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HomeMy WebLinkAbout01/04/2001E U 0 0 CITY OF NEWPORT BEACH Planning Commission Minutes January 4, 2001 Regular Meeting - 6:30 p.m. ROLL CALL Commissioners McDaniel, Kiser, Agajanian, Selich, Gifford, Tucker and Kranzley - Commissioner Gifford was excused, all other Commissioners were present STAFF PRESENT: Sharon Wood, Assistant City Manager Patricia L. Temple, Planning Director Robin Clauson, Assistant City Attorney Rich Edmonston, Transportation /Development Services Manager James Campbell, Senior Planner Eugenia Garcia, Associate Planner Robert Kain, Assistant Planner Ginger Varin, Planning Commission Executive Secretary Minutes of December 7.2000: Motion was made by Commissioner Tucker and voted on to approve as amended the minutes of December 7, 2000. Ayes: McDaniel, Kiser Noes: None Absent: Gifford Public Comments: None Posting of the Aaenda: Agajanian, Selich, Kranzley, Tucker The Planning Commission Agenda was posted on Friday, December 1, 2000. Minutes Approved Public Comments Posting of the Agenda City of Newport Beach Planning Commission Minutes January 4, 2001 INDEX SUBJECT: Corona del Mar Vision 2004 Plan Item No. 1 Presentation by the Corona del Mar Business Improvement District of the Discussion Item proposed Vision 2004 Plan for Coast Highway, Corona del Mar. Chairperson Selich stepped down from the chair to present the Vision Plan. Speaking from the podium, Mr. Selich noted his involvement with the Corona del Mar Business Improvement District in developing the Vision 2004 Plan. This presentation is being made throughout the community this month to all major boards and commissions in the City. A presentation is planned in early February for the City Council. Referring to several exhibits, he then presented the plan noting the Plan background, plans for Coast Highway, landscaped medians, sidewalk landscaping, parking lanes, lighting fixtures, street furniture, major accents, intersection improvements for Marguerite /Coast Highway, MacArthur /Coast Highway, pedestrian crossings, funding and future plans. Mr. Don Glasgow noted that his group is made up of about 19 volunteers from the business community. He stated the business district is historic and special. He talked about coming back to the Commission for some type of statement or resolution that could be built into their portfolio. He noted his appreciation of • the work done by Mr. Selich. The Planning Commission then discussed the following: • Role to be undertaken by the Commission in support of the beautification plan for Corona del Mar. • Parking spaces, loss or gains. • Details of sidewalk refurbishment. • Legalities of potential abandonment of Larkspur. • CEQA review and traffic studies. • Funding sources from CalTrans, grants and personal donations. • Maintenance budget for upkeep of landscaping. • Negotiations with CalTrans. Takeover of the jurisdiction of the highway and fiscal studies needed. There were no comments from the public. SUBJECT: Coco's Restaurant Item No. 2 • City of Newport Beach Planning Commission Minutes January 4, 2001 3446 East Coast Highway • Use Permit No. 3678 • Outdoor Dining Permit No. 72 • Off -Site Parking Agreement • Waiver of Combining Requirement Staff is requesting that the attached minutes be reviewed and approved. The minutes approved at the meeting of December 7th had the wrong findings and conditions included. Commissioner Tucker noted that he was recused from this matter at the time of the original deliberation. Motion was made by Commissioner Kranzley to approve the minutes as amended. Ayes: McDaniel, Kiser, Agajanian, Selich, Kranzley Noes: None Absent: Gifford Recused: Tucker EXHIBIT "A" FINDINGS AND CONDITIONS OF APPROVAL FOR Use Permit No. 3678 Outdoor Dining Permit No. 72 Off -Site Parking Agreement Waiver of Combining Requirement (REVISED) Findinas: 1. The Land Use Element of the General Plan and designates the site for "Retail Service and Commercial' uses and the existing restaurant is a permitted use Within this designation, and the off -site parking lots in a residential district is not in conflict with the General Plan. 2. This project has been reviewed, and it has been determined that it is categorically exempt from the requirements of the California Environmental Quality Act under Class 1 (Existing Facilities). 3. The request of Use Permit No. 3678 to establish the parking requirement, the Off -Site Parking Agreement, and the waiver of the combining of lots requirement may be approved for the following reasons: The physical design characteristics of the restaurant are for dining purposes only and the alcoholic beverage service for the facility is • incidental to the primary service of food. INDEX Use Permit 3678 Outdoor Dining Permit No. 72 Off -Site Parking Agreement Waiver of Combining Requirement Approved • City of Newport Beach Planning Commission Minutes January 4, 2001 L J 0 • The operational characteristics of the restaurant do not include do not include areas designated for solely for cocktails, dancing, live entertainment or other attractions, which would require additional parking. • The restaurant closes nightly at 10:00 p.m. • The restaurant serves primarily the local residents who either walk or bike to the restaurant establishment. • The existing on -site and off -site parking, and circulation system, is adequate to accommodate the proposed dining areas. • The restaurant facility is located in a commercial area that is comprised of uses whose parking demand does not occur simultaneously, particularly in the evening. • The off -site parking lot located at 411, 413 Narcissus Avenue and 3436 East Coast Highway is currently being used to meet the parking requirement of the restaurant facility and is located so as to be useful in conjunction with the existing restaurant uses. • Parking on the off -site lot will not create undue traffic hazards in the surrounding area. • The existing on -site and off -site parking, and circulation system, is adequate to accommodate the proposed dining areas, which have been used for parking for the subject restaurant since the commercial building was constructed. • The off -site parking lots to the rear, across the alley, are owned by the some owner as the restaurant site and will be maintained as an off - street parking lot for the duration of the restaurant use. • The restaurant is operating under a lease with both property owners, which is of sufficient length to guarantee that the parking will be provided for the restaurant facility. • A condition of approval is included, requiring the provision of 33 parking spaces in the three off -site lots and that the off -site parking agreement be recorded in the County Recorder's Office. • The waiver of the requirement to combine the two commercial lots into one lot or parcel is appropriate in this case, because the lots are under separate ownership with a long -term lease that is of sufficient length to guarantee that the lots will be held as a single entity for the duration of the restaurant use. • The existing building is in fact 40+ years old and the actual improvements being made are simply extending the life of a building that has already reached its economic life. • The economic life of the building is dependent upon the parking and the lease. 4. The approval of Use Permit No. 3678, Off -Site Parking Agreement, and Accessory Outdoor Dining Permit No. 72 will not, under the circumstances of the case, be detrimental to the health, safety, peace, morals, comfort and general welfare of persons residing or working in the neighborhood or be detrimental or injurious to properly or improvements in the neighborhood or INDEX i City of Newport Beach Planning Commission Minutes January 4, 2001 the general welfare of the City, and would be consistent with the legislative intent of Title 20 of the Newport Beach Municipal Code, for the following reasons: • The restaurant use is compatible with the surrounding commercial uses since restaurant uses are typically allowed in commercial districts and conditions of approval have been incorporated, which will minimize noise impacts. • The restrictions on the use of outdoor - amplified sound and patio speakers and compliance with the provisions of the Municipal Code, Community Noise Ordinance, should limit potential noise impacts on the neighboring commercial businesses and residential uses. • The proposed outdoor dining is consistent with the Land Use Element of the General Plan, and is compatible with the surrounding land uses. • The existing on -site and off -site parking, and circulation system, is adequate to accommodate the proposed exterior dining areas. • That the waiver of the development standards as they pertain to walls and landscaping will be of no further detriment to adjacent properties because the site is already developed, and has been in existence for many years. • The proposed exterior changes to the restaurant facility will be an aesthetic improvement to the property. • The limited hours of the outdoor dining areas should prevent noise from adversely impacting the residential uses in the neighborhood. • The proposed accessory outdoor dining expansion will not be located so as to result in a reduction of existing parking spaces because there is adequate parking available, on both off -site lots. • The restrictions on the use of solid roof structures as applied to this approval are consistent with the intent and purpose of the accessory outdoor dining to provide outdoor dining opportunities. • The proposal will not add a new liquor license to an over - concentrated area, providing only for the operational change of an existing restaurant with an existing alcoholic beverage license. Conditions: 1. Development shall be in substantial conformance with the approved site plan and floor plan, except as noted in the following conditions. 2. The interior net public area of the restaurant shall be limited to 1,650 square feet. 3. Nine (9) on -site parking spaces shall be provided for the restaurant on the adjacent lot located at 3436 East Coast Highway, and twenty-four (24) off - site parking spaces shall be provided in the off -site lot located at 411 and 413 Narcissus Avenue. INDEX 0 City of Newport Beach Planning Commission Minutes January 4, 2001 4. The on -site parking plan, the parking plan for the off -site lot located at 411, 413 Narcissus Avenue and 3436 East Coast Highway, and the vehicular circulation and pedestrian circulation systems shall be subject to further review by the City Traffic Engineer. 5. The owner or owners and the City shall execute a written instrument or instruments, approved as to form and content by the City Attorney, providing for the maintenance of the required off - street parking on such lots for the duration of the proposed use or uses on the building site or sites. Should a change in use or additional use be proposed, the off - street parking regulations applicable at the time shall apply. Such instruments shall be recorded in the office of the County Recorder. 6. Grease interceptors shall be installed on all fixtures in the restaurant where grease may be introduced into the drainage systems, unless otherwise approved by the Building Department and the Public Works Department. 7. Kitchen exhaust fans shall be designed to control smoke and odor to the satisfaction of the Building Department. 8. The existing boundary wall between the off -site parking lot and the adjoining . residential lot shall be maintained in accordance with Section 20.82.040 of the Newport Beach Municipal Code, specifically, the wall shall be a maximum 3 foot high masonry wall along the front 5 feet of the side property and 6 feet high for the remaining portion of the side property line. 9. The existing 2 foot wide landscape planter adjacent to the boundary wall between the offsite parking lot and the adjoining residential lot shall be maintained with a groundcover that shall not exceed 3 inches above a 6 inch high curb so as not to obstruct the front overhang of parked vehicles. Plantings shall be planted in areas between parking stalls to screen the boundary wall. 10. Trees, shrubs, or vines shall be planted in the 5 foot wide planter areas along the front property line, and along the side property line on the comer commercial property, to screen the off -site parking lot and the on -site parking from Narcissus Avenue. A landscape plan shall be approved by the Planning, Public Works and General Services Departments 11. In accordance with the provisions of Chapter 13 of the Newport Beach Municipal Code or other applicable section or chapter, additional street trees shall be provided and existing street trees shall be protected in place during construction of the subject project, unless otherwise approved by the General Services Department and the Public Works Department through an encroachment permit or agreement if required. 12. In accordance with the provisions of Chapter 13 of the Newport Beach INDEX • City of Newport Beach Planning Commission Minutes January 4, 2001 U Municipal Code or other applicable section or chapter, additional street trees shall be provided as required by Ordinance, unless otherwise approved by the General Services Department and the Public Works Department through an encroachment permit or agreement (if required). 13. The project shall be designed to eliminate light and glare onto adjacent properties or uses, including minimizing the number of light sources. The plans shall be prepared and signed by a licensed Electrical Engineer acceptable to the City. Prior to the issuance of any building permit the applicant shall provide to the Planning Department, in conjunction with the lighting system plan, lighting fixture product types and technical specifications, including photometric information, to determine the extent of light spillage or glare which can be anticipated. This information shall be made a part of the building set of plans for issuance of the building permit. Prior to issuance of the certificate of occupancy or final of building permits, the applicant shall schedule an evening inspection by the Code Enforcement Division to confirm control of light and glare specified by this condition of approval. 14. The accessory outdoor dining for the restaurant shall be used in conjunction • with the related adjacent food establishment and shall be limited to 382 sq. ft. maximum of dining area. 15. The area outside of the food establishment shall be maintained in a clean and orderly manner. 16. The outdoor dining area associated with the restaurant uses shall be limited to the area as delineated on the approved site plan only. 17. For sunshade purposes, coverings shall be limited to the use of umbrellas or retractable awnings or an open trellis structure with a minimum vertical clearance of 7 feet measured from the floor of the dining area to the lowest portion of the shade structure. The use of solid, permanent roof coverings shall be prohibited. The design of any trellis is subject to the approval of the Planning Director. 18. Alcoholic beverage service shall be prohibited in the outdoor dining areas, unless the approval of the Police Department and the Alcoholic Beverage Control Board are first obtained. Any substantial physical changes required (as determined by the Planning Department) to accommodate alcoholic beverage service shall be subject to the approval of an amendment to this Outdoor Dining Permit. . 19. The hours of operation of the outdoor dining area are limited to between INDEX • City of Newport Beach Planning Commission Minutes January 4, 2001 11 the hours of 7:00 a.m. to 10:00 p.m., daily; and that any increase in the hours of operation shall be subject to the approval of an amendment to this application. 20. No amplified music or entertainment is permitted in the outdoor dining area. 21. Outside paging systems shall be prohibited. 22. Should problems arise with regard to tables, chairs or stools encroaching into the public right-of-way, private property pedestrian access or walkways, the Planning Department reserves the right to require the removal of all or a portion of the outdoor dining area seating. 23. The operator of the restaurant facility shall be responsible for the control of noise generated by the subject facility. The noise generated by the proposed use shall comply with the provisions of Chapter 10.26 of the Newport Beach Municipal Code that provides, in part, that the sound shall be limited to no more than depicted below for the specified time periods. Between the hours of Between the hours of 7:00 a.m. and 10:00 o.m. 10:00 K)-m. and 7:00 a.m. • Measured at the property fine of Commercially zoned property: 65 dBA 60 dBA Measured at the property fine of ResidentialN zoned orooertv: 60 dBA 50 dBA 24. The patio shall be closed for the evening upon verification of non- compliance with any conditions of this Use Permit or Outdoor Dining Permit and, if the patio is not closed, the matter shall be referred to the Planning Department for action on the Use Permit and /or Outdoor Dining Permit. 25. The area of the outdoor dining shall be delineated with physical barriers designed, installed and maintained around the patio area to insure compliance with the Community Noise Control Ordinance (Chapter 10.26 of the Newport Beach Municipal Code). 26. The approval is for the establishment of outdoor dining for an existing full service restaurant facilities as defined by Title 20 of the Municipal Code, with the principal purpose for the sale or service of food and beverages with sale and service of alcoholic beverages incidental to the food use during the specified restaurant hours of operation. 27. This approval is non - transferable by the permittee or property owner; and should this business be sold or otherwise come under different ownership, any future owners or assignees shall be notified of the conditions of this •ll.l_11. • City of Newport Beach Planning Commission Minutes January 4, 2001 0 approval by either the current owner or the leasing company, that this approval does not transfer and that a new application must be approved by the Planning Department. 28. All trash shall be stored within the building or within dumpsters stored in the trash enclosure, or otherwise screened from the view of neighboring properties except when placed for pick -up by refuse collection agencies. That the trash dumpsters shall be fully enclosed and the top shall remain closed at all times, except when being loaded or while being collected by the refuse collection agency. 29. The applicant shall maintain the trash dumpsters or receptacles so as to control odors which may include the provision of fully self- contained dumpsters or may include periodic steam cleaning of the dumpsters, if deemed necessary by the Planning Department. 30. Storage outside of the building shall be prohibited, with the exception of the required trash container enclosure and existing storage structures. 31. All signs shall conform to the provisions of Chapter 20.67 of the Municipal Code 32. The rear of the building shall be altered to reinstate the required 10 -foot alley setback, with the exception of approximately 18 -feet of the width of the building starting from the northwest corner in order to accommodate existing electrical and gas utilities connections. Prior to issuance of building permits, the revised construction plans shall be submitted for review and approval by the Planning director to determine substantial conformance with is condition. 33. A trash enclosure shall be established on the properly to serve the restaurant. It shall be located in an alcove at the rear of the building and shall be located within the building in the area retained for the utilities. The trash enclosure shall be enclosed with a roll -up door. 34. The owner of the property shall record an easement agreement, or equivalent instrument, for access to the trash enclosure for the subject property, the form and content of the agreement to be approved by the City Attorney. 35. The utility panels shall be integrated within the rear building wall. The utilities shall be covered with panels or other similar material to incorporate the utilities into the wall of the building. 36. No parking or storage shall be permitted within the required 10 -foot alley setback. INDEX • City of Newport Beach Planning Commission Minutes January 4, 2001 0 0 0 Standard Conditions: 1. The proposed restaurant facility shall conform to the requirements of the Uniform Building Code. 2. The project shall comply with State Disabled Access requirements. 4. Arrangements shall be made with the Public Works Department in order to guarantee satisfactory completion of the public improvements if it is desired to obtain a building permit prior to completion of the public improvements. 4. All signs shall conform to the provisions of Chapter 20.67 of the Municipal Code 5. The Planning Commission may add to or modify conditions of approval to this Use Permit or Outdoor Dining Permit or recommend to the City Council the revocation of this Use Permit or Outdoor Dining Permit, upon a determination that the operation which is the subject of this Use Permit causes injury, or is detrimental to the health, safety, peace, morals, comfort, or general welfare of the community. 6. This Use Permit and Outdoor Dining Permits shall expire unless exercised within 24 months from the date of approval as specified in Section 20.91.050 of the Newport Beach Municipal Code kkk SUBJECT: Knost Accessory dwelling unit 431 Aliso Avenue • Use Permit No. 3687 Request to construct a 640 square foot, accessory dwelling unit on a single - family residential property pursuant to Chapter 20.85 of the Municipal Code. Senior Planner Campbell made a slide presentation noting the following: • Removal of existing pool area and garage. • Construction of a four -car garage with accessory unit above. • Project meets all Municipal Code requirements regarding parking. • Deed restrictions for the use of the facility with minimum age of the occupant of 60 years of age. • Property owner must occupy the site. • Yearly monitoring by the Planning Department of those requirements. • Two-story buildings in the neighborhood. At Commission inquiry, Ms. Temple stated that on a yearly basis letters requesting certification that the unit is occupied as required by Code are sent 10 INDEX Item No. 3 Use Permit No. 3687 Approved • City of Newport Beach Planning Commission Minutes January 4, 2001 0 11 r1 to all residences that have a granny unit. This is done on the honor of the property owner to tell us the truth and we follow up until we get all the letters answered. A use permit is required in this instance to allow a second dwelling unit within an R -1 District. It can only be constructed within the parameters of the Code and the approval of a use permit. Commissioner Kranzley asked if the City has the right to inspect a property that had been approved with a granny unit. Ms. Temple answered that we can request an inspection if there is a possibility of Code violation and /or an Inspection Warrant could be obtained if necessary. Commissioner McDaniel noted his concern of a granny unit upstairs with an exterior stairwell. If the person has to be sixty to qualify for this, how does this work? Assistant City Attorney Robin Clauson answered that the City used to require that the second unit be occupied by the owner or by the person who was over 60. We changed our ordinance to allow them to occupy the front residence and then have other family members occupy the back. Even though it is sometimes on the second floor, sometimes it is not the elderly person occupying that second unit. The requirement is that the owner has to be occupying the property. Commissioner Agajanian expressed his concern that someone could come in and get that flat unit and then sell it to somebody else and the new owner would come in and occupy one unit and rent the other unit. We would basically have two residential units. Ms. Temple noted that this could and probably does happen. The limitation of State Law and the requirements set forth in the Code require that at least one of the units be occupied by an age qualified resident and that one of the residences be occupied by the owner of the property. There is no restriction on which unit is occupied by which entity or that the elderly party in the transaction actually be a relative of the other party. Ms. Clauson noted that in the early 80's the State Law came up with requirements that the cities have to adopt ordinances allowing second units. If they did not do that within a certain time period, the State would then mandate a permit pursuant to state standards. The City of Newport Beach adopted its own ordinance for second units restricting them to granny units. We have been able to get approval from the State for this process. Ms. Wood added that the purpose of that State Law was to provide affordable housing for senior citizens. The State had no particular interest that the two parties be related, the term granny flat is a colloquial term for it. The real issue is 11 INDEX • City of Newport Beach Planning Commission Minutes January 4, 2001 is to provide affordable housing for seniors and this was seen as a way of doing that within the community. Ms. Clauson noted that the definition of a granny unit is to be the second dwelling unit with the primary unit being occupied by the owner. Mr. Campbell added that the owner must reside on the property and can be in either unit but the granny unit, which is limited to 640 square feet, must be occupied by the 60+ year old. Ms. Clauson added that the concept was that if the owner of the property is over 60 they could live in the granny unit and rent out the front. The granny unit must be in the back. We are bound by State Law to have this in our Code. Commissioner Kiser noted the concentration of the granny units within the area of the subject property. What if every property had a granny unit on it? Under State Law would it make any difference at all, could we choose to deny it because we considered there to be too high a concentration? Would that be lawful? Ms. Clauson answered that there may not be more than 10 to 15 granny units within the City. It is not an issue that has been looked at. Mr. Campbell noted that if we wanted to amend the Code and deal with the concentration issues we have to make specific findings in the adoption of that ordinance. We would then need to send that back to the State for approval. The granny unit option only applies to lots of certain size and it needs to be larger than the standard size. The way it stands with the present ordinance, they are allowed if applicable standards are met. At Commission inquiry, staff noted that the granny unit does not need to be a connected dwelling unit, it can be a separate area on the property. Public comment was opened. Mr. Jack Knost, 431 Aliso Avenue, stated that he is purchasing the house from his mother in law and building the unit to take care of her. Christopher Budnick, 501 Fullerton Avenue noted his support of the application. The neighborhood has quite a few of these units. The lot size is adequate and will not detract from the character of the neighborhood. Public comment was closed. Motion was made by Commissioner Tucker to approve Use Permit No. 3687 subject to the findings and conditions of approval attached as Exhibit 1. 12 INDEX • City of Newport Beach Planning Commission Minutes January 4, 2001 • Ayes: McDaniel, Kiser, Agajanian, Selich, Kranzley, Tucker Noes: None Absent: Gifford Commissioner Kranzley asked why granny units were not items that could be handled by the Planning Director. Ms. Temple answered that it could be made a staff issued permit if the Commission chose. Commissioner Agajanian noted that this issue needs to be brought up under the General Plan deliberation. EXHIBIT NO. 1 FINDINGS AND CONDITIONS OF APPROVAL FOR USE PERMIT NO. 3687 Finding s: 1. The Land Use Element of the General Plan and the Local Coastal Program Land Use Plan designate the site for "Single Family Detached" uses. The proposed project is a permitted use within this designation since the General Plan recognizes that certain provisions of State law supersede local land use regulation including the ability to add Accessory Dwelling Units in single family residential areas. 2. This project has been reviewed, and it has been determined that it qualifies for a categorically exemption pursuant to Section 15303 (Class 3, New Construction or Conversion of Small Structures) of the California Environmental Quality Act Implementing Guidelines. 3. The establishment, maintenance and operation of the proposed accessory dwelling unit at 431 Aliso Avenue will not, under the circumstances of this case, be detrimental to the health, safety, peace, comfort and general welfare of persons residing or working in the neighborhood of such proposed use and will be detrimental or injurious to property and improvements in the neighborhood or the general welfare of the City for the following reasons: a. The new accessory unit is in the rear of the lot and is 21 feet in height, which will help, maintain the single - family character of the area when viewed from the Aliso Avenue. No other accessory dwelling units are located in the general vicinity, which would lead to a sense of overcrowding. b. Termination of the accessory unit is required when the owner does 13 INDEX City of Newport Beach Planning Commission Minutes January 4, 2001 not have a qualifying occupant (minimum 60 years of age) or desires to become an absentee landlord. c. The size, area and bulk of the proposed construction for the accessory unit can be permitted in conjunction with a single family home. Conversion of the accessory unit can be accommodated readily when necessary. d. The proposed project provides an additional parking space within a garage. e. The proposed accessory unit is designed in such a way that it conforms to all of the development standards and restrictions set forth in Chapter 20.85 of the Municipal Code. f. Approval of the accessory unit will not set a precedent or otherwise encourage other property owners in the area to propose additional accessory units due to the restrictions on their use contained within Chapter 20.85 of the Municipal Code. Conditions: is1. The proposed development of the subject property and accessory dwelling shall be in substantial conformance with the approved plot plan, floor plans and elevations dated January 4, 2001. 2. Residents of the accessory dwelling unit shall be limited to one or two persons over the age of 60 years. 3. Commencing with the final inspection of the accessory dwelling unit by a City Building Inspector and on an annual basis every year thereafter, the property owner shall submit to the Planning Director the names and birth dates of any and all occupants of the accessory dwelling units constructed pursuant to this approval to verify occupancy by a person or persons 60 years of age or older. Upon any change of tenants, the property owner shall notify the City immediately. This information shall be submitted in writing and contain a statement signed by the property owner certifying under penalty of perjury that all of the information is true and correct. 4. The primary residence or the granny unit shall be continuously occupied by at least one person having an ownership interest in the property. Evidence of an ownership interest in the property by an occupant of either the accessory unit or primary residence of the property shall be submitted to the City prior to occupancy of the accessory dwelling unit and each year thereafter. • 5. The applicant or property owner shall record a Covenant, the form and 14 INDEX L_J 0 City of Newport Beach Planning Commission Minutes January 4, 2001 content of which is acceptable to the City Attorney, binding the applicants, owners and successors in interest in perpetuity so as to limit the occupancy of the second dwelling unit to one or two adults, 60 years of age or over, and that the primary residence or the granny unit shall be continuously occupied by at least one person having an ownership interest in the property. Additionally, this covenant shall commit the applicants, owners and successors to comply with current ordinances regarding accessory dwelling units. Said covenant shall also contain all conditions of approval imposed by the Planning Commission or the City Council. 6. One independently accessible parking space shall be for the exclusive use of the proposed granny unit, in addition to the two required parking spaces for the main dwelling. The additional parking space shall be kept free, clear, and accessible for the parking of a vehicle at all times. The entire 916 square foot, 4 -car garage shall not be converted to other use nor shall permanent obstructions to vehicular access be constructed therein. 7. This Use Permit shall expire unless exercised within 24 months from the date of approval as specified in Section 20.91.050A of the Newport Beach Municipal Code. SUBJECT: Crabby Kenny's (Ken Poole, applicant) 3012 Newport Blvd. • Use Permit No. 3688 A request to allow an existing restaurant to add the sale of general alcoholic beverages for on -site consumption (Type 47 License) in conjunction with a request to change the hours of operation. The application also includes a request to add a 110 square foot outdoor dining area. Senior Planner James Campbell made a slide presentation and noted the following: • Existing restaurant at site for over 40 years. • Does not have a use permit presently. • Restaurant has a license for beer and wine, and seeking an upgrade to that license to full service alcoholic beverages. • Extend hours of operation. • Add a small outdoor dining area of 110 square feet to the front of the establishment. • Net public area of restaurant interior includes a small bar and raw oyster bar areas. • Outdoor patio area is proposed to be in a three -foot area in the front on Newport Boulevard. 15 INDEX Item No. 4 Use Permit No. 3688 Approved n LJ • City of Newport Beach Planning Commission Minutes January 4, 2001 • Rear area serves as the main entrance from the parking lot. • The parking lot is shared with a commercial building that closes at 4 p.m. • The trash area is not properly picked up and is noted in the staff report. • Restaurant is non - conforming relative to parking and without a use permit. • This particular area has a high concentration of liquor licenses and crime statistics. • There are 8 seats by the oyster bar and there is another bar area that is for customer waiting. • An extension of hours may potentially create a bar atmosphere that could create an issue with the Alcohol Beverage Ordinance in terms of the public need and necessity is. • There are 66 ABC licenses in this census tract area that equals 1 license for every 94 persons. • There are 61 active ABC licenses in the subject Reporting District 15 as compared to 8 in adjacent Reporting District 13 and 5 in adjacent Reporting District 16. • Staff is recommending against the issuance of upgrading the Alcoholic Beverage License. There is a benefit for approving a use permit for this application, as presently there is none for this particular site. The application is considered an expansion of the present use and we are therefore requiring a use permit. Staff is also recommending that the hours of operation not be extended beyond what they presently are. Commissioner Kranzley asked what governs the hours of operation now and was answered that the hours of operation are governed by nothing other than the historical use. Ms. Clauson added that if they are legal and nonconforming because they were in existence as a restaurant prior to the requirement of a use permit, then their entitlement to continue operation is based on historical use. Staff can establish that if they closed at 11 p.m., then that is all that the use has a right to continue operating. If they want to close at a later time, they must get a use permit that would authorize that. Commissioner Kranzley asked if they were to add an additional bar, would they have to come in for a use permit? He was answered yes. Ms. Temple added that part of the problem of not having a use permit is not knowing what was there physically and the layout. We rely on what we believe to be the historic use of the property in terms of physical layout and hours of operation. One of the concerns of not having a use permit is clearly set forth conditions including hours of operation and other keys that tie into the floor plan. Often times they will just expand their hours and we would have no knowledge of it because they do not need to come to the City for approval or building permit. That is one of the advantages of getting a use permit, but in this case, we knew what the historic hours of operation were and they wish to expand those in 16 INDEX City of Newport Beach Planning Commission Minutes January 4, 2001 association with the upgrade of license. Therefore, it triggers the need to get a use permit as set forth in the Eating and Drinking Establishment Chapter of the Municipal Code as opposed to the ABO Ordinance. At Commission inquiry, staff noted that the requested area for the outdoor dining is about 3 feet wide in about a 100 square foot area. The tables would be arranged in a line facing Newport Boulevard. The tables are for food consumption only as the ABC would require the area to be secured. There is not sufficient room for that, as they would rely on the public right of way to access the tables. The Accessory Outdoor Dining provisions were drafted and the goal is be the lowest improvement necessary to be appropriate for the location and the improvement to be rather casual. It was intended to be an ancillary extra that a restaurant could take advantage of. The provisions limit the amount of improvements and encourage less rather than more. Commissioner Agajanian asked if this was approved and the applicant received their ABC license for full liquor and the establishment changed hands, does the liquor license then go to the new owner at the some site? Ms. Temple answered that the sale of the full service license is a transaction of the sale of the establishment and may or may not stay with the property. However, if the use permit is approved, the use permit authority to reinstate a new full service license remains for the period of three months in which it would have to be exercised. Chairperson Selich asked what conditions would require railings around outdoor dining applications? He was answered that it would be required to secure something from a parking area or some other area that might lead to some conflict between the dining use and other uses on site. If it is physically practical to do so, it is a way of limiting the square footage and not allow the tables to travel around and the area get larger because people are moving them. It might also be a building code requirement if there is a change in elevation for safety reasons. Ms. Clauson added that the benefit of getting a use permit is that it would give the Commission the ability to have established hours of operation and parking for the restaurant property. If the Commission granted the ABO then they would have the right for service of alcohol beverages. If any problems arose in the future and there was an action to revoke either one of those use permits, I do not believe the applicant would lose their legal non - conforming right to continue the restaurant with its historical use that they had. A revocation would be a revocation of the extended hours or the additional seats of the outdoor dining or a revocation of the upgraded permit, but not for the whole restaurant use. Capt. Tim Newman of the Police Department at Commission inquiry stated that if the Commission limited the hours as staff is suggesting, some of the concerns 17 INDEX City of Newport Beach Planning Commission Minutes January 4, 2001 that the police have would be mitigated. The staff report expresses our concerns with the late hours, as they tend to change the type of operation in our experience in dealing with similar operations throughout the city.. The other consideration we have is the enhancement of the availability of alcoholic beverages that can be contributing factor to problems in an area. Between those two factors, the hours are the most significant. Chairperson Selich noted that in the floor plan there is a lot of area dedicated to bar space. It appears that there are at least 20 seats divided among three bars, if the bar area was reduced to 8 -9 seats would that be a further help? Would you still be looking for more mitigation if we changed the number of seats and limited the hours of operation? Capt. Newman answered yes. Any effort to direct the character of the operation so that it remains more of a restaurant type would help. Our concern is that this type of land use in this particular area creates an environment where additional problems can occur. We have not had problems at this site, but restaurants that stay open late and turn into bars do cause quality of life problems for our community. We have a lot of those quality of life problems in this particular portion of our community now. Anything that can be done administratively to provide tools and conditions to minimize those problems in the future is a positive thing for us. Any type of modification to the existing use can create an environment where future problems could occur. Commissioner Kiser asked if since the use of this site by Crabby Kenny's has there been any problems from a police enforcement perspective with this particular operator to date? Captain Newman answered that there have been no problems with the current proprietor. The level of alcohol related offenses that occur in this particular area is significant. It is much more than in other portions of the community. There have been some changes in the number and type of operations that are in existence in the neighborhood. There has been a reduction in some level of activities in the area. One of the characteristics of previous problems was with multiple bars in the area; people would walk from one establishment to another late at night. It does create problems for the residents in the neighborhood and causes police related activities. Most of the concentration of bar problems occur after 11 p.m. and do not occur so much between 6 p.m. to 10 p.m. Public comment was opened. Keith Bohr spoke representing the application. He noted that the outdoor dining that is being asked is for patrons who smoke. If that is a swaying issue, it can be taken off the table. Continuing, he noted that: ' . Asking for the full alcohol for the purpose of competing with the other 18 INDEX 0 • E City of Newport Beach Planning Commission Minutes January 4, 2001 local establishments. Some customers do not come back when they find out that they can not be served alcohol. • All of our food service will be until closure. • High -end restaurant, casual and rustic with spending $20 to $30 a piece. • Bar area has 8 seats. • Stools around the raw oyster bar are not serviced for alcohol. • The other seating is for a waiting area that does not have alcohol service, but the customer can go and order something from the bar. • Hours - people can come in late on a Friday or Saturday night especially during the summer that adds to our bottom line. • We are not adding any seats nor change to our customer base. • We have another operation in Huntington Beach that has a full alcohol and has had no problems to date. • Looking to open up a series of these restaurants with full alcohol. • It is not a bar, no screens, no jukeboxes and no live entertainment. In conclusion he asked that Exhibit B be approved with condition 20 revised to 8 a.m. to 12 p.m. Sunday through Thursday, and 8 a.m. to 1 a.m. Friday and Saturday. We don't know if we will serve breakfast, but this will give is the leeway. The reason we are now open 11 a.m. to 11 p.m. is because the beer and wine license that we bought with the restaurant had those conditions of approval. At Commission inquiry, he noted that the Crabby Kenny's in Huntington Beach has been opened for seven months; it closes at 1:30 a.m. seven nights a week; there have been no response for police calls to the site. Commissioner Agajanian asked which would be most critical to the bottom line, extended hours or the full alcohol license? Is one more critical? Mr. Bohr stated that his client assured him that it was not worth it to go forward with this approval and all of the restrictions that come with it if the hours were not extended. There are a lot of values being taken on by having a use permit. The applicant wants to have both, the full alcohol and extended hours. Chairperson Selich referring to the plan in the staff report counted 25 bar seats including the raw bar. One of the things we have to take into consideration is that this permit runs with the land and not the operator. Should your business leave the premises and another business comes in, we have to be concerned with how the facilities will be used in the future. Even though you say the raw bar is not serving drinks, it has the potential to become a bar. I see these 25 seats and you are asking for 94 seats and it appears as though we have almost 25% of the seats going to bar use or potential bar use. Do you have any objection to eliminating the drink counter and the raw counter and replacing them with tables? You would still have 88 seats but by limiting the bar to the 8 seats would equal 1017. of the overall seating. The intent is to turn the floor plan more of a restaurant and less of a bar to ensure that it remains a restaurant and not solely converts to a bar as the business climate may dictate over time. 19 INDEX • City of Newport Beach Planning Commission Minutes January 4, 2001 Mr. Bohr stated that seven seats along the left of the bar are along a fish tank. If you want to put a restriction that nobody could then put bartenders instead of the fish tank at a later date, we agree. This is just a counter to sit at, if you want to impose no alcohol at the raw bar, you can do that. Again, we are not a bar to come and sit and have drinks. We are not willing to remove the bar seats because we can still have the same amount of people but they will be sitting at tables rather than at a bar. Tony Sheperdson, 421 31st Street, stated that he is concerned with the quality of life in the Cannery Village area. In my opinion if the hours are extended to 1 a.m., it is going to be a drinkers' bar. What I've experienced living in that community with the bars is fists punched through my windows; people urinating in my bushes; I pick up beer bottles every week; patrons get sick on the sidewalk and this must be cleaned up every morning. Since one of the bars closed, we have had fewer disturbances than we have had in the past. I am grateful for that, but there are still things that go on that are not pleasant for the residents of the area. I feel that another hard liquor bar is beyond me what good can come of this. I understand that the City would have jurisdiction, but it would be a detriment to our way of life. We are trying to cope with the existing bars. I urge that you deny this application. At Commission inquiry, even if the hours were limited to 11 p.m., he would be in opposition to this application. Patricia Hilton, 425 31st Street noted that had this application not hit at this holiday time, there would have been a very strongly worded petition signed by each and every one of the residents against this use permit for hard liquor and extended hours at Crabby Kenny's. I do have a letter from Mary Williamson stating her strong opposition to this use permit; she is unable to attend the meeting tonight and asked that I present this on her behalf. We can barely tolerate now the loud voices and exuberant after hours conduct of the 11 p.m. to 2 a.m. drinking crowd as they walk back to their vehicles parked on 31st Street waking us up in the early morning hours every Friday and Saturday night. We have monthly episodes of vandalism from patrons of the existing bars and we still have some mess of human excrement and debris to clean up in our front yards. We have to hose down our property every Saturday and Sunday morning, we're sick of it! Another place to drink late after everyone has finished eating at 11 p.m. is going to bring more drinkers. There is not enough parking so they all park along 31st Street. I would like to point out that the Crab Cooker doesn't seem to have any problem serving only beer and wine. It seems to me a family restaurant serving oyster bar and good fish if that is their competition, I don't know why the applicant thinks Malarkey's and the beer bars and late hour drinking bars are their competition. With hard liquor and extended hours, this will become a bar; it's not going to end up a family restaurant like the Crab Cooker. I think I speak for every resident in the entire Cannery Village area that we just can not tolerate an escalation of an already existing problem. At Commission inquiry, she answered that if the restaurant closed at 11 p.m. the patrons are standing in the parking lot and drinking. The parking lot is a mess 20 INDEX . City of Newport Beach Planning Commission Minutes January 4, 2001 0 0 0 and the applicant does not take care of it now. I don't see this being a family restaurant with hard liquor. If they close at 11 p.m., who is going to police the parking lot? The owners haven't been doing it. Suzanne Finnemore, 419 31st Street stated that she built her three story building a year ago and has the luxury of looking over the building next door to see the parking lots of Rudy's and Crabby Kenny's and what goes on there. The problem is that 31st Street is lined with cars in front of all the houses. I have a little bit of landscaping in front and I have to clean up beer bottles, paper cups and vomit. When the restaurants close, the patrons congregate in the parking lots for hours. The patrons will then bar hop and go from one bar to another, etc. I don't see how having another bar that is going to serve hard liquor is going to do any good in the neighborhood at all. Thomas Dixon, 428 31st Street noted his opposition to this application for similar reasons stated by previous speakers. Chairperson Selich asked the applicant if he did not get the requested hours of operation is it still feasible for you to move ahead? If it is the determination of this Commission that we go with the staff recommendation of closing at 11 p.m. I take it that is not acceptable to you? Mr. Bohr stated that he would not say that at this time. Public comment was closed. Commissioner Kranzley noted his opposition to this application. I agree with the residents who spoke that it has been a long hard road in the Cannery. To intensify an alcohol use whether they close at 11 p.m. or 1 a.m. it is still a contribution to the problem. The police know when all the bars and restaurants close and see the groups go from one place to another as they close. As I have said in a number of past hearings, as the Planning Commission continues to approve new alcohol uses in District 15. This is ground zero for alcohol related crimes in Newport Beach. This is the worst - reporting District in the entire City. One of the reasons we instituted and created that Alcohol Beverage Ordinance in 1998 was to specifically address issues that we had in this neighborhood. The Planning Commission has only denied one intensification and that denial was overturned by the City Council. I have no understanding why we have an Alcohol Beverage Ordinance if we are not going to use it in Reporting District 15. 1 would encourage the other Commissioners to envision a Corona del Mar with bars and restaurants at every other store front and crime rate three times anyplace else in the City whether they would be encouraged to approve an additional intensification of a permit in that area. We understand that there are a lot of restaurants and bars on the peninsula, it doesn't mean we need more nor that we are setting precedent that everybody who comes down here and asks for a permit should get one; and that is what we are doing right now. It is time to stop! 21 INDEX . City of Newport Beach Planning Commission Minutes January 4, 2001 n U 0 0 Commissioner McDaniel noted he went to dinner there last night. My wife and I were the only two people eating; everybody else was at the bar. When I walked in, it looked like a bar. Listening to the public testimony, it seems that this is more of a problem then I originally thought. I don't think this fits so I will not be supporting this application. Commissioner Agajanian noted that the extension of the hours is a contributing factor and he was not going to support this application because of the intensification of the alcohol use. Commissioner Tucker noted his support of the full liquor license if the hours did not change and we made changes to the floor plan to assure ourselves it is not a bar. I visited the facility and agree that it does have a feeling of a bar. Elimination of several of the seats especially along the counter of the west side of the bar would be something I would like to see. The hours need to stay the same; the number of seats need to remain the some and the outdoor seating needs to be dispensed with. The parking lot should also have some hours associated with it if we approve this application. With the limitation of the hours, it is not going to be a bar. If the hours are not limited, it is a bar and I would not be in favor of it being a bar. Commissioner Kiser agreeing with the comments of previous speaker stated his support of this application only with the hours not past 11 p.m. and a redesign of the bar areas so that tables were there. He noted he too visited the facility and observed the bar areas. Chairperson Selich noted his support of the application if: the hours were limited and if the oyster raw bar and drink counter were eliminated and limit to a maximum 8 seats at the drink bar and the rest of the floor area turned into seats and remain at a maximum of 88 seats. Commissioners McDaniel and Agajanian noted their support of these provisions. Commissioner Kranzley noted that when you look at the five issues in the Alcohol Beverage Ordinance on staff report page 8, there is one of those five that we could in good conscience find, which is that the proximity of the alcoholic beverage outlet to residential districts, day care centers, park and recreation facilities, places of religious assembly, and schools. We don't have a problem, as there are no schools there. However, public convenience, the crime rate, number of alcohol licenses per capita, number of alcohol - related calls for service, each of these is so overwhelmingly against the approval of this project. I just don't understand it, why do we have an Alcohol Beverage Ordinance if we are not going to use it, especially in this District? 0 INDEX City of Newport Beach Planning Commission Minutes January 4, 2001 The applicant was asked to step forward. Chairperson Selich noted his intent to make a motion to limit the project to 8 bar seats; eliminate the raw bar and drink counter; limit the project to 88 seats arranged how you wish in the remaining area after removal of the drink counter and raw bar. Is that acceptable to you or not? Mr. Bohr answered that they would accept that and hope that they prove to be good neighbors and in a few years come back and maybe look at it again. I am confident we can adhere to all those restrictions. Commissioner Kiser clarified that his support of this full alcohol license was that a revised floor plan is presented to the Planning Commission for close scrutiny as to how the tables were laid out, how the restaurant looked and whether it ended up looking like a restaurant or something that could very easily be flipped into a bar. I would have trouble trying to formulate something tonight that would be acceptable unless we went into a great detail about what the bar area is to look like after this was approved. Chairperson Selich asked if we designated that the raw bar and the side bar be eliminated and that the applicant submit a floor plan for our review as to its conformance tonight, would that suffice? • Commissioner Kiser answered yes, it would be with the understanding to see normal height tables for dining, not a size that would be if people were in a bar. Motion was made by Chairperson Selich to approve Use Permit 3688 with the conditions and findings as recommended by staff with the additional condition that the existing drink counter be removed, the existing raw bar counter be removed and the existing serving bar for alcoholic beverages be limited to 8 seats and that the total project be limited to 88 seats as recommended by staff, and the applicant submit back to the Planning Commission a revised floor plan that shows the complete lay out for the total 88 seats including the 8 bar seats. The intent of the Commission is to have this facility operate as a restaurant and not as a bar and that all the tables submitted shall be of normal table height except for the 8 seats at the bar. Additionally, the outdoor dining seats are eliminated as agreed to earlier by the applicant. Condition 20 shall be amended to read that the parking lot shall be cleared of patrons and patrons' cars by 11:15 p.m. each evening. A correction to condition 1 is to be made for the date of 2001. Ayes: McDaniel, Kiser, Agajanian Selich, Tucker Noes: Kranzley Absent: Gifford 23 INDEX • City of Newport Beach Planning Commission Minutes January 4, 2001 L� EXHIBIT "B" FINDINGS AND CONDITIONS OF APPROVAL FOR USE PERMIT NO. 3688 Findings: 1. The Land Use Element of the General Plan designates the site for "Retail and Service Commercial' use. A restaurant use with alcoholic beverage sales and service is considered a permitted use within this designation and is consistent with the General Plan. 2. The project has been reviewed, and it has been determined that it is categorically exempt under Class 1 (Existing Facilities) requirements of the California Environmental Quality Act. 3. The project meets the purpose and intent of the development standards of the Municipal Code for an upgrade to the existing alcohol license for an existing restaurant and the existing physical characteristics of the site are not proposed to be altered. 4. The proposed project is consistent with the purpose and intent of . Chapter 20.89 of the Zoning Code (Alcoholic Beverage Outlets) and will not, under the circumstances of the case, be detrimental to the health, safety, peace, morals, comfort and general welfare of persons residing or working in the neighborhood or be detrimental or injurious to property or improvements in the neighborhood or the general welfare of the City and is consistent with the legislative intent of Title 20 of this Code for the following reasons: a. The restaurant use is compatible with the surrounding commercial uses since restaurant uses are typically allowed in commercial districts. b. The convenience of the public can arguably be served by the sale of desired beverages in a restaurant setting. c. The proposed use is a continuation of the existing restaurant use, which serves the residential and commercial uses and visiting tourists in the area. d. The percentage of alcohol - related arrests in the police reporting district in which the project is proposed is higher (16.34%) than the percentage citywide. e. Conditions of approval have been included which should prevent problems associated with the sale and service of alcoholic beverages. f. On site parking is available for the use. g. The alcoholic beverage service is incidental to the primary use of 24 INDEX n City of Newport Beach Planning Commission Minutes January 4, 2001 the facility as a restaurant. The establishment will provide regular food service from the full menu at all times the facility is open. No live entertainment is permitted. Conditions: The development shall be in substantial conformance with the approved site plan and floor plans dated January 4, 2001 as modified exEept- as weed be by the Planning Commission. A revised floor pion shall be submitted to the Planning Commission for approval, and shall reflect the following. • The existing drink counter be removed • The existing raw bar counter be removed • The existing serving bar for alcoholic beverages be limited to 8 seats (counted as part of the total 88 seats). 2. Any iae{ease afteroffon to the approved plan area shall be subject to prior approval of a use permit. ' 3. The interior dining area shall be limited to 88 seats maximum as delineated on the approved revised floor plans. In no case shall the maximum seating capacity exceed that which is established by the Fire Marshal. Any increase in the number of seating for customers shall be subject to approval of a use permit. 4. The interior net public area shall be limited to 11275 iq. it. the area as delineated on the eppreved revised floor plans. Any increase in the net public area shall be subject to the approval of a use permit. 5. This use permit may be modified or revoked by the City Council or Planning Commission should they determine that the proposed uses or conditions under which it is being operated or maintained is detrimental to the public health, welfare or materially injurious to property or improvements in the vicinity or if the property is operated or maintained so as to constitute a public nuisance. 6. In addition to any other grounds provided for herein, three or more sustained complaints within a 12 month period received by the Newport Beach Police Department regarding disturbances which have been caused by patrons, staff or entertainment at the site will be grounds for revocation proceeding. 7. The applicant shall comply with all federal, state, and local laws. ' Material violation of any of those laws in connection with the use will be 25 II:h1_:0:4 City of Newport Beach Planning Commission Minutes January 4, 2001 0 cause for revocation of this permit. 8. The approval is only for the establishment of a full -serve, high turnover, eating and drinking establishment and alcoholic beverage outlet as defined by Title 20 of the Municipal Code, as the principal purpose for the sale or service of food and beverages. This approval shall not be construed as permission to allow the facility to operate as a bar or tavern use as defined by the Municipal Code, unless the Planning Commission first approves a use permit. 10. The type of alcoholic beverage license issued by the California Board of Alcoholic Beverage Control shall be full alcohol service for on -site consumption only and only in conjunction with the service of food as the principal use of the facility. The sale for off -site consumption of alcoholic beverages is prohibited. Any upgrade in the alcoholic beverage license shall be subject to the approval of an amendment to this application and may require the approval of the Planning Commission. 11. The service of alcoholic beverages shall be restricted to the interior of the building, unless the appropriate approvals are obtained from the Police Department and the California Board of Alcoholic Beverage Control. 12. Alcoholic beverage sales from drive -up or walk -up service windows shall be prohibited. 13. Trash receptacles for patrons shall be conveniently located both inside and outside the proposed facility. 14. Trash generated by the business be screened from view from adjoining properties except when placed for pick -ups by refuse collection agencies. 15. No outdoor loudspeaker or paging system shall be permitted in conjunction with the proposed operation. 16. Loitering, open container, and other signs specified by the Alcoholic Beverage Control Act shall be posted as required by the ABC. 17. No live entertainment or dancing shall be permitted in conjunction with the permitted use. 18. No temporary "sandwich" signs or similar temporary signs shall be permitted, either on -site or off -site, to advertise the restaurant. 0 26 INDEX • City of Newport Beach Planning Commission Minutes January 4, 2001 19. Upon evidence that noise generated by the project exceeds the noise standards established by Chapter 20.26 (Community Noise Control) of the Municipal Code, the Planning Director may require that the applicant or successor retain a qualified engineer specializing in noise /acoustics to monitor the sound generated by the restaurant facility to develop a set of corrective measures necessary in order to insure compliance. 20. The alcoholic beverage outlet operator shall take reasonable steps to discourage and correct objectionable conditions that constitute a nuisance in parking areas, sidewalks and areas surrounding the alcoholic beverage outlet and adjacent properties during business hours, if directly related to the patrons of the subject alcoholic beverage outlet. If the operator fails to discourage or correct nuisances, the Planning Commission may review, modify or revoke this use permit in accordance with Chapter 20.96 of the Zoning Code. 21. The hours of operation shall be limited between 8 AM and 11 PM daily. The restaurant operator shall ensure that the on -site parking lot shall be vacated by 11:15 p.m. daily. 22. A special events permit is required for any event or promotional activity outside the normal operational characteristics of this restaurant business that would attract large crowds, involve the sale of alcoholic beverages, include any form of on -site media broadcast, or any other activities as specified in the Newport Beach Municipal Code to require such permits. 23. The exterior of the restaurant and alcoholic beverage outlet shall be maintained free of litter and graffiti at all times. The owner or operator shall provide for daily removal of trash, litter debris and graffiti from the premises and on all abutting sidewalks within 20 feet of the premises. 24. Full menu food service items shall be available for ordering at all times that the restaurant establishment is open for business. 25. All owners, managers and employees selling alcoholic beverages shall undergo and successfully complete a certified training program in responsible methods and skills for selling alcoholic beverages. To qualify to meet the requirements of this section a certified program must meet the standards of the California Coordinating Council on Responsible Beverage Service or other certifying /licensing body, which the State may designate. The establishment shall comply with the requirements of these conditions within 180 days of the effective date of this Use Permit. 26. Records of each owner's, manager's and employee's successful completion of the required certified training program shall be maintained 27 INDEX • City of Newport Beach Planning Commission Minutes January 4, 2001 is on the premises and shall be presented upon request by a representative of the City of Newport Beach. 27. Health Department approval is required before issuance of a building permit. 28. A handicapped accessible public restroom is required. The restroom must be in compliance with the Uniform Plumbing Code and all applicable Uniform Building Code requirements. 29. Kitchen exhaust fans shall be designed to control smoke and odor to the satisfaction of the Building Department. 30. Where grease may be introduced into the drainage systems, grease interceptors shall be installed on all fixtures as required by the Uniform Plumbing Code, unless otherwise approved by the Building Department and the Utilities Department. 31. Delivery vehicles shall park within the on -site parking lot and shall not be parked within the alley for the purpose of picking up delivery orders. 32. Employees of the subject facility shall park their vehicles on -site at all times. 33. The door from the dry storage area to the rear of the facility shall remain closed at all times except for deliveries. 34. Should this business be sold or otherwise come under different ownership, any future owners or assignees shall be notified of the conditions of this approval by either the current owner /operator or leasing company. 35. An additional emergency exit be provided as per the Uniform Building Codes requirement for exiting. 36. A self - closing and locking gate be installed on the existing refuse storage area pursuant to section 20.82.040 of the City of Newport Beach Municipal Code. 37. The applicant shall provide illumination for the parking area at the rear of the property. The site illumination plan must be submitted to the City of Newport Beach Planning Department for approval. 38. This Use Permit shall be terminated if the operation is no longer maintained as a "bona fide public eating place" as defined by the California Department of Alcoholic Beverage Control. 0 28 INDEX . City of Newport Beach Planning Commission Minutes January 4, 2001 i 0 Standard Reauirements 1. The project is subject to all applicable City ordinances, policies, and standards, unless specifically waived or modified by the conditions of approval. 2. All signs shall conform to the provisions of Chapter 20.67 of the Municipal Code. 3. The facility and related off - street parking shall conform to the requirements of the Uniform Building Code. 4. All improvements shall be constructed as required by Ordinance and the Public Works Department. 5. Public Improvement may be required of a developer per Section 20.91.040 of the Municipal Code. 6. The project shall comply with State Disabled Access requirements 7. This Use Permit for an alcoholic beverage outlet granted in accordance with the terms of this chapter (Chapter 20.89 of the Newport Beach Municipal Code) shall expire within 12 months from the date of approval unless a license has been issued or transferred by the California State Department of Alcoholic Beverage Control prior to the expiration date. 8. The Planning Commission may add to or modify conditions of approval to this Use Permit or recommend to the City Council the revocation of this Use Permit upon a determination that the operation which is the subject of this Use Permit causes injury, or is detrimental to the health, safety, peace, morals, comfort, or general welfare of the community. 9. This Use Permit shall expire unless exercised within 24 months from the date of approval as specified in Section 20.80.090A of the Newport Beach Municipal Code. 10. The operator of the restaurant facility shall be responsible for the control of noise generated by the subject facility. The noise generated by the proposed use shall comply with the provisions of Chapter 10.26 of the Newport Beach Municipal Code. The maximum noise shall be limited to no more than depicted below for the specified time periods unless the ambient noise level is higher: OWN INDEX • City of Newport Beach Planning Commission Minutes January 4, 2001 0 Residential property: Between the hours of interior exterior 45 dBA 55 dBA Residential Property located Within 100 feet of a commercial Property: 45dBA 60clBA IMixed Use Property 45dBA 60clBA Commercial Property: N/A 65dBA ••• SUBJECT: The St. Clair Company 500 Superior Avnue • Use Permit No. 3679 Between the hours of interior exteri r 40dBA 50 dBA 45dBA 50 dBA 45dBA 50 dBA 60dBA A request for the approval of a Use Permit to exceed the basic height limit of buildings of 32 feet up to 50 feet, in conjunction with the remodel of an existing 416,499 square foot research and development site. The project involves the demolition of 208,926 square feet of existing development and the construction of 207,920 square feet for a total of 415,493 square feet. Associate Planner, Eugenia Garcia noted that a supplemental report is presented to provide responses to questions raised by members of the Commission and suggested changes and clarifications to staff's report for the project. Continuing, she noted the four findings for the approval for the increased building height: • Finding Number 1 - The increased building height would result in more public visual open space and views than is required by the basic height limit in any zone. Particular attention shall be given to the location of the structure on the lot, the percentage of ground cover and the treatment of all setback and open areas. • Finding Number 2 - The increased building height would result in a more desirable architectural treatment of the building and a stronger and more appealing visual character of the area than is required by the basic height limit in any zone. • Finding Number 3 - The increased building height would not result in undesirable or abrupt scale relationships being created between the structure and existing developments of public spaces. Particular attention shall be given to the total bulk of the structure including both horizontal and vertical dimensions. • Finding Number 4 - The structure shall have no more floor area than could have been achieved without the use permit. 30 INDEX Item 5 Use Permit No. 3679 Continued to 01/16/2001 • City of Newport Beach Planning Commission Minutes January 4, 2001 0 Staff has included responses to these findings within the report with additional clarifications and changes to Exhibit A as noted on pages 3 and 4 of the Supplemental Report. Chairman Selich asked if the Commission wished staff to review the questions and answers. He was answered no. Commissioner Tucker asked: • If this application would involve any other 'discretionary' approvals under CEQA? He was answered, no. • Would any CEQA analysis be required if the applicant did not seek a use permit? He was answered, no. • The existing use permit stays in effect and demo and rebuilding of Buildings A and B at 32 feet occurs with no CEQA requirement that the applicant would have to go through. He was answered, that was correct. • If the applicant asked for additional height, does CEQA apply in its entirety although only a design feature is involved, which is the scale of the facility? He was answered, that is correct. • Even though we would be talking about how the site would be designed we would get into things like traffic and those types of issues? He was answered, yes. • If the CEQA process became too burdensome, could the applicant redesign the project so that no CUP is needed, and then the City could end up with as much intensity as the applicant is proposing but with a less appealing design? He was answered, yes. Continuing, he asked: • The zoning of the property allows for a wide range of moderate to low intensity industrial uses and limited accessory and ancillary commercial and office uses. Where is that line of demarcation between something that is limited and ancillary and accessory and something that is more like an office project use? How do we know when we have crossed over? Ms. Clauson answered that there is a judgement call to be made based upon the definitions of ancillary and accessory, which talk about ancillary to the primary approved use. You have an instant demarcation of something less than 50%. The language is strong enough to indicate less than that even. You have to be able to show that the office use was in support of or part of the actual R& D use. It can not be a separate office use for some other reason. If it became something more than office as opposed to R & D, then that would be the primary purpose of the use and I don't think it would be approved. Ms. Temple added that part of the issue and staff will be reviewing in terms of the tenant improvements are monitoring business licenses and other ways to 40 assure that the uses are consistent with the approved use through the traffic study and general plan designation and zoning, to assure that the uses are of a 31 INDEX • City of Newport Beach Planning Commission Minutes January 4, 2001 0 character and nature as described in the use classifications in the zoning code. That can be difficult because many R & D operations include spaces that look like offices and in fact R & D operations occur in these spaces. For instance computer software design and development. It is a burden on the City when reviewing both tenant improvement plans and the businesses that go in there to assure that the businesses themselves fall within those use classifications and to make sure that this owner and any subsequent owners understand those limitations. If those uses change to a conventional, general purpose office use where attorneys, business, landscape architects or any other conventional office type of user comes in, that is not the kind of use that is allowed pursuant to the approvals within the zoning district and the TPO approval and General Plan. Commissioner Tucker noted that it is not clear. There is a circumstance for the traffic analysis that contemplates not a terribly intense type of use, the R & D use, in terms of traffic generating features. From the ITE standpoint is one thing but how this may evolve maybe something that is different. The R & D use is vague. This could end up being different than what I think people think it might be and then you realize when you look at the Zoning Code versus how the uses are now implemented, the intensification of the project might happen. Ms. Temple noted that we have that challenge in virtually any project we approve with perhaps the exception of residential development. A commercial shopping center can over time evolve into greater and lesser intensities based on market conditions and what people are interested in shopping for. That is why we use the average trip generators in the broader sense. Commissioner Tucker then noted that the staff report indicates that in order for us to conclude that a greater height is something that we are willing to go along with that the trade off is that we need to see a stronger more appealing visual character of the project. If that is the case, the entire design characteristics of this project then become part of our purview and part of what it is that we need to review. The parking spaces that are required and allowed, the project is actually parked at 3.42 spaces per 1,000 square feet, which is a lot more than R & D and not that much less than office. Have we given any thought to perhaps that they have more than they need and the intensification could happen without our noticing it, have we given any thought to suggest to the applicant that they have fewer parking spaces and maybe more landscaping as part of that design trade off? Ms. Temple answered that was not discussed or analyzed in the staff report as an option. Based on at least part of the time that Hughes was operating in a full employment mode on that site, that they had a clearly conforming use and needed those parking spaces. The analysis shows the parking requirement established in 1997. Were we correct in making that change based on a conventional parking table from a professional publication as opposed to what 32 INDEX • City of Newport Beach Planning Commission Minutes January 4, 2001 in our experience facilities of this nature do sometimes demand? Clearly there were points when Hughes and then Raytheon that a lot of that parking was in fact not used. In this case, we do know that the adjoining residential neighborhood does experience overflow - parking problems from some of the medical offices in proximity to it as well. They are very concerned about the adequacy of the parking in the neighborhood and since the applicant was showing a healthy surplus of parking in an arrangement that it would be an advantage to the project over the long term as the ebb and flow as business goes, to make sure that the project has more than enough parking to serve it. Commissioner Kranzley then asked • Historical use has been 55% administrative and 457o R & D - staff answered that the previous use permit analyzed the parking on that basis for analysis purpose. • 55% parked for administration would be 1 per 225 square feet that would be a requirement of 1,015; 45% parked for R & D would be 1 per 500 square feet that would be 374 spaces with a total requirement of 1,389 spaces. How did you get the 831 spaces? Ms. Garcia answered that the 831 was derived by taking the total square 16 footage and dividing it by the 2 per 1000 that is required for R & D in the Code today. Staff did an analysis of the parking on site and with the available parking came up with a maximum of 75% could be devoted to office. Ms. Wood added that the different ratios for office and R & D were never a code requirement and never a condition of approval. Staff used that as a method of analysis in the previous use permit and what we are basing it on for the review of this use permit is what the Code requires, which is one ratio for all the uses in this classification (1 per 500 square feet). Commissioner Kranzley noted his concern that if it becomes more than administrative, than that 1 space for 500 square feet would not be adequate for that use. If this is parked 1 for 500, then it is way over - parked. Our experience is if there is more administrative than R & D then that is not adequate. Ms. Temple stated that if the nature of the R & D use ends up with a higher employee density due to the nature of the business being conducted, then 1 per 500 could prove to be inadequate even if the use was conforming with the General Plan Zoning and Traffic Study limitations. Commissioner Kranzley then asked why the intersection at Riverside and Pacific Coast Highway was not referred to in the Traffic Study? Mr. Edmonston answered that even though this was not a required study under the TPO, we applied the same approach and methodology. That was to look at the approximate size of the project and proximity to intersections that are of 33 INDEX f City of Newport Beach Planning Commission Minutes January 4, 2001 concern under the TPO. One of the tools used in this evaluation was the previous Hughes Study, which showed approximately 7% of the traffic going down Coast Highway through that intersection. Looking at the amount of traffic we are talking about this use generating, it was a very small increment and well under the 1% threshold that would have typically been used. Commissioner Agajanian referring to page 4 asked about the discrepancy of approximately 60,000 square feet of all buildings on site? Is there a heliport? Ms. Garcia answered that staff conducted a review of all the permits on this site. What was found was that the City had issued some building permits that were minor additions (10,000 and 60,000). These permits had not come back to the Planning Commission for approval for those additions. A compilation of 28,604 square feet is what was derived without counting the peripheral mechanical and other smaller buildings on site. Staff is comfortable with this amount. No heliport is there. Ms. Temple added that you do not need a use permit or an amendment to a use permit to add floor area if it is within your zoning and general plan limitation. The use permits where we derived some of the original numbers from were use permits to allow the buildings to exceed the basic height limit. If the new additions complied with the height limitations, and otherwise conform to the zoning requirements they would be permitted. The project is within, currently and with this proposed project, its Zoning and General Plan square footage limitation. At Commission inquiry, staff noted that the project has a certain amount of square footage that is entitled. The applicant could reconfigure that in any way. The two existing buildings are to remain and will be remodeled. The proposed site plan reflects the numbers that the applicant has indicated. The FAR Ordinance lists this use (R & D) as a maximum FAR use, which is .75. It could be built up to .75 although the TPO limits it to the 416,499 square feet. Assuming that the traffic was not affected, the applicant could build up to .75. Ms. Temple noted that staff would monitor the business types through the business license tool to assure that the businesses meet the qualifications and parameters. We can provide training and oversight in reviewing the business licenses to make sure those businesses know their limitations of operations to be considered a legal use. Potential tenants will know in advance whether in fact they can legally occupy space on this site. Chairperson Selich asked how over time market conditions may be such that it is not marketable as R & D. If this use turns into office spaces with multi- tenants moving in and out, how is it going to be controlled? Ms. Temple noted that because of initial review of the floor plans and the assurance that the actual physical plant is suitable for the permitted use R & D, 34 INDEX • City of Newport Beach Planning Commission Minutes January 4, 2001 if that erosion got to a point of the magnitude expressed, eventually tenant improvements would have to be made to create spaces suitable for those uses as they are somewhat different. At that point, we would become aware of what was going on and then the property owner would be informed that those uses were not consistent. Commissioner Tucker noted that the trip distribution was based upon the assumptions in the Kunzman 1983 report. Is a trip distribution assignment from 1983 still appropriate in 2001 with all that has been built? Mr. Edmonston answered yes. The great majority of commuting patterns is in to the City from the north because that is where the bulk of the residential community can access our City. We looked at that and the percentages are fairly consistent with other projects we have approved in the more coastal area of the City as opposed to by the airport. They are based upon input from the consultants, businesses that have zip code surveys of their employees but certainly not something that we can rely on with a great deal of accuracy. Commissioner Tucker asked about the trips attributable to this project under the ITE criteria how does that match to the number of parking spaces that exists in this project? It seems there are more parking spaces in which to put people than we are allocating trips to this project. Mr. Edmonston answered that the anomaly of this project is that it is showing greater peak hour traffic because it does not have the multiple shifts that Hughes had. It is showing less daily traffic. When Hughes built that structure, they had a horrible parking impact on the adjacent neighborhood. We had time limit parking and a lot of enforcement. When the structure was built initially it was not heavily occupied. There is some evidence that it may have been over - parked for much of its life anyway. Commissioner Tucker noted that the amount of trips that were allocated this project was an R & D classification. Yet we have seen with the number of parking spaces that are there and the need for the parking spaces, I wonder if that was the right designation for the purposes of looking at the project traffic generating features. Should we have considered it half R and D and half office for traffic features? Have we looked at any alternative traffic generating characteristics to try and make sure that what we are looking at we weren't kidding ourselves? Mr. Edmonston answered that we did not look at alternative sites. We have had several conversations about the use of this ITE designation as being the one that is most applicable based on the zoning and restrictions on there that this project has to comply with unless they want to do a General Plan Amendment. We felt that this was the land use that was applicable. Ms. Temple added that research and development uses have administrative 35 TD] . City of Newport Beach Planning Commission Minutes January 4, 2001 • support offices associated with them as ancillary and part of the business. When ITE establishes a rate, it is basing it upon counts of businesses that are R and D business but which have these types of office uses within them. The rate is inclusive of all the various activities and categories of uses that occur within the business itself. When we talked about what percentage of office versus what percentage of manufacturing, etc, the important thing is to come up with the mechanism we need to assure that the businesses that occupy the space meet the research and development use classification. So long as we can do that, we can be reasonably assured that the traffic generating categories we used are appropriate and can continue to enforce that. Commissioner Tucker then expressed his concern that there could be more people at that facility than what an R and D type of facility might have been a few years ago under ITE because things have changed. It would not surprise me at all if they used all the parking spaces on the site. He then confirmed that because the trips generated by this site are less than prior uses, no TPO analysis was required. No mitigation would be required even if the level of service were above D and ICU increased by .01 or greater because we do not get to the threshold TPO analysis. Mr. Edmonston answered that the potential is there to require mitigations under CEQA. Ms. Temple added that, at least for intersections within the City of Newport Beach, the way we analyzed it in the Mitigated Negative Declaration and in the staff report was that we examined close intersections because we did identify an increase in peak hour trips. We analyzed it in a methodology similar to the one use for TPO analysis. We said in our report that if the standard we used for determining level of significance was breached, we would have found a significant impact and sought a mitigation under the Mitigated Negative Declaration. The TPO standards of mitigation are locally adopted significance standard. In this case, none of those thresholds were exceeded in the ICU analysis and therefore no mitigation was suggested. For the intersections analyzed outside of the City boundaries, we used the established OCTA significance threshold. Once again those intersections did not cross that threshold so no mitigation was required. Commissioner Tucker asked about the site drainage; parking lot drainage and water quality measures. There is nothing on the site plan that shows a detention area and I would be interested in seeing it. Staff answered that the surface drainage is to the Superior side of the property into a catch basin. The City will ask for some additional upgrades to this system. Included is a mitigation measure and a condition that will require a plan that include measures such as a detention basis to be shown on standard improvement plans prepared by a licensed civil engineer. Additionally, condition 16 requires that on -site retention or low flow diversion into the sanitary 36 INDEX • City of Newport Beach Planning Commission Minutes January 4, 2001 • sewer system shall be provided for all on -site drainage in order to minimize the amount of pollutants transmitted to the Newport Bay. The drainage goes to the bay via the channel that was recently built under Coast Highway at the Arches and comes out by the turning basin. Chairperson Selich observed why not adjust or limit the use so that the peak a.m. and p.m. traffic does not exceed what is under the Hughes project and according to the staff report, this project is generating 229 more a.m. /p.m. peak hour trips, 163 more p.m. peak hour trips even though it is generating 1844 fewer daily trips. This seems a real problem, as the traffic is peak hour trips. Ms. Temple answered that based on our approach it would be if it created an increase in the ICU's such that it would either cross the threshold of 0.9 or increase an existing ICU above 0.9. We would then impose a mitigation measure to correct the degradation or elect to limit the number of trips. ICU's deal with specific intersections. The TPO doesn't have analysis based just on the raw number of peak hour hips, so we were following that same method in looking at what those trips resulted in at intersections. Ms. Wood added that because there was the increase in peak hour trips we did the intersection analysis. Ms. Temple noted that we saw a level of increase in peak hour trips that we thought were significant enough that they should be analyzed. We used the methodology of the TPO in order to determine whether those changes constituted an environmental change significant as would be defined under the Traffic Phasing Ordinance. The way these peak hour trips translated into the ICU analysis we came to the conclusion there was no greater impact by this project than by the Hughes project. Commission then took a five minute recess. Public comment was opened. Carol Hoffman, representing the St. Clair Company introduced Mark Barker, Director of Commercial Real Estate and Chris Torrey of LPA Architects. She then proceeded to distribute copies of the Power Point presentation made at the December meeting. She then made a presentation noting the following: • Use Permit is only for the increased height. • Project does not exceed the allowable FAR even with the height increase; it is below the .75 that is permitted. • Increased the site open space and increased parking lot screening from surrounding streets. • The parking structure can not be moved or eliminated. In order to disperse the parking and make it convenient to buildings we have added parking. In that respect the parking structure may not be fully utilized. It does mean the parking closest to the buildings will and avoid 37 INDEX City of Newport Beach Planning Commission Minutes January 4, 2001 • impacting the community. (Referenced the diagrams) • There has been an ongoing need for remote parking locations for beach shuttle. To the extent that the City ever gets to the point of wanting a location for a beach shuttle on weekends or evenings, this becomes a very good site for that. The project proponents would be open to discussion of this shuttle service on weekends or at night during non - business hours. • The elevator shaft question that was raised has to do with the design of the elevator. The elevator is hydraulic and that equipment is therefor on the ground level and not above the parapet. • Most of the site drains to Newport Boulevard because there is a 22 -foot grade difference. The applicant is working with CalTrans to obtain an easement to drain down the slope to Newport Boulevard. The applicant will work with staff to work on the best solution to this problem before it leaves the site. They are willing to install a system (similar to the one at Crystal Cove) in the parking lot to clean the water before it leaves the site. That is why there is language in the supplemental staff report to make that happen. • Soil and ground water remediation action plan is underway and being reviewed by the Regional Board. The site was originally required to conduct a soil vapor extraction system testing but it became unnecessary due to the lack of any significant vapor recovery. • We agree to the proposed changes and conditions contained in the supplemental staff report. • We have attempted to address the concerns of the EQAC since December and have worked with staff that describes a way in which both we and staff would ensure that this use stays R & D and does not exceed the anticipated impacts. • This proposed project reduces the overall square footage of what is there now and re- presents that square footage in an environmentally and aesthetically design. • We are consistent with the zoning in the General Plan and consistent with the TPO. • Our request for the height increase has met the required findings. • The applicant is prepared to meet all the required conditions and mitigation measures. Concluding, Ms. Hoffman asked for a favorable consideration of this project tonight. It has been on file with the City since last March and it is important to the developer and owner to proceed. Robert Hawkins, Chairman Environmental Quality Affairs Committee (EQAC) stated that early on they had submitted comments that have been responded to by the applicant. He noted that: • We have had a Mitigated Negative Declaration that was circulated for public comment. It came back with 10 pages of comments. After the ' comment period was closed, we received responses to comments, a 15 38 INDEX City of Newport Beach Planning Commission Minutes January 4, 2001 • page Errata Sheet, Mitigation Measures and Traffic Studies, two different staff reports and a copy of the questions and answers to Chairperson Selich. All of these additional items have not been subjected to any public review or comment other than at this hearing tonight. There is concern just for the openness and public input to make sure this material comes to the public as soon as possible and there is ample opportunity in the record to comment on it. • We had some concerns about a general office use. This came about particularly in the draft Mitigated Declaration that talked about an office complex. In the Errata sheet all those references to office complex were stricken and what we have is an R & D use. So long as the project is clear, but our main concern is that this could slip into an office use. We believe that mitigation measure proposed in the supplemental staff report may provide sufficient assurance that there will not be this slippage into an office use. • We had concerns about the noise issues. Response to our comments was that the total traffic over and above the existing project will decrease. That analysis does not go for enough. The a.m. /p.m. peak hour traffic does not decrease, it increases. What are the noise impacts at those two critical junctures? We don't have the analysis to discuss the impact and if necessary mitigate that impact. At Commission inquiry, Mr. Hawkins stated that there was a substantial amount of material that was not subjected to public review at all. CEQA documents circulated for public comments but the corrections and Errata documents then become the document that is decided upon. My concern is a procedural one. We should be circulating the document with attachments with the Traffic Study for public comment. The responses to our noise concerns have not been adequately addressed because the response is we don't have to look at that because the overall traffic decreases. That is true but there are two crucial times in which the traffic does not decrease but actually increases substantially and nobody is analyzing the noise at those two times. Alan Beek, 2007 Highland noted his agreement about the concerns previously stated. Condition 31 of the Negative Declaration says the proposed use for the site shall remain research and development. It is not clear to me what you would do about a correction if in the future a violation were found. I request that you ask staff to clarify what would be done to remediate this. Public comment was closed. Ms. Clauson noted that if the City was to discover that they had leased the property to a non- R & D use then we would go to them and tell them it is not a valid lease. They would not be able to honor that lease and would have to deal with their own resulting legal problems in that respect. If needed, we ' would go to court and get an injunction to keep them from leasing. If the operator of the property did not get rid of that unauthorized business, then we 39 INDEX • City of Newport Beach Planning Commission Minutes January 4, 2001 would go to the court to do it. The courts generally uphold zoning restrictions and uses that are authorized. Just because you have a lease or a business license that says you can have that business there; if the zoning does not authorize it you go in and get court enforcement for the zoning. Ms. Temple added that a business license is not a license or permit to operate in violation of the Zoning Code. It is simply a business tax. Commissioner Tucker noted that the third story of the project is a design feature and not an intensification. The occupancy load is the issue; the height of the building is merely a design feature. They are asking for a use permit in an area where they are allowed to have up to 50 feet as long as certain findings are made in terms of design. Mr. Hawkins comments distilled down to a recirculation of the document. In the Errata the consultant made the statement that a subsequent mitigated declaration is only required when changes to the proposed project changes the circumstances or new information not previously known will result in a new or increased significant effect. I am not sure that the additional analysis necessarily means a recirculation is a needed approach. • Ms. Clauson stated that based upon the information that resulted from it there was no additional significant impacts or additional information that resulted. The information was clarification or additional information to clarify the information in the original Negative Declaration. From a CEQA point of view of whether it needs to be recirculated, I do not believe that it does. From a public notice and availability of documents before this hearing, the ability for the people to review all the information is up to the Commission to determine. Commissioner Tucker agreed that the Negative Declaration and the checklist were misstated that it was an office project, which actually from a CEQA standpoint is the better way to make a mistake. To say something that is going to have more of an impact that notifies the public of the greater impact than what there is going to be. If everyone thought it was going to be office then everybody has in his or her mind at least a level of impact of what it actually will be. Continuing he stated that he has questions on the design features. The plans we received were not terribly detailed. The Code requires of us in order to agree to a higher building over the base height that we have to be convinced that there are architectural and aesthetic reasons that would warrant that. I would like to know what the architecture is going to look like. We have a landscape plan that is fairly preliminary that gives a plant legend, but it does not describe it in detail. I am not sure what the size of the plant specimens and trees is going to be. What is the west elevation of the parking structure going to look like, what plant materials? There is nothing on the plan that says how it is going to be done. The plans are what we approve; it would be helpful if it had details on how this is going to be addressed. Continuing he asked: 40 INDEX • City of Newport Beach Planning Commission Minutes January 4, 2001 • Building 1 and Building 3- the floor plan it is not clear what the possible break down of the space is going to be. How many tenants will fit into these spaces? I would be interested to know how that is going to be envisioned; how many tenant spaces will ultimately be there? As far as the exterior of Building 1 it is difficult how it will look like; we don't have a colors and materials board; I am not sure what the glass is going to look like, what the mullions are going to look like; not sure of the type of stone for the stone veneer. We don't have a profile of the building so I am not sure what this canopy structure is going to look like nor what it is going to be made of. I am not sure if the building will look monolithic across the front or if there will be some recesses. I do not have the benefit of any shadowed elevations. I was curious as to where the mechanical units are going to be and how the screening will be dealt with on that. Building 2 - the some question about possible break down. The same type of detail on the exterior of the building so that we know more of what we will end up with. It may be that the elevations need to be part of what is included so that we can actually see what we are going to get. I am not sure what the polymer modified plaster system is going to end up looking like. So I have the same type of detail questions. I realize this is an existing structure and I don't know if you are planning on putting things on the outside of the building that will give it relief or if it will have a monolithic look. I want to make sure that what we are going to get is the quality we think we are going to get. We have an opportunity to look at the design such as we did with the Dunes and the Balboa Inn. • He then suggested that a color and materials board be given to the Planning Commission. Chairperson Selich noted that the applicant wants the Commission to act upon this tonight. However, I would like to have another two weeks to go over some of this material. I share the concerns about the designs of the buildings and I would like to see his questions answered and I would like to see a materials and color board, and more detail on the landscape. My suggestion is that we continue this two weeks to allow the applicant time to respond to those things and get that information back to us. The Planning Commissioners all agreed. Ms. Hoffman noted that it was their understanding that detailed landscaping plans was required after the Planning Commission action. With regard to the architecture, the architect can describe more fully the articulation that has been built into this plan for shadowing and detail that will help the sides of these buildings. We have worked with the preliminary landscaping plan with the understanding that we would add vines along the edge of the parking structure to augment so that the understructure of the landscaping would be added to the existing trees. The pine trees are quite tall and extensive. We felt that what was lacking was the vines that would be on the parking structure and the understory type materials that would enhance that small berm that is 41 INDEX • City of Newport Beach Planning Commission Minutes January 4, 2001 there. It was our intent to paint the structure, screened landscaping along the frontage of Superior and understory shrubbery that will enhance that as well. Regarding the number of tenants, we are expecting two tenants maximum per floor. This is the typical type of leasing procedures for this kind of use. LPA was specifically chosen for this type of project design to provide quality architecture for this site. We would be glad to bring back to you for your review a story board and /or more articulated architecture prior to the time that we obtain building permits if you were to give your approval tonight based on the number of conditions that have been addressed. That is an option for you that will keep us from delayed into the next step of design development. Because design review is not part of the official process that we were asked to submit to you, we were not prepared to give you that level of detail at this level of approval. Chairperson Selich noted that his concern is much deeper then just presented. You may have been in the process for however long, but we have had only seven days to go over this material. It is a complicated project to understand what is going on here. I submitted questions to staff and I still don't understand all the answers that came back to me. I need at least two more weeks to go through this material and get a better understanding of exactly what we are doing here. My concern is a lot more than the landscaping and the elevations. Commissioner Tucker stated he has the same reaction. I just heard of this project in December when we got a presentation. I have spent a lot of time going through this. I feel strongly that we need to have something other than a verbal statement about what this thing is going to look like. It needs to be in the plan; we need to see the articulation and the shadowing. Then when we approve it we know what we have approved. It is a big project and I think it will be a good looking project and a great improvement versus what is there. We have a series of issues. I would like to see some revisions to the plans. Ms. Hoffman asked if you are looking for a greater detail on the architecture? Commissioner Tucker answered he would like to see more detailed elevations for review, materials, building profile and what the glass will look like. Even though design review is not normally part of the process, in this particular case it is specifically one of the things we are supposed to make a finding on in order to grant a use permit that has height over the basic height limit. Chairperson Selich recommended taking a look at the submittals of the Balboa Inn and how they changed to be more readable and understandable. Commissioner Kranzley asked if we approved this with a condition that they have to bring more detailed plans back to the Commission prior to the beginning process wouldn't that satisfy some of the concerns of the Commission? 42 INDEX • City of Newport Beach Planning Commission Minutes January 4, 2001 Staff answered that this has been done in the past and we could craft a similar condition that would allow the Planning Commission to further review the specifics of the project as they are developed prior to issuing the building permit. You would need to articulate those particular areas you are interested in reviewing and what you are trying to achieve. Ms. Clauson added that she is comfortable with this procedure because of condition 2 where the Commission has to find that the increased building height would result in more desirable architectural treatment of the building and a stronger and more appealing visual character than is required by the basic height limit. Based on that finding, the concern of elevations and appearance is a valid factor. If the Commission is willing to add a condition to review that to support that finding at a later time, they could. At Commission inquiry, Ms. Hoffman stated that it is a financial consideration and the rate of daily interest being paid on the project. The applicant had taken the delay through January would allow for the comfort of the Commission. Now, we are find that you have issues beyond what we thought were the only things outstanding for purposes of being able to achieve that approval. It is frustrating to the applicant and I had hoped that we could reach agreement through dialogue at the meeting tonight. Commissioner Kiser noted his concern about the height of the building. I see things like 14 1/2-foot floor plates on all floors. I would like to see some detail for this type of facility why do we need that height of floor plates? Since you are here asking for additional height, I think it should be and needs to be justified. As I read through the findings I could only say yes to one of the four required that we must make. The analysis for the first required finding is almost entirely when viewed from Dana Road, which has extremely little traffic when compared to Superior and Newport Boulevards and virtually nothing from Superior and Newport Boulevards. I have similar concerns with the analyses for the second and third required finding. following discussion, he concluded that both from Newport Boulevard and Superior Avenue there is a massing issue. If this is built, I believe that this project will be a surprise to people in the area. Commissioner McDaniel support a continuance but we should be specific as possible with what the applicant needs to come back with so that we can make a decision. Commissioner Tucker offered his help to the applicant to work with them and discuss the alternatives. Commissioner Agalanian noted his concern with redevelopment and intensification of uses. This is a better project than what is there currently at the site. He observed: • massing of Building 1 on the Superior side • R & D issue - some type of daytime population cap condition 43 INDEX . City of Newport Beach Planning Commission Minutes January 4, 2001 Motion was made by Commissioner Tucker to continue this item to January 18, 2001. Ayes: McDaniel, Kiser, Agajanian, Selich, Kranzley, Tucker Noes: None Absent: Gifford i 4 A SUBJECT: 21 Bay Island Fletcher Residence Review of Condition No. 3 of Modification Permit No. 4919 regarding the removal of a tree located on the subject property, in conjunction with the construction of a new single family dwelling. Commissioner Kranzley asked for clarification of how mature a 36" box birch tree is; what does it mean? I am disappointed with what happened on this site and I am not happy with a 36" box and would like something more substantial. • Chairperson Selich answered that one of things used for the Irvine Company their criteria includes tree caliper, heights and or canopy spread on tree. Commissioner Kranzley noted that the Commission spent time on this project. Public comment was opened. Doug Fletcher, 21 Bay Island noted that he is building this house at this site. The terrain has the house site next to a bridge with all the utilities easement. We can't put a 36" box because of the pipelines in the easement. The trees that came down were entwined in these pipes. We are going to put in trees as big as we can and do our best. We have 115 trees on this island, 35 of them are up to 50- 100 feet high. These two trees that went out were not the biggest trees. The island inhabitants have always taken pride in the trees; we plant them and cut them down. Don't go out of your way for two trees, because we have a lot of them. Motion was made by Commissioner Tucker that the project be found in substantial compliance with the intent of the conditions of approval, so long as the replacement trees required by the Association are installed. Ayes: McDaniel, Kiser, Agajanian Selich, Kranzley, Tucker Noes: None Absent: Gifford ! ... 44 INDEX Item 6 Approved • City of Newport Beach Planning Commission Minutes January 4, 2001 ADDITIONAL BUSINESS: a.) City Council Follow -up - Assistant City Manager Sharon Wood reported that on December 12th, the Council continued the hearings of the revocation of the Buzz Use Permit to January 23rd; the mixed use Fluter project on Newport Boulevard to January 91h . An oral report of the Planning Commission actions will be reported by the Planning Director. At Commission inquiry, Ms. Temple noted that the projects called up by the City Council were Fluter, Jiffy Lube Sign, Naval Variance, Balboa Inn was appealed by a resident and Starbucks Coffee was appealed by the applicant. b.) Oral report from Planning Commission's representative to the Economic Development Committee - none. C.) Oral report on status of Newport Center General and Specific Plan program - Issues of a visioning approach were discussed as well as the relationship between the General Plan and the Local Coastal Program and certification is involved. d.) Matters that a Planning Commissioner would like staff to report on at a subsequent meeting - none e.) Matters that a Planning Commissioner may wish to place on a future agenda for action and staff report - none. f.) Status report on Planning Commission request - Fletcher residence is the only update. A request for proposal has been made to arborists regarding fichus trees on Main Street to see what can be done to save them and prevent damage the roots cause to both public and private improvements. The firm of Integrated Urban Forestry has been selected and we met with them yesterday to get them started. g.) Project status - none h.) Requests for excused absences - none. ADJOURNMENT: 11:05 p.m. STEVEN KISER, SECRETARY CITY OF NEWPORT BEACH PLANNING COMMISSION 0 45 INDEX Adjournment