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HomeMy WebLinkAbout10-22-2020 - Planning Commission1 of 13 NEWPORT BEACH PLANNING COMMISSION MINUTES CITY COUNCIL CHAMBERS – 100 CIVIC CENTER DRIVE THURSDAY, OCTOBER 22, 2020 REGULAR MEETING – 6:30 P.M. I. CALL TO ORDER – The meeting was called to order at 6:33 p.m. II. PLEDGE OF ALLEGIANCE – Commissioner Rosene III. ROLL CALL PRESENT: Chair Erik Weigand, Vice Chair Lee Lowrey, Secretary Lauren Kleiman, Commissioner Curtis Ellmore, Commissioner Sarah Klaustermeier, Commissioner Peter Koetting, Commissioner Mark Rosene ABSENT: None Staff Present: Community Development Director Seimone Jurjis, Deputy Community Development Director Jim Campbell, Assistant City Attorney Yolanda Summerhill, City Traffic Engineer Tony Brine, Police Civilian Investigator Wendy Joe, Senior Planner Ben Zdeba, Associate Planner David Lee, Assistant Planner Melinda Whelan, Assistant Planner Joselyn Perez, Administrative Support Specialist Clarivel Rodriguez, Administrative Technician Amanda Lee IV. PUBLIC COMMENTS None V. REQUEST FOR CONTINUANCES None VI. CONSENT ITEMS ITEM NO. 1 MINUTES OF SEPTEMBER 17, 2020 Recommended Action: Approve and file Chair Weigand noted Mr. Mosher's proposed revisions. Motion made by Commissioner Koetting and seconded by Commissioner Rosene to approve the minutes of the September 17, 2020, meeting with Mr. Mosher’s edits. AYES: Weigand, Lowrey, Kleiman, Ellmore, Klaustermeier, Koetting, Rosene NOES: ABSTAIN: ABSENT: ITEM NO. 2 CORTELL TRUST ENCROACHMENT (PA2020-287) Site Location: 425 Tustin Avenue Summary: A request to waive City Council Policy L-6 to install noncompliant private improvements within the Tustin Avenue public right-of-way consisting of two 6-inch steps and a fence with 36-inch-high pilasters that encroach up to 8 feet 10 inches into the public right-of-way. Recommended Action: 1. Find the project exempt from the California Environmental Quality Act (CEQA) Guidelines pursuant to Section 15303 under Class 3 (New Construction or Conversion of Small Structures), because it has no significant effect on the environment; Planning Commission Minutes October 22, 2020 2 of 13 2. Waive City Council Policy L-6, Encroachments in Public Rights-of-Way, to install noncompliant private improvements consisting of two steps and a fence with pilasters that encroach into the Tustin Avenue public right-of-way, contingent upon all conditions of the Encroachment Permit process being met (Attachment No. PC 1); and 3. Adopt Resolution No. PC2020-038 waiving City Council Policy L-6 and approving Encroachment Permit No. N2020-0482. In response to Commissioner Koetting’s inquiries, City Traffic Engineer Tony Brine reported the minimum width of a walkway that is compliant with the Americans with Disabilities Act (ADA) is 36 inches, but 48 inches is preferred. The existing walkway is less than 36 inches. The City does not plan to build sidewalks in Newport Heights and, therefore, has not objected to this type of encroachment. Lights are not allowed within the steps. In response to Vice Chair Lowrey’s question, Assistant City Attorney Yolanda Summerhill confirmed that the agreement clearly states the property owner is not granted an interest in the property and that the agreement is subject to being withdrawn. ITEM NO. 3 BARRETT ENCROACHMENT (PA2020-288) Site Location: 445 Tustin Avenue Summary: A request to waive City Council Policy L-6 to install noncompliant private improvements within the Tustin Avenue public right-of-way including two walls with a maximum height of 39 inches that encroach up to 8 feet into the public right-of-way. Recommended Action: 1. Find the project exempt from the California Environmental Quality Act (CEQA) Guidelines pursuant to Section 15303 under Class 3 (New Construction or Conversion of Small Structures), because it has no significant effect on the environment; 2. Waive City Council Policy L-6, Encroachments in Public Rights-of-Way, to retain noncompliant private improvements consisting of two walls that encroach into the Tustin Avenue public right-of-way, contingent upon all conditions of the Encroachment Permit process being met; and 3. Adopt Resolution No. PC2020-039 waiving City Council Policy L-6 and approving Encroachment Permit No. N2020-0512. Jim Mosher did not agree with allowing this pattern of development. This area of Tustin Avenue does not have sidewalks. The homeowner has installed a wall practically at the edge of the roadway and planted shrubbery behind the wall. Screening a yard is typically allowed for a corner lot only. The staff report does not indicate if the shrubbery will be removed. Motion made by Chair Weigand and seconded by Commissioner Rosene to approve Agenda Items 2 and 3. AYES: Weigand, Lowrey, Kleiman, Ellmore, Klaustermeier, Koetting, Rosene NOES: ABSTAIN: ABSENT: VII. PUBLIC HEARING ITEMS ITEM NO. 4 AT&T SMALL CELL SLC0902 APPEAL (PA2019-113) Site Location: Public right-of-way, City streetlight number SLC0902, at the northwestern corner of 38th Street and Lake Avenue. Summary: An appeal of the Zoning Administrator’s August 27, 2020, decision to approve a coastal development permit allowing the installation of a small cell wireless facility on a City-owned streetlight pole. Planning Commission Minutes October 22, 2020 3 of 13 Recommended Action: 1. Conduct a de novo public hearing; 2. Find this project exempt from the California Environmental Quality Act (CEQA) pursuant to Sections 15302 and 15303 under Class 2 (Replacement or Reconstruction) and Class 3 (New Construction or Conversion of Small Structures), respectively, of the State CEQA (California Environmental Quality Act) Guidelines, California Code of Regulations, Title 14, Division 6, Chapter 3, because it has no potential to have a significant effect on the environment and the exceptions to the Class 3 exemption under Section 15300.2 do not apply; and 3. Adopt Resolution No. PC2020-034 upholding the decision of the Zoning Administrator and approving Coastal Development Permit CD2020-119 with the attached Findings and Conditions. Senior Planner Ben Zdeba reported the City's review of applications for small cell and wireless communication facilities is limited by federal law to aesthetics, land use, and environmental impacts. Decisions on applications cannot be based on concerns about radio frequency (RF) emissions from the facilities. On February 12, 2019, the City Council authorized a Master License Agreement (MLA) with New Cingular Wireless for the use of City- owned streetlights. In May 2020, the Zoning Administrator approved a minor use permit for an installation at the subject streetlight; however, staff later determined a CDP is required for a small cell installation because it is not exempt from Title 21. On August 27, 2020, the Zoning Administrator approved a CDP, and Mr. Mosher appealed the decision. The appeal cited concerns regarding insufficient analysis of alternative sites and contended that the subject site is a prohibited location under Title 21. Parcels surrounding the location are zoned for residential or Parks and Recreation. Wireless telecommunication facilities cannot be sited on single-family or two-family residential lots but may be sited in a park. However, the Recreation and Senior Services Department does not view such applications favorably because a wireless facility is not a recreational amenity for the public. The list of prohibited locations includes locations between the sea and the first public road parallel to the sea. In this case, the location of the facility is in the road, which is not a prohibited location. The applicant proposes to replace the existing streetlight with a streetlight/antenna in the same location but at a height of 27 feet 6 inches, which is below the 29-foot height limit for residential structures in the area. The luminaire height will remain the same. The antenna will be enclosed in a 12-inch-diameter shroud, and all equipment will be located on the pole or in a below-grade vault. This type of installation is a Class 3 installation and requires a minor use permit. The minor use permit for this facility remains in effect as an appeal has not been filed. The applicant is charged with providing an alternative sites analysis while staff is charged with reviewing the analysis and ensuring its accuracy. Staff and the Zoning Administrator reviewed these sites as well. Senior Planner Zdeba provided a PowerPoint presentation with visual simulations of the proposed installation and photographs of alternative sites. Alternative Site 1 is located on the corner of 38th Street and River Avenue. There is no landscaping on the corner, and the location is very close to a residential neighborhood. The distance between the pole and the curb is less than 3 feet, which does not conform to ADA requirements. When an existing nonconforming structure is replaced, the new structure must conform with ADA requirements. Alternative Site 2 is located at the corner of 37th Street and Lake Avenue. The distance between the light pole and the fence is at least 3 feet but less than 4 feet. The light pole is not softened by landscaping and is only 11 feet away from the residential structure. Alternative Site 3 is located at the corner of 39th Street and River Avenue. The distance between the light pole and the wall is less than 3 feet. The only identified public viewpoint is from Newport Island Park. From Newport Island Park, the streetlight will blend into the residential backdrop and with the character of the neighborhood. Mr. Zdeba shared the definition of “public view” from Title 21. The streetlight will not impact the view from Newport Island Park. Furthermore, the streetlight will be behind the view of the canal from Lake Avenue Park and will not impact the view, which is not a designated viewpoint. With the installation of this facility, wireless coverage in the immediate area will improve. The application is consistent with the Local Coastal Program (LCP) Implementation Plan, the Zoning Code, the General Plan, City standards, and the facility will be visually compatible with the area. Staff recommends the deletion of Condition of Approval 35 and the addition of a condition of approval stating "no demolition or construction materials, equipment debris, or waste shall be placed or stored in a location that would enter sensitive habitat, receiving waters, or storm drains or results in impacts to environmentally sensitive habitat areas, streams, canals, the beach, wetlands or their buffers." Planning Commission Minutes October 22, 2020 4 of 13 In response to Commissioner Koetting's inquiries, Senior Planner Zdeba confirmed the existing streetlight will be replaced with a new one. There will not be a temporary light. The MLA outlines the schedule of fees and rents. Placing signs and stickers on the light pole can be prohibited, if the Commission wishes. Commissioners Ellmore, Klaustermeier, Rosene, Koetting, Vice Chair Lowrey, and Chair Weigand disclosed no ex parte communications. Secretary Kleiman disclosed email correspondence with members of the public. Chair Weigand opened the public hearing. Cory Autrey, applicant's representative, advised that the initial application was submitted in June 2019 and deemed complete in early 2020. The Zoning Administrator approved a minor use permit in May 2020, and no appeal of the decision was filed. Staff determined a CDP would be required, which prompted the Zoning Administrator hearing on August 27, 2020. Most of the small cell facilities in Newport Beach have radios and antenna enclosed in a shroud, which is mounted to the light pole. Small cell facilities are intended to fill small coverage gaps and to add capacity to a macro network. Utilizing infrastructure located in public rights-of-way allows AT&T and other carriers to provide a consistent design. The California Public Utilities Code, the Federal Telecommunications Act of 1996, and the Federal Communications Commission (FCC) 2018 Wireless Infrastructure Order support carriers' use of structures in the public right-of-way. The small cell facilities contain small fans that cannot be heard by pedestrians. Franklin Orozco, applicant's representative, indicated three alternative sites were analyzed, and all the alternatives fail to meet ADA requirements. The proposed location has ample space to comply with ADA requirements. The design of the small cell facility meets the City's standards. The applicant has reached an understanding with the Public Works Department to replace the streetlight in approximately ten days and can provide a temporary light during construction, if necessary. The cooling fans will operate during extreme hot weather rather than continuously. In answer to Commissioner Rosene's query, Mr. Orozco explained that radio engineers use software and customer demands to determine areas where facilities can improve coverage. In reply to Secretary Kleiman's questions, Mr. Orozco related that the difference in height between the existing streetlight and the new one is approximately 6 feet. Some facilities are designed with the radios attached to the exterior of the poles; however, they are more visible. In response to Chair Weigand's inquiry, Mr. Orozco indicated the facility is part of AT&T’s 4G implementation program. Jim Mosher, the appellant, indicated his belief that small cell facilities are not small and unobtrusive. He believed the additional 6-foot height noted by Mr. Orozco is the distance above the luminaire, which is located above the top of the pole. The new pole will be extended a couple of feet with the structure above that for a total additional height of 8 feet. A CDP is not the same as a minor use permit. In approving a CDP, the City is obligated to find something that makes the City desirable and attractive to residents as well as the public in general. The Zoning Code lists four locations where telecom facilities are prohibited. The LCP Implementation Plan provides two additional prohibited locations, one of which is the area between the first public road and the sea. The first public road is defined as a road that contains an all-weather surface open to motor vehicles. The proposed site is located in a planter that is located between a roadway and the sea. The intent of the Coastal Act is to protect that coastal resource. Since May, staff has stated the proposed site is located between the first public road and the sea. On Monday, staff indicated it is not located between the first public road and the sea. The City's GIS information indicates the beach area has been designated as a City-owned parcel. The beach area is also zoned R-2. Design standards contained in Title 21 are stricter than those contained in Title 20. Mr. Mosher continued and reported that telecom facilities have to be designed to minimize the visual impact of the facility. The Planning Commission's duty is to ensure that the project is located and designed to protect and, where feasible, to enhance the scenic and visual qualities of the Coastal Zone. He shared a photograph of the proposed site, which he considered a scenic coastal view. The applicant requests approval of an 8-foot-tall structure atop the streetlight that is in the view. The structure does not seem consistent with what the Planning Commission is supposed to approve. The alternative site at 39th Street is not appropriate because of ADA Planning Commission Minutes October 22, 2020 5 of 13 requirements. There appears to be a choice between violating ADA requirements at the 39th Street location and violating the Coastal Act at the proposed location. The City should be able to find a creative solution such that the 39th Street location is appropriate for a wireless facility. In his opinion, a facility on the streetlight at 39th Street would have less effect on the view than the proposed location. A wireless facility on the streetlight at 37th Street would also impact the view. With a creative solution for ADA requirements, the 39th Street streetlight would be the most appropriate location with the 37th Street location being less appropriate and the proposed location being the least appropriate. The design of the cell installation located on a streetlight at the Back Bay Bridge is less impactful than the proposed design. Staff is supposed to notify people who have requested notice and people who are interested in the project of the public hearing for the project, which they may not have done. Dorothy Larson believed approval of the site should be expedited in light of the community's need for good connectivity. The wireless facility will not be obtrusive. Chair Weigand closed the public hearing. In response to Commissioner Rosene’s inquiries, Mr. Autrey advised that he does not have knowledge specific to the facility located at the Back Bay Bridge. If the facility is a macro site, it is more high-powered and covers a larger area than the proposed small cell facility. Senior Planner Zdeba clarified that the existing facility to which Mr. Mosher referred is an existing wireless telecommunications facility in the public right-of-way. In answer to Commissioner Klaustermeier's question, Senior Planner Zdeba indicated that the sidewalk at the proposed location is not ADA-compliant; however, the site is located in the parkway, which is the distinguishing characteristic of the site. In reply to Secretary Kleiman's queries, Senior Planner Zdeba related that staff had not been following any other similar applications that may have been appealed to the California Coastal Commission. Because the City's Title 21 standards for wireless facilities do not provide the exemptions in the Coastal Act, the City requires a CDP for a wireless facility. The Coastal Commission routinely issues a waiver based on the exemptions in the Coastal Act. Staff is aware of the need to amend the LCP to include the exemptions. Secretary Kleiman commented that this infrastructure is needed. Once again, there is a conflict with the Coastal Act. This will likely be appealed to the Coastal Commission, which will refer it back to the City. One of the alternative sites does not have the same objections or problems as the proposed location. In response to Chair Weigand's inquiry, Assistant City Attorney Summerhill reported staff did not notice the item as consideration of alternative sites. Staff would interpret the Planning Commission's desire to consider alternative sites as a denial of the application and would return with a resolution supported by findings. Secretary Kleiman expressed interest in additional wireless facilities to improve coverage. The fact that a small cell facility covers only 250 to 1,000 feet is concerning given the effort involved in submitting and approving an application. Mr. Mosher's reading of the LCP Implementation Plan is not incorrect. Her concern is having to repeat the approval process if the Planning Commission's approval is appealed to the Coastal Commission who refers it back to the Planning Commission. In answer to Chair Weigand's queries, Deputy Community Development Director Jim Campbell explained that the Planning Commission's decision could be appealed to the City Council or the Coastal Commission. Staff feels the recommendation is consistent with the LCP. If the Coastal Commission staff believes a facility could have a visual impact based on the visual impact analysis, it will require a CDP. If the Coastal Commission staff does not believe a facility would have a visual impact, it will exempt the facility. Mr. Orozco indicated he has been involved in appeals of similar facilities in similar locations, and the Coastal Commission has exempted those facilities. He preferred the Planning Commission make a decision. In reply to Secretary Kleiman's question, Senior Planner Zdeba advised that existing streetlights may not comply with the ADA requirement for a 36-inch clear path of travel. If a streetlight is voluntarily replaced, it must comply with the requirement. Given the age of the streetlights, they were likely installed prior to the ADA. Planning Commission Minutes October 22, 2020 6 of 13 Commissioner Rosene remarked that the existing streetlight at Alternative Site 3 is not ADA compliant, but the appellant preferred that location. Perhaps the applicant would be willing to construct an ADA-compliant streetlight and facility at Alternative Site 3. Motion made by Commissioner Koetting and seconded by Commissioner Lowrey to approve the staff recommendation with staff's proposed amendments. AYES: Weigand, Lowrey, Ellmore, Klaustermeier, Koetting, Rosene NOES: Kleiman ABSTAIN: ABSENT: ITEM NO. 5 AT&T SMALL CELL SLC4653 APPEAL (PA2019-115) Site Location: Public right-of-way, city streetlight number SLC4653, on the north side of Bayside Drive, approximately 900 feet northwest of El Paseo Drive Summary: An appeal of the Zoning Administrator’s August 27, 2020, decision to approve a coastal development permit allowing the installation of a small cell wireless facility on a City-owned streetlight pole. Recommended Action: 1. Conduct a de novo public hearing; 2. Find this project exempt from the California Environmental Quality Act (CEQA) pursuant to Sections 15302 and 15303 under Class 2 (Replacement or Reconstruction) and Class 3 (New Construction or Conversion of Small Structures), respectively, of the State CEQA (California Environmental Quality Act) Guidelines, California Code of Regulations, Title 14, Division 6, Chapter 3, because it has no potential to have a significant effect on the environment and the exceptions to the Class 3 exemption under Section 15300.2 do not apply; and 3. Adopt Resolution No. PC2020-035 affirming the decision of the Zoning Administrator and approving Coastal Development Permit CD2020-118 with the attached Findings and Conditions. Assistant Planner Joselyn Perez reported small cell technology is a solution to fill coverage gaps and is intended to work with existing macro facilities. The City's review of applications for wireless facilities is limited by federal laws. On February 12, 2019, the City Council approved an MLA with Cingular Wireless for the use of City-owned streetlights. On April 16, 2020, the Zoning Administrator approved a minor use permit for the facility. A call for review was attempted by a Planning Commissioner; however, said call for review occurred after the designated appeal period had expired and the use permit became effective. Subsequently, staff determined a CDP is required for the facility. On August 27, 2020, the Zoning Administrator approved a CDP for the facility, and Mr. Mosher filed an appeal of the decision, citing inadequate consideration of alternative locations and collocations. The proposed facility is located within the vegetated parkway along the landward side of Bayside Drive, which is the first public road paralleling the sea. Land uses surrounding the proposed site are primarily residential. The application proposes to replace the existing streetlight with a new streetlight in the same location. The height of the luminaire would remain the same, but the overall height of the facility would increase to 27 feet 5 inches. Antennas and radio equipment will be enclosed in a shroud located atop the pole. All equipment for the facility will be located within the shroud or below grade. The vegetated hillside behind the streetlight softens the view of the streetlight. The applicant analyzed four alternative sites along Bayside Drive. Staff and the Zoning Administrator reviewed these sites as well. Assistant Planner Perez provided a PowerPoint presentation with visual simulations of the proposed installation and photographs of alternative sites. Alternative Site 1 is located in front of a coastal bluff and is not considered an appropriate location because of the need to grade into the bluff to install below-grade equipment and other reasons. Alternative Site 2 is also located in front of the same coastal bluff and is not considered an appropriate location for the same reasons as Alternative Site 1. Alternative Site 3 presents challenges due to surrounding low retaining walls which would need to be relocated. Public comment favored locating the facility at Alternative Site 4 due to the solar panels blighting the bluff behind the streetlight. However, the facility would stand out against the existing solar panels. In addition, Alternative Site 4 is located in a curve Planning Commission Minutes October 22, 2020 7 of 13 of the roadway will be in the line of sight of motorists and bicyclists. Staff finds the application is consistent with the LCP, the Zoning Code, the General Plan, and City standards. There is no sidewalk located adjacent to Bayside Drive in this area, therefore the project will have no impact on the publics ability to access the coast. Staff recommends revising Finding B Fact 1 on page 5 of the resolution to state Finding A.9 rather than Finding A.5. In response to Commissioner Koetting's question, Assistant Planner Perez advised that Alternative Site 4 conflicts with existing street trees and the storm drain system. The applicant should respond to its business interests. Commissioners Ellmore, Klaustermeier, Rosene, Kleiman, and Koetting, Vice Chair Lowrey and Chair Weigand disclosed no ex parte communications. Chair Weigand opened the public hearing. Cory Autrey, applicant's representative, reiterated his comments regarding the benefits of utilizing existing streetlights and federal and state legislation supporting carriers' rights to utilize the public right-of-way. There is no guideline regarding the number of alternative sites that should be analyzed. Because small cell facilities cover a small area, analyzing alternative sites outside the coverage area is not logical. Franklin Orozco, applicant's representative, indicated a typical alternative site analysis will include only the two poles adjacent to the proposed site because of the limited coverage area of a small cell facility. Three-sided retaining walls have been constructed around the streetlights at the alternative sites. Installing below-grade equipment at these sites would require grading into the bluff and expanding the retaining walls by 6-8 feet. The streetlight at Alternative Site 4 conflicts with an existing drain and trees and is more prominent than other sites because the roadway curves at the site. Jim Mosher, appellant, reported one of his reasons for appealing the Zoning Administrator's decision was Chair Weigand's attempt to call the decision for review. The Planning Commission, rather than the Zoning Administrator, should determine which site is appropriate. Based on the applicant's representative's statement, future applications may propose locating small cell facilities on every other streetlight. The lack of information regarding an overall plan for facilities is disturbing. Concentrating technology at Alternative Site 4 is not necessarily a bad idea. In his opinion, Alternative Site 4 is not visually more prominent than other sites. He objected to siting the facility at Alternative Site 2 as the Coastal Act protects bluffs. Locating the facility in the Bayside Marina parking lot could affect views less than other locations, but the parking lot is located in the prohibited area between the sea and the first public road. T-Mobile has located a facility at the Bahia Corinthian Yacht Club. Although the yacht club is located between the sea and the first public road, a facility is allowed on the site because there is an existing building and facility. The yacht club location could be outside the proposed coverage area. In response to Chair Weigand's and Commissioner Koetting's questions, Mr. Autrey reiterated the need to grade into the bluff to expand the retaining walls and to install the underground vault at Alternative Site 4. The construction would affect a drain and a nearby stairway and likely require the removal of a tree. The applicant does not consider a facility constructable at Alternative Site 4. The location of the Bahia Corinthian Yacht Club is located too far away from the identified area. The applicant is focusing on installing small cell facilities in public rights-of-way, which it has the right to do. The existing facility at the yacht club is a macro cell, and the carrier's coverage objective for the site appears to be different from the applicant's objective. In his opinion, adding the facility to a streetlight would impact the view less than adding a third chimney atop the yacht club. Mr. Orozco added that the Alternative Site 1 is in front of a residence rather than a parking lot. Nancy Scarbrough agreed with Secretary Kleiman's comments regarding resolving these issues without involving the Coastal Commission. Chair Weigand closed the public hearing. Secretary Kleiman concurred with staff’s analysis for this application. The proposed site does not conflict with the LCP Implementation Plan. A cost-benefit analysis should be prepared in light of the time spent on these Planning Commission Minutes October 22, 2020 8 of 13 applications and the limited coverage area of small cell facilities. Carriers should provide a comprehensive plan for wireless facilities. Motion made by Commissioner Ellmore and seconded by Secretary Kleiman to approve the staff recommendation with staff’s proposed modification. AYES: Weigand, Lowrey, Kleiman, Ellmore, Klaustermeier, Koetting, Rosene NOES: ABSTAIN: ABSENT: ITEM NO. 6 CHIHUAHUA CERVEZA EXPANSION (PA2019-160) Site Location: 3107 Newport Boulevard and 3109 Newport Boulevard Summary: Conditional Use Permit (CUP) and Coastal Development Permit for the expansion of an existing restaurant into the adjacent commercial suite. The application includes a 25-space parking waiver and a change to the existing alcohol license from a Type 41 ABC License (Beer and Wine) to a Type 47 (On-Sale General Eating Place). The application also includes a request to allow limited live entertainment in the form of two non- amplified performers and no late hours past 11 p.m. or dancing are proposed. If approved, the subject CUP would supersede the existing CUP (UP2010-036). Recommended Action: 1. Conduct a public hearing; 2. Find this project exempt from the California Environmental Quality Act (CEQA) pursuant to Section 15301 under Class 1 (Existing Facilities) and Section 15303 under Class 3 (New Construction or Conversion of Small Structures) of the CEQA Guidelines, because it has no potential to have a significant effect on the environment; and 3. Adopt Resolution No. PC2020-036 approving Conditional Use Permit No. UP2019-035 and Coastal Development Permit No. CD2020-001. Associate Planner David Lee reported the restaurant is located in The Landing Shopping Center, which has an onsite parking lot providing 236 parking spaces. The center is zoned Neighborhood Commercial (CN) and includes a grocery store, multiple restaurants, and retail and service uses. The project is an expansion of the existing restaurant into the adjacent suite. The floor area of the restaurant will increase from 1,878 interior square feet to 2,616 interior square feet, and the floor area for the patio will increase from 259 square feet to 626 square feet. The applicant requests an upgrade of its Type 41 ABC license to a Type 47. The applicant proposes to change the hours of operation from 9 a.m. to 11 p.m. daily to 6:30 a.m. to 10 p.m. Sunday through Thursday and 6:30 a.m. to 11 p.m. Friday and Saturday for the interior and 6:30 a.m. to 10 p.m. daily for the exterior. Staff proposes a condition of approval prohibiting alcohol service prior to 9 a.m. Currently, live entertainment is not permitted. The applicant requests live entertainment on Tuesdays and Saturdays from 7 p.m. to 9 p.m. Associate Planner Lee indicated that Chihuahua Cerveza is located in Suite 3107, and Suite 3109 was previously occupied by a takeout establishment. The existing back of house, kitchen, and restrooms will remain in Suite 3107. Suite 3109 will include an expanded dining room, bar area with 15 seats, beer and liquor storage, and expanded patio dining. The current parking requirement for the shopping center is one space per 200 square feet. The shopping center is required to provide 240 parking spaces but provides 236 spaces with a five-space parking waiver. The expansion of the restaurant will cause the parking requirement to be calculated for each use. With this change, the site is required to provide 261 parking spaces and will have a deficit of 25 spaces. A parking study was conducted in May 2019 and found 57 percent occupancy at peak demand. With the expansion of Chihuahua Cerveza, occupancy will increase to 66 percent at peak demand. Consequently, the existing parking lot will accommodate the expansion. Associate Planner Lee further reported the restaurant is located in Reporting District 15, which has an undue concentration of ABC licenses and a high crime rate. However, the Police Department has reviewed the application and has no objections to it because the applicant does not propose late hours. The applicant will be required to obtain an Operator's License if the application is approved. Based on the applicant's request for live entertainment, staff has proposed conditions of approval limiting performances to acoustic only and the number of performers to a maximum of two and requiring the closure of all doors and windows during performances. The applicant obtained Planning Commission Minutes October 22, 2020 9 of 13 limited term permits for live entertainment and conducted a sound study, which found no noise impacts above normal limits for the area. In response to Commissioner Ellmore's question, Associate Planner Lee advised that a visitor serving use attracts people to an area, and this property is currently listed as such. In reply to Commissioner Koetting's inquiries, Deputy Community Development Director Campbell stated the tenant and landlord are the same person, and the property owner has authorized the project. Associate Planner Lee indicated Pavilions has not provided comment. Notice of public hearings are provided to owners and occupants. The original approval of a restaurant was granted in 2011, and the application included the patio. The parking waiver was approved to allow additional patio space. In answer to Commissioner Rosene's query, Associate Planner Lee explained that the parking requirement for a shopping center containing at most 100,000 square feet and at most 15 percent of its gross floor area in eating and drinking establishments is one parking space per 200 square feet of gross floor area. The expansion of Chihuahua Cerveza pushes the gross floor area for eating and drinking establishments over 15 percent, and the parking requirement is calculated for each use rather than the shopping center as a whole. The parking requirement for an eating and drinking establishment is one space per 40 square feet of net public area. Commissioners Ellmore, Klaustermeier, Rosene, and Koetting disclosed no ex parte communications. Secretary Kleiman and Chair Weigand disclosed onsite meetings with the applicant’s consultant. Commissioner Lowrey disclosed a telephone call with applicant’s consultant. Chair Weigand opened the public hearing. Kaitlin Crowley, applicant's representative, reported the restaurant will continue to close at 10 p.m. on weekdays and 11 p.m. on weekends. Live entertainment will be acoustical only, and all doors and windows will be closed during performances. The conditions of approval are acceptable. In response to Chair Weigand’s inquiry, Ms. Crowley indicated two security guards are responsible for having vehicles towed if the owners leave the shopping center. Chair Weigand suggested the Planning Commission allow live entertainment on Sundays from 11 a.m. to 2 p.m. and specific holidays if the applicant is interested. In response to Vice Chair Lowrey's query, Ms. Crowley related that the applicant seeks approval of live entertainment to 9 p.m. rather than 10 p.m. In reply to Secretary Kleiman's question, Associate Planner Lee reported the applicant does not anticipate a need for overflow parking as the parking study found the parking lot is underutilized. However, the parking study includes a parking management plan that includes carshare drop-off and pickup areas and valet parking if they are needed in the future due to unforeseen circumstances. In answer to Commissioner Koetting's inquiries, Associate Planner Lee indicated the existing restrooms are sufficient for the existing and expanded use. Ms. Crowley confirmed that employees will park onsite and were included in the parking study. Bicycle racks are also located onsite. In response to Commissioner Ellmore's questions, Police Civilian Investigator Wendy Joe clarified that due to the lack of late-night hours and the applicant's record, the Police Department believes the conditions of approval will mitigate any concerns the Police Department may have. Reporting District 15 has the highest concentration of licenses and crime in the City. The conditions of approval are quite extensive to cover many aspects of crime and alcohol service. Commissioner Ellmore expressed concern regarding the number of establishments serving alcohol in the district. He appreciated the proposal to expand the restaurant but adding a bar is a concern. Chair Weigand closed the public hearing. Planning Commission Minutes October 22, 2020 10 of 13 Commissioner Koetting believed approving a parking reduction of 10.6 percent of the required parking would set a dangerous precedent and expressed concern about upgrading the liquor license. Chair Weigand noted the Planning Commission could call the permits for review in a year's time to ensure parking is sufficient and to review alcohol service. Commissioner Ellmore preferred not to upgrade the ABC license to a Type 47. Vice Chair Lowrey concurred with calling the permits for review in a year. Not allowing a Mexican restaurant to serve a margarita does not fit the theme. The parking program seems to be staffed with two individuals who are having vehicles towed if they should not be parked in the lot. Commissioner Rosene agreed with Vice Chair Lowrey's comments. Chair Weigand noted the use is a restaurant, not a bar. The expansion area is not large enough for a bar. In reply to Commissioner Ellmore's question, Chair Weigand indicated the review would be mandatory. Commissioner Ellmore remarked that allowing additional licenses for spirits in District 15 has to stop at some point. Chair Weigand wanted to give operators the tools to remain in business and to be good investors in the community. A review in one year will allow the Planning Commission to review operations and make changes if needed. Motion made by Commissioner Rosene and seconded by Vice Chair Lowrey to approve the staff recommendation with amendments requiring a review in one year, allowing acoustic performances on Sundays from 11 a.m. to 2 p.m., and allowing the Community Development Director to choose the holidays on which acoustic performances are allowed. AYES: Weigand, Lowrey, Kleiman, Klaustermeier, Rosene NOES: Ellmore, Koetting ABSTAIN: ABSENT: ITEM NO. 7 POUR VIDA RESTAURANT (PA2019-259) Site Location: 5000 Birch Street Summary: A conditional use permit to establish a 3,027-square-foot restaurant with 1,830 square feet of net public area (839 square feet interior and 991 exterior) in an existing 10-story office building within Koll Center Planned Community Office Site B (KCN Site B). The restaurant includes a Type 41 (On-Sale Beer and Wine) Alcoholic Beverage License, with no late hours. The proposed hours of operation are 6 a.m. to 11 p.m., Monday through Friday and 9 a.m. to 11 p.m., Saturday and Sunday. There will be no live entertainment or dancing. Recommended Action: 1. Conduct a public hearing; 2. Find this project exempt from the California Environmental Quality Act (CEQA) pursuant to Section 15301 (Existing Facilities) of the CEQA Guidelines, because it has no potential to have a significant effect on the environment; and 3. Adopt Resolution No. PC2020-037 approving Use Permit No. UP2019-056. Commissioner Ellmore recused himself due to a professional relationship with owners of the building. Vice Chair Lowrey recused himself due to his membership in the Pacific Club. Assistant Planner Melinda Whelan reported the location is an existing office space within a ten-story office building in the Koll Center. Parking provided is a shared parking pool of 3,045 parking spaces. The area consists primarily of offices, but Uptown Newport is located approximately 800 feet south of the subject site. The restaurant capacity will Planning Commission Minutes October 22, 2020 11 of 13 be 22 seats interior and 32 seats exterior. The Police Department reviewed the Type 41 ABC license and provided no objections. The office space being converted to the restaurant had an allocation of 12 parking spaces, which will be allocated to the new restaurant. The parking requirement for the restaurant is a net increase of 21 parking spaces. A parking study demonstrates that parking demand for the restaurant will be much lower and finds that parking demand will exceed supply during weekday lunch hours only. The study further demonstrates that access to the restaurant will be primarily via walking due to locational characteristics. Therefore, during peak hours, the primary clientele for the restaurant will come from offices in the building and surrounding buildings. The restaurant will provide a service needed in the area. In response to Secretary Kleiman's questions, Assistant Planner Whelan advised that the parking study was conducted from January through early March. Ticket sales counts for Pour Vida’s existing location in Anaheim was conducted in February 2019 with pedestrian counts conducted in January 2020. The studies were not performed during the pandemic. Commissioner Klaustermeier disclosed no ex parte communications. Commissioners Rosene, Kleiman, and Koetting and Chair Weigand disclosed communications with the applicant’s consultant. Chair Weigand opened the public hearing. Tim Strader Jr., applicant, advised that there is a lack of food options in the area of the restaurant. The parking study showed that 33 parking spaces are required based on the net public area calculation. With 12 parking spaces allocated to the space, the deficiency of 21 spaces will have an impact during the peak period. The restaurant will be open for breakfast and dinner. With office workers leaving the parking lot during the lunch hour, parking spaces will be available to compensate for the 21-space deficiency. Condition of Approval 6 gives the City the right to request a parking management plan in the future. Neighboring property owners and tenants have provided public comment in support of the project. The condo owner in 4340 Von Karman have provided public comment in opposition to the project, however the building at 5000 Birch has not had any parking issues and has actually provided overflow parking to 4340 Von Karman. In reply to Commissioner Koetting's inquiries, Dionne Rodriguez, property manager for 5000 Birch, indicated that the outdoor seating area was enlarged due to COVID-19 restrictions. The patio area does not encroach very far into the courtyard and does not impede use of the courtyard. Commissioner Koetting proposed the patio area be pulled back so that pedestrians could stroll the plaza without having to skirt the patio. Dionne Rodriguez indicated that deliveries will be made to the loading dock at the rear of the east tower. Trash is located in an adjacent building. Patrons will place their orders at a counter and either pickup their order at the counter or waitstaff will bring it to the table. Deputy Community Development Director Campbell noted the plaza is quite large, and staff believes there is sufficient space without reducing the size of the patio. In answer to Chair Weigand's queries, Ms. Rodriguez stated there will be some banquet seating as well as tables and chairs in the patio area. The consultant team has had multiple conversations with the Picerne Group regarding the restaurant complementing the new residences. In reply to Secretary Kleiman's question, Mr. Strader reported the hours of operation will depend on the success of the dinner operations. While the applicant requests approval of an 11 p.m. closing time, the restaurant will close earlier if there are no patrons. In answer to Chair Weigand's inquiry, Police Civilian Investigator Joe clarified that a patron could purchase a bottle of wine with their meal and take home any unconsumed portion unless it is prohibited in the conditions of approval. The sale of alcohol for offsite consumption is a possibility so that residents do not have to drive to purchase alcohol, but it is not part of this request. In response to Commissioner Rosene's question, Deputy Community Development Director Campbell advised that a barrier around the patio is required due to the sale of alcohol. Ms. Rodriquez added that a gate could be added to the fencing if it does not violate any licenses. Planning Commission Minutes October 22, 2020 12 of 13 Chair Weigand closed the public hearing. Deputy Community Development Director Campbell indicated staff can work with the applicant team to design a patio area that does not interrupt the existing pedestrian path of travel for the entire building and also complies with ABC regulations. Commissioner Klaustermeier commented that the parking study addresses all concerns about parking. Motion made by Commissioner Klaustermeier and seconded by Secretary Kleiman to approve the staff recommendation. AYES: Weigand, Kleiman, Klaustermeier, Koetting, Rosene NOES: RECUSED: Lowrey, Ellmore ABSENT: VIII. DISCUSSION ITEMS ITEM NO. 8 APPOINTMENT OF COMMISSIONER FOR CIRCULATION ELEMENT UPDATE OUTREACH EFFORT Summary: Appointment of a Planning Commissioner to assist the Outreach Subcommittee of Housing Element Update Committee in regard to the outreach effort for the Circulation Element. Recommended Action: 1. Determine this activity is exempt from the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) and 15060(c)(3) of the CEQA Guidelines, Title 14, Division 6, Chapter 3 because this action will not result in a physical change to the environment, directly or indirectly; and 2. Appoint Commissioner Koetting to work with the Outreach Subcommittee of the Housing Element Update Advisory Committee. Deputy Community Development Director Campbell reported the City Council has transferred the Circulation Element Update from the Housing Element Update Advisory Committee (HEUAC) to the Planning Commission. Community outreach for both processes is being handled by the Outreach Subcommittee of the HEUAC; therefore, staff suggests the Planning Commission appoint a Commissioner to work with the Outreach Subcommittee and provide updates to the Planning Commission. Commissioner Koetting has expressed interest in working with the Outreach Subcommittee. A virtual workshop and a Planning Commission study session are scheduled for November. In response to Chair Weigand's inquiry, Commissioner Koetting advised that he is willing to serve as the Planning Commission's representative to the Outreach Subcommittee. Jim Mosher noted the primary outreach interface is the website newporttogether.com. That website lists the workshop as November 16, 2020, but the staff report indicates the date is November 23, 2020. The Planning Commission's study session is not listed under the Circulation Element webpage of the website. In reply to Chair Weigand's question, Deputy Community Development Director Campbell agreed to investigate whether Commissioners receive a stipend for subcommittee meetings. Planning Commission Minutes October 22, 2020 Motion made by Commissioner Ellmore and seconded by Secretary Kleiman to approve the appointment of Commissioner Koetting to the HEUAC Outreach Subcommittee. AYES: Weigand, Lowrey, Kleiman, Ellmore, Klaustermeier, Koetting, Rosene NOES: ABSTAIN: ABSENT: IX. STAFF AND COMMISSIONER ITEMS ITEM NO.9 MOTION FOR RECONSIDERATION None ITEM NO.10 REPORT BY THE COMMUNITY DEVELOPMENT DIRECTOR OR REQUEST FOR MATTERS WHICH A PLANNING COMMISSION MEMBER WOULD LIKE PLACED ON A FUTURE AGENDA. Deputy Community Development Director Campbell reported the residential project at 4400 Von Karman has been scheduled for the November 5th Planning Commission hearing. Permits for the Vivante senior housing project in Newport Center were issued approximately a week and a half ago. In response to Vice Chair Lowrey's question, Community Development Director Seimone Jurjis advised that the Planning Commission recommended the City Council deny the short-term lodging ordinance. Since then, staff has held a study session with the City Council to obtain direction for a revised ordinance. Based on the Council's direction, staff presented an ordinance capping the number of short-term lodging permits at 1,550 and requiring a three-night minimum stay. The Council has approved a first reading, and a second reading is scheduled for October 27, 2020. If approved, the ordinance will be submitted to the Coastal Commission for consideration. In response to Chair Weigand's inquiry, City Traffic Engineer Brine advised that petitions for traffic calming measures in Dover Shores were submitted the previous day. Staff anticipates presenting an item to the Council in January 2021. ITEM NO.11 REQUESTS FOR EXCUSED ABSENCES None X. ADJOURNMENT-9:36 p.m. The agenda for the October 22, 2020, Planning Commission meeting was posted on Friday, October 16, 2020, at 4:10 p.m. i the Cha rs binder, at 4:00 p.m. on the digital display board located inside the vestibule of the Cou ciLCha her at 100 Civic Center Drive, and on the City's website on Friday, October 16, 2020, -4:15 p. . Lauren Kleiman, Secretary 13 of 13