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Home My WebLink About25 - An Additional Extension of Emergency Temporary Use Permits (PA2020-069) - CorrespondenceTheChamber NEWPORT BEACH September 13, 2021 Mayor Brad Avery City of Newport Beach 100 Civic Center Drive Newport Beach, CA 92660 Received After Agenda Printed September 14, 2021 Item No. 25 Re: Resolution No. 2021-84: An Additional Extension of Emergency Temporary Use Permits (PA2020-069) Dear Mayor Avery and City Council Members: On your agenda for the September 14, 2021 City Council Meeting you will be discussing a resolution to extend the Emergency Temporary Use Permits that were issued to businesses in order to allow them to encroach on City property or otherwise operate in adjacent parking lots and other open spaces. As laid out in the Staff report, many of the businesses that requested the permits are still suffering from the ill effects of the Coronavirus pandemic on their business operations. The Chamber of Commerce wholeheartedly endorses the extension through the end of the 2021. Accordingly, the Chamber asks that you please vote yes on Resolution No. 2021-84. Warm regards, Steve Rosansky President/CEO CONNECTION. EDUCATION. COMMUNITY. ADVOCACY. 4343 Von Karman Avenue, Suite 150-W, Newport Beach, California 92660 • Ph: (949) 729-4400 • Fax: (949) 729-4417 • www.newportbeach.com Shields Law Offices 1920 Main Street Jeffrey W. Shields Suite 1160 Attornev at Law Irvine, California 92614 September 14, 2021 Hon. Mayor, Mayor Pro Tem & City Council Members City Manager City Clerk Director, Community Development Dept. City of Newport Beach 100 Civic Center Drive Newport Beach, CA 92660 Dear Jill: Received After Agenda Printed September 14, 2021 Item No. 25 Tel. (949) 724-7900 Fax (949) 724-7905 Re: Opposition by Jill Markowicz to: Resolution No. 2021-84: An Additional Extension of Emergency Temporary Use Permits (PA2020-069) We are attorneys for Jill Markowicz ("Ms. Markowitz"), a 16 -year resident and business owner in Newport Beach, and are sending this correspondence to you on her behalf preparatory to the City Council meeting scheduled to be held this evening to consider the above -referenced "Resolution No. 2021-84: An Additional Extension of Emergency Temporary Use Permits (PA2020- 069)" (the "Subject Resolution"). The Subject Resolution should be disapproved, or, alternatively, amended as hereinafter described, for at least the following reasons: 1. There is no valid need for this additional "emergency" extension. The only rationale given for unilaterally providing a further extension of the existing Emergency Temporary Use Permits ("ETUPs") for an additional 116 days through December 31, 2021, is that "the Delta variant of the coronavirus created additional challenges for businesses, making it more difficult for businesses to return to usual operations" (City Council Staff Report, p. 1). However, this is not a valid reason to extend emergency outdoor dining privileges because there are no longer any current restrictions on indoor dining_ regardless of the Delta variant. Indeed, the previous legitimate reason for temporarily granting outdoor dining privileges to ETUPs was because then Covid restrictions were preventing normal indoor dining operations. That is no longer the case, however, and those restrictions have been lifted. Thus, the City's restaurants are, in fact, back to 29995 Hon. Mayor, Mayor Pro Tem & City Council Members City Manager City Clerk Director, Community Development Dept. September 14, 2021 Page 2 "usual operations", and there is no longer any legitimate basis for a further "emergency" extension. 2. The previous extension has already lapsed and an additional extension would be contrary to the City's previous directions. At the June 8, 2021 City Council meeting, Resolution No. 2021-58 was passed, which (a) extended the ETUPs through September 6. 2021, and (b) further instructed any ETUP holders that wished to extend longer that they would have to submit an individual application for a limited term permit ("LTP") for review by staff and public hearing. In accordance with the City's directions, 24 applications for an individual LTP have been received by the City for consideration on their individual merits for possible further extension. By the text of the City's own previous Resolution, the extended emergency period already lapsed on September 6 2021. Furthermore, the mechanism is already established for ETUP holders to independently apply for an LTP, and they are doing so. Unilaterally extending the "emergency" on a blanket basis for all ETUPs is improper and unwarranted. 3. Fair notice of this additional extension was not given to affected neighbors. Although the above directions and Resolution were issued to the public at the June 8, 2021 City Council meeting — thereby entitling affected neighbors of the existing ETUPs to rely on them — no fair notice that this might be seriously modified was given out to the affected neighbors. Indeed, the Subject Resolution was only just verbally requested to be placed on tonight's agenda at the last City Council meeting in August, and no notice of any kind was sent out to the affected neighbors, who have been justifiably assuming that the previous emergency extension of September 6, 2021 would be lapsed, as stated in the previous June Resolution. 4. Two bad actor restaurants are seriously violating their temporary emergency ETUP privileges. While the majority of ETUP holders have presumably been adhering in good faith to their privileges under the existing ETUPs, and have duly applied for an LTP, if they desire, there are two restaurant ETUP holders who are badly violating the privileges gifted to them by the City, i.e., ARC Butcher & Baker ("ARC") and Helmsman Ale House ("Helmsman"). Both ARC and Helmsman have been subject to multiple citations from City Code Enforcement, and the recipients of voluminous complaints made to both City Police and City Code Enforcement. Moreover, not only was ARC previously cited for unlawfully building a cement and brick patio atop three parking places without a permit — which has still not been removed as ordered — but ARC has now further built a permanent patio cover structure upon that illegal patio — also without anv permit! This is precisely why adherence to the City's established procedure of requiring individual Hon. Mayor, Mayor Pro Tem & City Council Members City Manager City Clerk Director, Community Development Dept. September 14, 2021 Page 3 LTP applications for review and public hearing on their independent merits is so vitally important. Through that procedure, the few bad actors can be weeded out and properly dealt with, while those restaurants operating in good faith can duly obtain an LTP. For all of the foregoing reasons, Ms. Markowicz respectfully requests that the City Council disapprove the Subiect Resolution. Nonetheless, as an alternative if the City Council for some reason believes that additional emergency relief is actually necessary and appropriate, Ms. Markowicz proposes the following amendment to the Subject Resolution, at Section 1 (underlined language to be added as amendment): "Section 1: All emergency temporary use permits (ETUP) that have been issued, and which have not been revoked, and whose holders have not received Citation Notices of Violation from the Citv since issuance of the ETUPs, shall remain valid through December 31, 2021, subject to the ETUP permit holders compliance with the conditions of approval and procedures established by Emergency Ordinance No. 2020-005." We look forward to discussion at the City Council meeting on these matters this evening, and sincerely appreciate your thoughtful consideration. Thank you. Very truly yours, - ey W. Shields cc: Senior Planners, Makana Nova & Ben Zdeba