-way. The Hearing Officer clarified that this was not a City easement. Mr. Salmonson asked if ingress and egress through the public alleyway was relevant. Hearing Officer Conners felt everyone had some kind of exit onto an alleyway. Mr. Salmonson inquired about the application of fire standards to only one entrance/exit. The Hearing Officer indicated the Uniform Building Code in existence when the structure was built would be applicable. Mr. Salmonson questioned whether the attachment to the commercial building and the 2001 permit would affect the standards applied to the building. Mr. Salmonson stated that Mr. Sullivan had raised the valid issue of what occurred in 2001. The attorney for the residents had raised the issue of whether the use was legal or not legal in 2001. The answer to that question would determine the direction for the abatement issue. One member of the public, Tom O'Brien, spoke and stated that the applicant wanted time to mitigate or fix the issue. He asked who would decide the amount of time the applicant would be granted and on what grounds would they do so. Hearing Officer Conners explained that the hearing would end in a decision. That decision would lead the process in a certain direction. Someone could appeal the decision to the City Council. Ultimately, the City Council would decide the issue if appealed. If Mr. Sullivan's point did not impact the Community Development Director's decision, then the process would proceed with the facts in evidence. The decision would be supported by the facts. As the Hearing Officer, he would review the law and facts in making a decision. Carol McDermott stated she had been working with the Village Inn to identify solutions to the issues that had been raised. As part of the process, the community indicated it did not want mixed use on the 123 Marine Avenue parcel. A lot line adjustment did not resolve the problem. Moving the kitchen to the second floor was not feasible. During a ten-year extension, the applicant could attempt to identify ways to modify the kitchen; determine whether a zone change, General Plan amendment and LCP amendment were logical; or identify other factors that were feasible and acceptable to residents. If detailed drawings would aid the Hearing Officer, they could prepare them. The Hearing Officer indicated he had entered the floor plan referenced Page 7 of 9 NEWPORT BEACH HEARING OFFICER MINUTES 10/17/2016 from the October 20, 2016 Planning Commission report into the record. The plans did not show a second floor on the building. The drawing that was part of the 2001 permit provided little detail. Ms. McDermott suggested the second floor was not shown on the building permit because the permit was not related to the second story. In response to Hearing Officer Conners' questions, Mr. Miller reported the second floor over the restaurant contained a two-bedroom apartment. The restaurant offered live music. The applicant's family members stayed in the apartment. The apartment also contained office space. The live entertainment could not be heard in the apartment. Live entertainment consisted of three-piece bands and acoustic guitarists. The bands did not include drums. Hearing Officer Conners requested the applicant submit a complete floor plan of the business side including all floors and dimensions of the existing space; photos showing all sides of the breezeway taken from the street and from the alleyway; a copy of the 2012 purchase agreement(s) for 123 and 127 Marine Avenue; and copies of real estate flyers and/or multiple listing descriptions for both properties. If members of the public wanted copies of that information, they should request them from the Community Development Department. The hearing would remain open until such time as he received all the requested information, including information from the Community Development Director. Mr. Glushon asked if members of the public could provide supplemental information. The Hearing Officer suggested a ten-day period for the community to respond once he had received the requested information. Ms. O'Brien clarified her comments that the kitchen could be moved to the ground floor and the second floor could be opened for dining. Hearing Officer Conners stated Ms. O'Brien raised the issue of the second floor. Ms. Savary remarked that in 2009 the City told her she had to maintain a 5-foot setback between her property and the neighbor's property. The Hearing Officer recalled the Deputy Director's comments that at one point in time encroachment over the property line was allowed. Ms. Savary expected the building would be brought into compliance with the current Code when it was sold. This situation would make neighboring properties less desirable as residential rentals. Mr. Mosher noted page 110 of the staff report for Thursday's Planning Commission meeting contained a detailed floor plan of the shaded area. Staff might want to enter that into the record. Hearing Officer Conner advised that Mr. Mosher's reference of floor plan be entered into the record. Deputy Director Wisneski clarified that, once the Hearing Officer received the requested materials, he would allow ten days for public comments to be submitted. Hearing Officer Conners reiterated that the ten-day period for public comment began when the Deputy Director sent information to anyone who requested it. The additional information would be helpful for everyone. Hearing Officer Conners mentioned various reasons for the lack of records. Digitizing records was good. Not everyone would agree on all facts of the case, but everyone would likely agree on most of the facts. His decision would be well reasoned. People at the hearing provided many helpful comments. Ms. Savary asked if the Fire Code had to be considered in the decision. The Hearing Officer explained that the Fire Code in existence at the time the building was constructed would be applicable. The drawing showed three exits from the building. The Uniform Fire Code would not affect his decision. There were no other public comments. Action: Decision Deferred. III. PUBLIC COMMENTS ON NON-AGENDA ITEMS Page 8 of 9 NEWPORT BEACH HEARING OFFICER MINUTES 10/17/2016 None. IV. ADJOURNMENT The hearing was adjourned at 4:33 p.m. The agenda for the Hearing Officer was posted on October 11, 2016, at 3:22 p.m. in the Chambers binder and on the digital display board located inside the vestibule of the Council Chambers at 100 Civic Center Drive and on the City's website on October 11, 2016, at 4:30 p.m. )Br6rnaisnes i, ICP, Deputy Director cf Page 9 of 9