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HomeMy WebLinkAbout01/20/1994a L CITY OF NEWPORT BEACH REGULAR PLANNING COMMISSION MEETING PLACE: City Council Chambers TIME: 7:30 P.M. DATE: J In 1994 MINUTES anuary , ROLL CA�1 I I I INDEX Present Chairman Merrill was excused. (Commissioner Pomeroy arrived Absent at 7:35 p.m.) x x x EX- OFFICIO OFFICERS PRESENT: James Hewicker, Planning Director Robin Flory, Assistant City Attorney x x x William R. Laycock, Current Planning Manager ohn Douglas, Principal Planner Don Webb, City Engineer Dee Edwards, Secretary Minutes of Janua1y 6 1994 Minutes of Motion Ayes Motion was made and voted on to approve the January 6, 1994, Planning Commission Minutes. MOTION CARRIED. 1/6/94 Absent sss Public Comments: Public Comments No one appeared before the Planning Commission to speak on on- agenda items. ss: ostin of the Amanda: Posting of the James Hewicker, Planning Director, stated that the Planning Agenda omn'ission Agenda was posted on Friday, January 14, 1994, in front of City Hall. x x x L COMMISSIONERS - `Ly�p�l�•P `PO�'Os�'p CITY OF NEWPORT BEACH MINUTES January 20, 1994 ROLL CALL INDEX esub 'vi i n No. 1002 (Public Heariing) Item No. equest to resubdivide five lots, a portion of a sixth lot and 81002 ortions of a vacated alley and a vacated street into three parcels f land for residential purposes, on property located in the R -1 Approved District. CATION: Lots 55, 56, 57, 69, 70 and a portion of Lot 68, Block A, Tract No. 673, a portion of a vacated street and a portion of a vacated alley, located at 344 -352 Hazel Drive, on the southeasterly side of Hazel Drive, southeasterly of East Coast Highway, in Corona del Mar. ONE: R -1 PLICANT: Snell & Wilmer, Irvine WNER: Katherine S. Finch Family Trust, Long Beach GINEER: Duca -Mc Coy, Inc., Corona del Mar lames Hewicker, Planning Director, referred to a letter received om Stanley Behrens, dated January 19, 1994, addressed to the mmission concerning the subject application. The. letter 'scusses the contours that are shown on the parcel map which ere taken from a reference point on a curve on East Coast -lighway as opposed to the contours above. Mean Sea Level (MSL) hich are shown on a map Mr. Behrens submitted to staff. Mr. ehrens is a prospective purchaser of Parcel No. 3. William Laycock, Current Planning Manager, explained that the etter addresses the bench mark that was utilized by Duca McCoy hen the tentative parcel map was drawn, and Duca McCoy used he bench mark of 100 feet which is the point that was used on ast Coast Highway. Mr. Laycock recommended that Condition . o. 8 be modified to state ..that no construction or -2- COMMISSIONERS 0t��g1p CITY OF NEWPORT BEACH ul ►f�iLiK5�r-9 JS11LLLUY LV, 177Y ROLL CALL INDEX andform alteration below the 85 foot contour line (71.16 SL) shall be permitted—The 71.16 MSL is the same 85 foot ontour that is shown on the tentative parcel map. Mr. Hewicker lained that it would be preferable to use the contour above SL as opposed to using a reference point on East Coast Highway here there may be individuals who do not know where the eference point is located. Mr. Laycock explained that tentative arcel maps should be drawn from the MSL line and in the subject ase the engineer used the 100 foot mark. The public hearing was opened in connection with this item, and r. Charles Hurst, attorney for the applicant, appeared before the Tanning Commission. He concurred with the findings and onditions in Exhibit "A", as modified. response to a question posed by Commissioner Edwards, Mr. urst indicated that he had not read Behrens' letter, however, he as familiar with his concerns. Mr. Hurst did not object to staffs uggestion if it would clarify the MSL benchmark and it would escribe the same contour. Stanley Behrens, 567 San Nicolas Drive, Suite 304, appeared efore the Planning Commission, and he distributed documents ertaining to the application to the Commission. He suggested that e Duca McCoy tentative parcel map be modified with a 0 to 110 oot correct contour line using an official Orange County bench nark at 86.895 feet, the elevation above MSL, as stated by the nvironmental Managing Committee, and to redraw the remaining all contour line at the 90 foot line on Parcel 3. The Tentative arcel Map should be changed from below the 85 foot contour e to the 69 foot contour line. The structure on the adjoining roperty located at 336 Hazel Drive was built 69 feet above sea evel, and that should be the maximum contour line that should be onstructed on the subject property. The Duca McCoy tentative arcel map should clarify the boundaries of the property for the alifornia Department of Fish and Game. • -3- 114 Q�cf �I��\ I %\O \N o CITY OF NEWPORT BEACH 17U9NF January cu, iyyw ROLL CALL HIMEX In response to a question posed by Acting Chairman Glover, Mr. Behrens replied that there is not sufficient documentation in the staff report concerning the boundaries of the property, the contour lines, or the retaining wall. Don Webb, City Engineer, explained that many of the concerns that Mr. Behrens has will be addressed on the Final Parcel Map. Final Parcel Maps normally do not indicate contours, and Tentative Parcel Maps are not required to show contours and improvements that are on the site. Staff will require that a complete survey be performed, and the concerns regarding the bench mark will be taken into consideration during design and plan check. In response to a question posed by Commissioner Ridgeway, Mr. Behrens agreed with the findings and conditions in Exhibit "A ", as modified. Commissioner Ridgeway pointed out that Mr. Behrens aforementioned concerns would be addressed during plan check. In reference to Condition No. 5, Exhibit "A", Mr. Behrens asked who would be responsible for the cost of reconstructing the cracked or displaced sections of sidewalk. Mr. Webb explained that the developer would pay for the reconstruction. There being no others desiring to appear and be heard, the public Baring was closed at this time, Motion Motion was made and voted on to approve Resubdivision No. Ayes * * 1002 subject to the findings and conditions in Exhibit "A", as Absent modified. MOTION CARRIED. FINDINGS: 1. That the design of the subdivision will not conflict with any easements acquired by the public at large for access through or use of the property within the proposed subdivision. -4- COMMISSIONERS 4 i ►D-P CITY OF NEWPORT BEACH 7 20 1994 anuary , ROLL CALL L INDEX 2. That the map meets the requirements of Title 19 of the Newport Beach Municipal Code, all ordinances of the City, all applicable general or specific plans and the Planning Commission is satisfied with the plan of subdivision. 3. That the proposed resubdivision presents no problems from a planning standpoint. That public improvements may be required of a developer per Section 19.08.020 of the Municipal Code and Section 66415 of the Subdivision Map Act. 1. That a parcel map be recorded prior to issuance of Building Permits unless otherwise approved by the Public Works and Planning Departments. The parcel map shall be prepared on the California coordinate system (NAD83) and that prior to recordation of the parcel map, the surveyor /engineer preparing the map shall submit to the County Surveyor a digital- graphic file of said map in a manner described in Section 7 -9 -330 and 7 -9-337 of the Orange County Subdivision Code and Orange County Subdivision Manual, Subarticle 18. That prior to recordation of the parcel map, the surveyor /engineer preparing the map shall tie the boundary of the map into the Horizontal Control System established by the County Surveyor in a manner described in Section s 7 -9 -330 and 7 -9 -337 of the Orange County Subdivision Code and Orange County Subdivision Manual, Subarticle 18. Monuments (one inch iron pipe with tag) shall be set On Each Lot Comer unless otherwise approved by the Subdivision Engineer. Monuments shall be protected in place if installed prior to completion of construction project. • -5- CoNMUSSIONERS 17� ROLL CALL 9 CITY OF NEWPORT BEACH MINUTES January 20, 1994 That all improvements be constructed as required by Ordinance and the Public Works Department. 4. That each dwelling unit be served with an individual water service and sewer lateral connection to the public water and sewer systems unless otherwise approved by the Public Works Department and the Building Department. 5. That any cracked or displaced sections of sidewalk be reconstructed at such time as drive approaches are constructed along the Hazel Drive frontage. All work shall be completed under an encroachment permit issued by the Public Works Department. That County Sanitation District fees be paid prior to issuance of any building permits. Disruption caused by construction work along roadways and by movement of construction vehicles shall be minimized by Proper use of traffic control equipment and flagmen. Traffic control and transportation of equipment and materials shall be conducted in accordance with state and local requirements. That prior to the issuance of building permits on the three parcels, the owner or owners, shall record a covenant approved as to form by the City Attorney, which shall guarantee that no construction or landform alteration below the 85 foot contour line (71.16 MSL) shall be permitted on the subject property. That Coastal Commission approval shall be obtained prior to the recordation of the parcel map. 10. That a park dedication fee for one dwelling unit shall be paid in accordance with Chapter 1950 of the Municipal Code. 12 MEX i MINUTES CITY OF NEWPORT BEACH J6l ULL y LV, X77" ROLL CALL INDEX 11. That this resubdivision shall expire if the map has not been recorded within 3 years of the date of approval, unless an extension is granted by the Planning Commission. Use Permit No. 1727 (Amended) (Continued Public Hearing) Item No. Request to amend a previously approved use permit which UP1727 (A permitted the establishment of a restaurant with on -sale alcoholic beverages and established a parking requirement based on one Denied parking space for each 40 square feet of "net public area ". The proposed amendment includes a request to change the operational characteristics of the restaurant so as to permit adult live entertainment as well as patron dancing to prerecorded music and live entertainment; and a request to provide valet parking spaces. LOCATION: Parcel 2 of Parcel Map No. 45 -23 (Resubdivision No. 347) located at 4248 Martingale Way, westerly of MacArthur Boulevard, between Martingale Way and Dolphin - Striker Way, in the Newport Place Planned Community. ZONE: P -C APPLICANT: Tily B. Inc., dba Mirage of Newport, Santa Ana OWNER: Nuccio Reality and Investment Co., Corona del Mar ames Hewicker, Planning Director, referred to the correspondence from Mr. Ronald Talmo, the applicant's attorney, dated January 19, 1994, and the addendum to the staff report that were transmitted to the Commission. The addendum addresses parking requirements for other restaurant facilities within the City. • -7- oc�d��.s ` -00N "14 • MINUTES CITY OF NEWPORT BEACH awiunay w, i»-r ROLL CALL INDEX In response to a question posed by Commissioner Edwards regarding the request for valet parking, William Laycock, Current Planning Manager, stated that the plot plan indicates that a certain number of parking spaces would be utilized for valet parking, and the staff report discussed the number of valet parking spaces. The plot plan also states that if additional valet parking spaces are needed they would utilize additional parking spaces in the parking lot for valet parking spaces. The public hearing was opened in connection with this item, and Mr. Ronald Talmo, 2415 North Hesperian, Santa Ana, attorney for the applicant, appeared before the Planning Commission. Mr. Talmo stated that the intent is to use valet parking but not in segregated parking spaces. Parking spaces are available in front of the building that the establishment is entitled to use, and valet parking would be intermixed with customer parking if the • customer would decide to use the valet service. Acting Chairman Glover asked Mr. Talmo, as a representative for our client, accept the findings and conditions of Exhibit "A"? Mr. Talmo replied they do not accept the findings and conditions and the letter that was submitted indicates their position as to the conditions. Commissioner Gifford asked if he bad read the supplemental staff report, and Mr. Talmo responded to the affirmative. In response to a question posed by Commissioner Edwards, Mr. Talmo asked if the Commission received a copy of his January 19th letter addressed to the Commission, and Acting Chairman Glover concurred. Mr. Talmo referred to page 3 of the letter, regarding objections to specific conditions in the staff report. Commissioner Edwards asked if it was Mr. Tahnds position to totally strike Condition No. 3 [Obtaining a Newport Beach Entertainment Permit]? Mr. Talmo responded that it is their position that the Planning Commission does not have the authority, under the Newport Beach Municipal Code, to grant or . deny a conditional use permit as it relates to this location because -8- � p�0 ", Nk CITY OF NEWPORT BEACH MINUTES .ranuary zu, iy!m ROLL CALL INDEX of the adult live entertainment that is proposed. The City has a very specific Code section that has been adopted to handle businesses like theirs and that is the Adult Entertainment Business Ordinance. The Ordinance specifically does not provide for the requirement of a use permit. In fact, that is probably why it is valid, unlike other cities in California whose Ordinances are invalid. Commissioner Edwards stated that Mr. Talmo's position is that No. 4 [Dance Floor Size] and No. 5 [Parking Spaces] would also be totally stricken. Mr. Talmo stated that overall, their legal position is that they should not be required to secure the approval of a use permit by the Planning Commission. As to each of the individual conditions in the staff report, no, they should not be required to get something referred to as an Entertainment Permit which, for sure, has been superseded by the specific Adult Entertainment Ordinance. As far as Condition No. 4, they are going to have a dance floor with a preferred area of 377 square feet. Condition No. 5 was addressed in the main body of the letter. Commissioner Edwards addressed Conditions No. 15 [Limitation of Use for Theater Stage No. II], No. 17 [6 Foot Rule of Section 20.74.0201, No. 18 [Uniform Security Guard Outside], No. 22 [Areas Open to View], No. 25 [2.0 Foot Candle Lighting], and No. 31 [Health and Safety Catch -all Condition], and he asked Mr. Talmo if it was his position that those also should be stricken as terms and conditions under Exhibit "A". Mr. Tahno replied to the affirmative - Condition No. 15 does not make sense. It is the same formula no matter what happens. In reference to one parking space for each 35 square feet of "net public area ", he questioned what the purpose of 15 seats was: if they have 15 seats, they have to have 3 parking spaces. If they remove 15 seats, the square footage divided by 35 still requires 5 parking spaces. Commissioner Edwards commented that the letter makes reference to a couple of other actions around the County, and did he understand that this owner operates elsewhere in the County? Mr. Talmo replied to the affirmative. An and Olivia Nguyen acquired Paddy Murphy's in Santa Ana about 2 -1/2 years ago. • Commissioner Edwards asked if they have more than one theater -9- • MINUTES CITY OF NEWPORT BEACH T--..--. '$A 1nne ROLL CALL INDEX in Paddy Murphy's and Mr. Talmo replied "yes ". Commissioner Edwards stated that there are four or five different little theaters in the subject proposal and he requested Mr. Talmo to briefly describe what would transpire in each one of the theaters. Mr. Talmo referred to his December 13, 1993, letter attached to the original staff report, and he asked if the Commission required additional information as to what was submitted in the letter. Mr. Talmo replied that is exactly the reason why a use permit is not appropriate. Apparently, the only reason a use permit is required is because food or beverages would be served in the facility. If they did not serve food or beverage, then the establishment would not be a restaurant under the City's Code. Commissioner Edwards asked if they intend to serve food and beverages in the five rooms. Mr. Talmo replied "yes ", that food or beverages would probably be served in all five rooms. He said that is exactly the reason why those types of questions, and that inquiry, is not an appropriate . inquiry. What is going to occur in these rooms is topless or nude dancing. If you have ever been to a topless or nude dance place that is the entertainment that is going to be offered. Mr. Talmo stated that Theater Stage No.11 is for videos, so there will be no live entertainment in Theater Stage No. II. Commissioner Edwards asked if the existing operation had been cited for any violations of City and /or State Ordinances. Mr. Talmo explained that in 1983 the City of Santa Ana attempted to criminally prosecute in violation of their Ordinance, which prohibits the operation. There is a permanent injunction in affect against the City issued by the Orange County Superior Court. Other than that action "no ", there are no City Ordinances involved in Santa Ana and they have not been cited for any. Mr. Talmo replied that ABC, (Alcoholic Beverage Control Board), has currently issued an accusation against Paddy Murphy's. Paddy Murphy's is rectangle. They took a corner of the room out of the rectangle and eliminated the liquor from that corner, and ABC alleges that is in violation of Rule 143 of the ABC and they are seeking a revocation of their license. Commissioner Edwards asked the number of violations alleged, and Mr. Talmo replied that it is continuous, i.e. ABC requires a stage 18 inches above the • -10- • MINUTES CITY OF NEWPORT BEACH T--.— In ioae ROLL CALL INDEX level of the floor and the room does not comply with the ABC requirement; ABC only allows topless dancing and the room is nude; there is a dancer who is 20 years old in that room and ABC prohibits under 21 years old in ABC license facilities. He explained the current legal status between ABC and Paddy Murphy's. Commissioner Edwards asked if they intend to sell any alcohol on the premises at this location. Mr. Talmo replied not without an ABC license. Commissioner Edwards asked if he understood by Mr. Talmo's comment that all of the dancers are female dancers. Mr. Talmo replied affirmatively. Commissioner Edwards asked if no male dancers would be allowed. Mr. Talmo replied that male dancing may be permitted if the owner thinks it would be profitable. Commissioner Edwards asked if the male dancers would be totally nude. Mr. Talmo replied "yes ", if that is what the public desires. Acting Chairman Glover asked if Equal Opportunity Employment is one of the Commission's purviews? Ms. Flory replied "no ", it is not. Acting Chairman Glover stated that one of her concerns is to see that it would only employ females.. She referred to Theater Stage No. V, and she asked who would provide the policing? Mr. Talmo replied that the establishment would monitor the theater, and there will always be security guards on the premises. If there is a problem, the security guards would throw the person out or attend to the problem. Discussion ensued between Mr. Talmo and Acting Chairman Glover regarding the alarm system that would alert security if there was a problem occurring in the theater, and if there was contact made, the person would be thrown out of the building. Acting Chairman Glover expressed a concern that the owners may find it financially rewarding to have male and /or female dancers in Theater Stage No. V and they may not provide security if it were financially rewarding. Acting Chairman Glover asked if they would monitor from the viewpoint of what would make them the most money or monitor according to the rules stated here? Mr. Talmo stated that they make the most money by staying in operation under the regulations that are applied to • _11_ COMMISSIONER& L MINUTES CITY OF NEWPORT BEACH r______ �A AAAA JG.LLLLdIr LV, 17JT ROLL CALL INDEX em. If they have arrests for illegal conduct they could end up being closed as a nuisance in the City. Mr. Talmo said that what e thought Acting Chairman Glover was saying is if sexual conduct were to occur, and if they thought it profitable to allow to occur, en why would they monitor it at all. Acting Chairman Glover concurred, and that was based on Mr. Talmo's reason for saying if a male dancer made it more profitable they would have a male dancer. Mr. Talmo replied they do not intend to have male ancers; however, may have a "Chippendale Club" type of male how if it would be profitable. He commented that they do not ant to be excluded from doing a male dance show. ommissioner Gifford referred to Mr. Talno's letter dated December 13, 1993, stating that The Mirage will however, omply with all conditions imposed by the Planning ommission but reserves the right to appropriately hallenge any invalid conditions that might be imposed ind enforced against it, and she asked if that was still his osition. Mr. Talmo replied to the affirmative. She said that she anted to be certain that is what he said in light of his more pecific objections to certain conditions in his letter of January 19, 994. Mr. Talmo explained that the law requires at certain public earings that certain objections be made, or otherwise, they are ost, although it was his opinion that these would never be lost ce they are constitutional objections. In response to a question osed by Commissioner Gifford regarding Condition No. 15, Exhibit "A ", [Limitation of Use for Theater Stage II], Mr. Talmo xplained they do not want more than 15 seats in the theater, and ere is no objection to a limitation in that room of 15 seats. ommissioner Gifford commented that she visited the site this ate and noticed that the booths in Theater Stage No. V that are rovided for individual encounters for viewing of dancers have resently solid doors on them. Mr. Talmo concurred. She said at depending upon whether or not the condition provided here s adopted specifically, Condition No. 22 [Areas Open to View] bat would be changed if appropriate for whatever period it emained applicable. Mr. Talmo said if they were unable to get . t restrained. Commissioner Gifford referred to the proposed -12- COPAMSSIONERS a MINUTES CITY OF NEWPORT BEACH 100A ROLL CALL MDEX lexiglass to be installed in Theater Stage No. V and she determined that a full height would prevent contact and would provide distance between the patron and the dancer. Mr. Talmo replied that they considered the possibility of the full plexiglass; owever, the show changes. Commissioner Gifford asked if they uld work an accommodation that it would require full plexiglass etween the dancer and a customer. Mr. Talmo responded that she meant by accommodation would they be willing to agree to hat? Commissioner Gifford said "yes" and Mr. Talmo replied 'no ". ommissioner DiSano addressed the parking lot, and he pointed ut that he had driven past Paddy Murphy's in Santa Ana twice is last week to look at the parking congestion outside the facility nd that bothered him Mr. Talmo said that he had been their awyer for 13 years. For some reason under the City Code in 971, the existing number of parking spaces was appropriate for addy Murphy's; however, if they do anything to the outside of at structure now they would fall under the current City Code and be facility only has one -half of the required number of offstreet arking spaces. Commissioner DiSano asked if Mr. Talmo had an fficial response to the City's response to his letter of January 19th egarding the parking. Mr. Talmo said that the addendum to the taff report indicates that if you have a restaurant in Newport each you have the possibility of various square footage equirements depending on what gets imposed. What it shows is hat somebody with discretion imposes some set number of arking spaces differently. This Commission should not be posing discretion on the number of parking spaces when they meet the Code's minimum standard already - in fact, they are 12 arking spaces over the Code now. Staff is recommending one azking space for each 35 square feet of "net public area ", and his oint is what is so magical about this parking space number? The taffs position on this is, is if you are a restaurant versus a bar, (on are going to have more people come to the bar than to the estaurant at any given moment in time, and he assumed that was he premise behind staffs recommended parking requirement. If he real problem is the number of people that come into a facility, . -13- `%yyfo 2tQ�,'pp�lo CITY OF NEWPORT BEACH MINUTES r.._...._. 'n Inne rauuuay vv, a�i� ROLL CALL INDEX then his suggestion is to restrict the number of people. Mr. Tahno asked why doesn't the City just limit the occupancy? Commissioner DiSano said that he was not trying to be disagreeable, but his concern would be with the popularity with that type of entertainment and the City would be in a position very similar to what he saw at Paddy Murphy's. The City has a planned community around the subject premises and there is no parking on the street. Commissioner Pomeroy referred to Commissioner DiSano's comments, and he commented that it is possible there would be parking available in the surrounding commercial area parking lots. Commissioner Ridgeway referred to the City's parking requirements, and staffs attempt to define the type of business the subject establishment is. As a shopping center developer, he commented that there are established parking standards for . different types of commercial uses. In reference to Mr. Talmo's letter dated January 19, 1994, he asked Mr. Talmo how he feels the City's development standards under Chapter 20.74 is preempted. Mr. Talmo indicated that he is not alleging that Chapter 20.74 is preempted by State law - that is the Adult Entertainment Ordinance itself. There is a provision in it, however, that in his opinion is preempted - and that is the 6 foot separation rule that is preempted. Commissioner Ridgeway asked by Penal Code, and Mr. Talmo replied "yes ", Penal Code 318.5. Mr. Talmo explained sexual conduct is covered by the State Penal Code and all areas of sexual conduct are preempted. That was changed with the addition of Penal Code Section 318.5 and 318.6 which said that a City may in fact directly regulate topless dancers and topless entertainers and food and drink servers unless it is in a theater. Their position is that they are a theater, thus Section 318.5 preempts local regulations over conduct that occurs in a theater. And indeed some of the comments this evening are concerned over the sexual behavior perhaps that may occur, and that is exactly what is preempted. Commissioner Ridgeway stated that there are a number of theaters in there, like Paddy Murphy's, where Mr. Talmo said the ABC doesn't control. Mr. Talmo • -14- COMMISSIONERS MINUTES CITY OF NEWPORT BEACH 7annanr 7fl tOOd ROLL CALL MEX replied that the food and drink at this site is incidental to the entertainment being provided - it is not the other way around. Commissioner Ridgeway asked why they don't open up just as an entertainment and non -food and non -drink place. Mr. Talmo replied if they had a vending machine inside the establishment, they would fall under the Restaurant Ordinance. Commissioner Edwards stated that Mr. Talmo accurately addressed in his two letters and his testimony of what he believes to be the rights of the applicant, part of which he regressed in the Commission's ability to even address the whole issue in the manner in which they are addressing it under the use permit. Does Mr. Talmo feel that the applicant has any obligation whatsoever in terms of opening the business within the City. Mr. Talmo responded the obligations of the applicant in the City are to abide by the laws of the City. He said that he has no idea of hat other type of an obligation they would have other than to be one of the businesses in the City. Mr. Steven Craig, Huntington Beach, appeared before the Planning Commission on behalf of Mr. Stuart Ketchum and Mr. ohn Skoby, the owners of the two adjacent restaurants that share the common parking lot with the subject property. He read a letter from Mr. Ketchum dated January 20, 1994, addressed to the Tanning Commission. The letter stated why Mr. Ketchum and Mr. Skoby oppose the subject use permit: traffic and parking problems would be substantial; the proposed use would create an tense usage of the facility; the proposed use would create a ajor nuisance and would demand additional City services to tigate such a nuisance; the proposed use is a cabaret and the roposed activities make it clear that it would be a sexual mounter establishment; and the proposed use would create major conomic damage to Mr. Ketchum's establishment if it were nd-Jacent to an adult entertainment establishment. In response to question posed by Commissioner Edwards, Mr. Craig stated that e did not have sufficient information regarding a reciprocal arking agreement. • -15- COMMISSIONERS MINUTES CITY OF NEWPORT BEACH T--- ')n 100e .I{1114Q1 �' vV, 177T ROLL CALL INDEX Mr. Andrew Hilinski, co -owner of the Classic Q, an establishment adjacent to the subject property, appeared before the Planning Commission. Mr. Hilinski addressed his concerns regarding a potential parking problem. He indicated that his establishment would utilize two -thirds of the parking lot this evening and would fill the parking lot on Friday evening. Mr. Hilinski explained that parking is prohibited in the adjacent commercial parking lots. In response to a question posed by Commissioner Edwards, Mr. Hilinski explained that the parking area is shared equally by three establishments located on the subject site. Mr. Hewicker stated that the site was originally designated for three restaurants within the Newport Place Planned Community. The way that the area as established was that there would be three restaurant buildings on three lots, and there is a recorded reciprocal egress /ingress and parking agreement for all three of the property owners which gives the establishments the right to use the pool of parking. Commissioner Pomeroy addressed the success of the Classic Q and the demand for parking. There being no others desiring to appear and be heard, the public hearing was closed at this time. mmissioner Ridgeway asked if the square footage were reduced to comply with the parking, are there any grounds to deny the use permit. Ms. Flory explained that the Commission does not have e discretion under the use permit because of the first amendment issue in regard to the entertainment to deny on a general health, safety, and welfare basis. The Commission has the bility to impose conditions with regards to the usual form of egulation that the Commission would need for any type of usiness that would offer entertainment, parking as well. As onditioned, the use permit could be approved; however, a scretionary determination based on parking, or lack of parking, r based upon the type of entertainment being provided cannot eny the use permit. Commissioner Ridgeway addressed Chapter 0.74, Secondary Affects. Ms. Flory replied that the Commission ould have to have substantial evidence to that affect and she was • -16- • MINUTES CITY OF NEWPORT BEACH January 20, 1994 ROLL CALL ENDEX not certain that the Commission had the evidence that was presented during the public hearing. Commissioner Ridgeway asked if the Santa Ana Police Department or the Newport Beach Police Department were contacted to present evidence to the other activities that may occur around these types of establishments. Ms. Flory replied that part of the problem that Mr. Talmo pointed out about the use permit process is the discretion of making a general health, safety and welfare determination is what could be considered a prior restraint on speech. Looking into problems of another business or denying a use permit based upon that would put a prior restraint on their speech and the ability for them to go into operation at this time. The Police Departments were not contacted for that reason inasmuch as the information would not be relevant for the determination for the Commission. Commissioner Ridgeway stated that the proposed development is not a proper use for Newport Beach, but he was not certain that he could deny it. He addressed the discussion on parking; however, if the applicant is prepared to accept a smaller square footage of "net public area' based upon the prior restraint consideration the Commission has no grounds to deny the use permit. He asked if that was a correct statement. Ms. Flory replied that based upon the type of entertainment, the Commission has no grounds to deny the use permit. The Commission has valid reasons to provide conditions to the operation of the business as a live entertainment business regardless of what type it is, whether it is nude, or whatever. The specific zoning considerations for applicable parking, for regulating activities or to prohibit unlawful activities, that type of thing, that the Commission would for any other type of business would pose those types of problems. But to deny it, that would be a prior restraint. Commissioner Gifford addressed Exhibit "B ", Findings for Denial. Ms. Flory stated that Finding No. 5 (detrimental to the health, safety, peace, morals, comfort, and general welfare ... of the City, inasmuch as the proposed development could result in a significant increase in the intensity of use of the subject property), would be • an inappropriate finding. Findings No. 1 (..adult live -17- ;07, r� �NR +0�o MINUTES CITY OF NEWPORT BEACH 4 January 20, 199 ROLL CALL INDEX entertainment..will increase the intensification of use of the property and generate an increase in traffic..), 2 (..five entertainment and patron dancing-represents a significant intensification of use from the existing restaurant operation..), 3 (..valet parking is unacceptable..), and 4 (..shared parking facilities are inadequate for the total combined use of the property..) would have to be established by substantial evidence. Commissioner DiSano addressed Finding No. 4, Exhibit 'B ", and in light of the testimony of the Classic Q and in light of the testimony by the representative of Mr. Ketchum for the owners, is that not sufficient evidence? Ms. Flory stated that the regulation for the parking can be conditioned on a determination of limiting the occupancy or limiting the parking, but it would not be sufficient to deny the use permit because the Commission can condition the use and restrict the occupancy or the "net public area" to reduce the demand on parking for the project. The speech involved does not necessarily allow certain amounts of "net public area" or any kind of occupancy they want if it is going to impact the parking and the traffic circulation of the surrounding area. Commissioner DiSano expressed his concern that patrons would come to the establishment, that the parking lot and traffic would cause congestion, and the patrons would stand in a very long que line. Ms. Flory said that there are other businesses in the City where that happens, i.e. 1313G's, and there has been an established parking requirement for those uses and she did not believe that because it is popular and because people are willing to wait outside is a valid reason for denying the use permit. Commissioner DiSano and Ms. Flory. discussed the parking requirements. In response to comments by Commissioner Pomeroy regarding the application for a use permit and the Adult Entertainment Ordinance, Ms. Flory said that based upon the way the Ordinance is drafted and the regulations occur at this moment, she believed that the use permit is appropriate. Mr. Talmo has an opposing view and he has some basis for complaint as far as discretionary action and the prior restraint. She believed that the use permit • -18- 1 oi �� ' �o �y �o MINUTES CITY OF NEWPORT BEACH Janu 201994 mY ROLL CALL INDEX consideration is a valid consideration for regulations, the same regulations that would be for any kind of live entertainment which has been before the City. Commissioner Pomeroy said that because of the live entertainment, food service and beverage service, the establishment would fall under use permit regulations. Therefore, if there is a fact in the Adult Entertainment Ordinance, the Ordinance should be modified so as to make sure that it does not supersede the provisions of the Use Permit Ordinance. Commissioner Pomeroy addressed Condition No. 23, Exhibit "A ", That no person under the age of 18 years shall be permitted within the premises at any time and he asked if it means that a busboy cannot work in the kitchen if he is under 18 years old, and does it mean that a cleaning person cannot come in when the business is not open and work there? Ms. Flory replied that for adult oriented entertainment, the minimum age of 18 is the usual condition. Ms. Flory said the condition could be modified to state while it is open for business rather than at any time. Commissioner Edwards suggested ..during business hours.. Commissioner Pomeroy referred to Condition No. 22, Exhibit "A" That all indoor areas of the business where patrons are permitted except restrooms, shall be open to view at all times, and he commented that be did not recall the condition being imposed on any other restaurant. Ms. Flory said that it has not, and she thought that this condition as well as a uniformed security guard are valid conditions in an Ordinance for the reasons for prohibiting or regulating unlawful sexual activity. Commissioner Pomeroy asked if the Adult Entertainment Ordinance was supposed to do this. Ms. Flory replied that it does of have these regulations in there; however, the Ordinance is going to be amended to provide the appropriate regulations. In reference to Condition No. 24, Exhibit "A", ..the restrooms hall be free from all sexually oriented materials and merchandise.. and he asked if that means there cannot be a condom machine in there as there are in many restrooms in establishments in Newport Beach. Ms. Flory said that is what the condition would mean. Commissioner Pomeroy referred to Condition No. 17, Exhibit "A", That no person shall perform entertainment which depicts, describes or relates to -19- COMMSSIONERS 1311� ill I�T.9 CITY OF NEWPORT BEACH In iaod ROLL CALL INDEX "specified sexual activities" or exhibits "specified anatomical areas" as defined in Section 20.74.020 of the Newport Beach Municipal Code except upon a stage at least eighteen (18) inches above the level of the floor which is six (6) feet from the area occupied by patrons, and no patron shall be permitted within six (6) feet of the stage while the stage is occupied by an entertainer, in light of what Mr. Talmo brought up. Ms. Flory replied that Chapter 20.74, addresses the 6 foot separation restriction, it is a valid regulation, and it has not been preempted. The City is not regulating sexual activity inasmuch as sexual activity is regulated by the Penal Code. The City is regulating a situation to inhibit or keep a situation that would allow or encourage unlawful sexual activity under Penal Code. In other words, there is a potential for prostitution, unlawful sexual activity, and the 6 foot separation regulation has in other cases been determined to be a valid regulation that does not unreasonably inhibit speech to prevent that type of . problem-not to prevent speech, not to regulate speech, but only to inhibit violation of law. Commissioner Pomeroy said that when the Commission adopted the Adult Entertainment Ordinance he bad several questions regarding this so it would be explained to him, and he asked why the condition is here when it is in the Adult Entertainment Ordinance. Ms. Flory replied that the City has often included conditions similar to other restrictions of the Code in the use permits. Mr. Hewicker addressed Condition No. 15, pertaining to Theater No. II, he said that staff would not object to deleting ...Any increase in the number of seats or conversion to 'net public area" shall not be allowed unless an amendment to this use permit is approved by the Planning Commission... He said that it would not change the parking requirement. Motion Motion was made to approve Use Permit No. 1727 (Amended) subject to the findings and conditions in Exhibit "A ", with the following modifications: Condition No. 15, delete Any increase • in the number of seats or conversion to "net public area" shall not be allowed unless an amendment to this use permit is approved _2f' the Planning Commission; delete i0o,� Groor d �� • ut-0 CITY OF NEWPORT BEACH January 20 1994 ROLL CALL INDEX Condition No. 17; delete Condition No. 22; add at the end of Condition No. 23 ...,during business hours...; Condition No. 24, delete ..The restrooms shall be free from all sexually oriented materials and merchandise. Restrooms may not contain television monitors, or other motion picture or video projection, recording, or reproduction equipment. In response to a question posed by Acting Chairman Glover with respect to Mr. Talmo's acceptance of the aforementioned modifications, Ms. Flory replied that Mr. Talmo indicated his opposition and his intent to challenge any conditions that he does not agree with. Acting Chairman Glover asked Mr. Talmo if he would accept the motion. Mr. Talmo concurred with Conditions No. 15, 17, 22, 23, and 24 as amended. Mr. Talmo stated his objection still stands on the other conditions as indicated in his letter dated January 19, 1994. Commissioner Edwards commented . that Mr. Talmo previously stated that he reserves the right to challenge. Commissioner Gifford asked the maker of the motion the reason for his intent to delete Condition No. 17, which is included in the Adult Entertainment Ordinance. Commissioner Pomeroy stated that his feeling is not to try and say that the establishment is something that he would personally want to see in the City of Newport Beach; however, the Commission spent a lot of time working on the Adult Entertainment Ordinance, and the Commission tried to make sure that the Adult Entertainment Ordinance complied with the law. No matter how you feel about a moral issue, the Constitution is designed to protect individual rights, and we need to try and pay attention to those individual rights. The items are quite clearly set forth in the Adult Entertainment Ordinance. There is no point repeating something again since the applicant has already said that he agrees to comply with the Adult Entertainment Ordinance. Ms. Flory stated that the applicant intends to challenge the 6 foot separation limitation, and he does not intend to comply with it. Commissioner Gifford stated that as long as it is a condition that is equivalent of a . provision of the Ordinance, what is the objection to having it -21- �10�'`npoly�\ iLq�O�7Ql�rj� �'Yr�'O �a CITY OF NEWPORT BEACH MINUTES iauuary Gu, 177.+ ROLL CALL L INDEX included since it does not impose any greater burden. Ms. Flory stated that in many respects a lot of the conditions for use permits are repeated where they are required in other provisions, i.e. the Uniform Building Code, and many times the condition becomes a part of the use permit as something to comply with and it also acts as an additional notice to the applicant of the requirement. Commissioner Pomeroy stated that he would have no objection to leaving Condition No. 17 in the motion. Commissioner Gifford stated that she would not support the motion regardless of whether Condition No. 17 was in or out, she wanted to know his rationale, and she wanted it on the record that the intent was not to change the obligation to comply with that provision of the Ordinance by removing it as a condition. Commissioner Ridgeway stated that he does not see how he could vote against Use Permit No. 1727 (Amended) other than it is an . improper use for the City of Newport Beach. Legally, there have been other issues on prior occasions where he voted reluctantly, and he is in the same position. He said that he has no choice but to vote for approval of the application, based upon everything that is before the Planning Commission. Commissioner Edwards respectfully disagreed with the motion, and we want to have the right to address the issue. We have historically, for the history of the City, addressed the subject of intensification of use, etc. and use permits. He did not believe that the applicant sustained its burden with regard to the necessary findings that he needed to make. There is sufficient testimony to support a denial, and he will vote to deny. One of the things that has been entered into the record is a letter by Mr. Ketchum who is an adjoining landowner, who works in the neighborhood, and who talks in terms of the very issue which has some concern for the City, i.e. parking. Commissioner Gifford asked the maker of the motion if his motion included Condition No. 5, one parking space for each 40 square feet of "net public area ", or alternate Condition No. 5 discussed in the staff report of one parking space for each 35 _22_ COMMISSIONERS .00� td�df MINUTES CITY OF NEWPORT BEACH rnnn "v 7n 1ood ROLL CALL INDEX square feet of "net public area ". Commissioner Pomeroy stated that it is his intent to support staff s recommendation to comply with the proper parking requirements, or one parking space for each 35 square feet of "net public area ". Commissioner DiSano addressed the testimony from Classic Q and Mr. Ketchum, and he made a discretionary decision. He stated that there are two statements under Exhibit "B" that do not speak to the constitutionality of the entertainment. What he is concerned with is the parking. The intensification of use would be there, the parking would not be met, and he is not going to support the motion. Acting Chairman Glover stated that normally when a person builds a house in a neighborhood they go to their neighbors and they approach them with their project, and they work with them. There is usually an accommodation where everyone agrees at some point. Basically, to a certain extent, that is what it is here - there are three restaurants that have been there for awhile and the City needs all three of those restaurants to be open and to be generating business in the community. She did not want to preclude that so she would not support the motion. Motion Withdrawn Based on the circumstances, Commissioner Pomeroy withdrew his motion. Motion Commissioner DiSano made a motion to deny Use Permit No. 1727 (Amended) subject to Findings No. 2 and No. 4 in Exhibit "B" Commissioner Gifford addressed Finding No. 3, [Valet Parking] Exhibit "B ", and she asked to what extent it is applicable or inapplicable. Mr. Talmo appeared before the Planning Commission and he indicated there would be valet parking but no parking spaces would be reserved for such a use in the parking lot. He indicated that the plot plan that has been submitted designates specific parking spaces for valet parking and that is an error. However, they would like to have valet parking. In response to a • -23- 1�Pl�.p 'yo MINUTES CITY OF NEWPORT BEACH )n 100a ROLL CALL WDEX question posed by Commissioner Gifford, Mr. Hewicker queried Mr. Laycock if Finding No. 3 were based upon the fact that the applicant stated that they were going to use a portion of the parking lot exclusively themselves and therefore, exclude the right of the other two restaurant uses in the area to park, or was it the fact that the concept of valet parking by its very nature would indicate that people stopping, and picking up automobiles, and parking them somewhere else on the lot and not necessarily in front of their own restaurant would use more than their fair share of parking spaces. Mr. Laycock replied the valet parking concept itself. The three restaurants have free access to all of the parking spaces in the common lot, and the concept would be inapplicable in this particular case because of the joint use of the parking lot. Mr. Hewicker stated that all of the parking spaces in the lot should be independently accessible for all three uses as opposed to a valet parking attendant which would tend to park cars in . certain areas. Commissioner Pomeroy said that be could not support the motion. He thought the Commission by attempting to use a "very gray interpretation" of parking is trying to deny the use because they do not believe the use is appropriate for the City of Newport Beach even though it is permitted by the City's Ordinance. Mr. Talmo by virtue of the use permit meets all of the requirements of the City of Newport Beach as far as parking is concerned. For the Commission to say that the proposed facility may be too popular for the number of parking spaces, the Commission has not done that on other uses, and he did not think it was appropriate or fair, and be would not support the motion to deny. Commissioner Gifford asked the maker of the motion to amend the motion to include Finding No. 1 "Exhibit B ", as follows: That the proposed restaurant facility will increase the intensification of use of the property and generate a use in traffic. Commissioner DiSano agreed to amend the motion. MCommissioner Ridgeway addressed previous testimony. If the -24- COMMISSIONERS \1 4 0 u \D�_-9 CITY OF NEWPORT BEACH Y_­­ nn lAnA J""Wy �V, 177Y ROLL CALL INDEX parking lot is two - thirds filled this evening and there was another restaurant open for business on the site, there would be the same parking problem. It does not matter about the use. He agreed with Commissioner Pomeroy inasmuch as the applicant has met the requirements of the Codes, and Ordinances that the City has written and staff has indicated a support for the project based on that. Are these same people going to come before the Planning Commission when another restaurant comes in or when Mr. Ketchum has a new user? Is the individual who testified earlier going to say be cannot do that because he is using two- thirds of the parking spaces? He respectfully disagreed with Commissioner DiSano in what he heard this evening. Commissioner DiSano responded that there are three restaurants on the site. The City is trying to make sure that economic vitality goes across the board in the City of Newport Beach. He suggested uses that make sense would be a restaurant, a gaming business like the Classic Q, and /or a dessert- coffee house so that an individual could dine in one place, play in another place, and have coffee and dessert in another place. The uses would not attract more people, but the same people that park there would go to three different venues - that is planning. He is not de facto constitutionally trying to prevent the applicant from having a business - if the use were on a lot with more parking spaces, he would have the same argument as the other Commissioners but the use does not have adequate parking, and that is why he made his motion. Ayes * * * * Motion was voted on to deny Use Permit No. 1727 (Amended) Noes subject to Findings No. 1, No. 2, and No. 4 in Exhibit "B ". Absent * MOTION CARRIED. FINDINGS: 1. That the proposed restaurant facility will increase the intensification of use of the property and generate a use in traffic. • 2. The proposed introduction of live entertainment and patron -25- .00 plO1��d��S • CITY OF NEWPORT BEACH MINUTES m ruuuauy Z-v, 177Y ROLL CALL INDEX dancing to the restaurant facility represents a significant intensification of use from the existing restaurant operation which will generate an increase in the parking demand which cannot be accommodated by the available on -site parking. 3. That the shared parking facilities are inadequate for the total combined use of the property which includes two other restaurants. Discussion Item: Disc. Item Use Permit No. 3387 UP3387 Planning Commission review of a previously approved use permit that permitted the expansion of an existing non-profit private club P xp g p p Antic associated with substance recovery located in an existing Taken Taxen commercial building which is nonconforming relative to the off- street parking requirement. The building is located in the "Specialty Retail" area of the Cannery Village /McFadden Square Specific Plan Area. Said approval also included the waiver of a portion of the required off -street parking. LOCATION: Lots 32 and 33, Block 431, Lancaster's Addition, located at 414 32nd Street, on the southerly side of 32nd Street between Newport Boulevard. and Villa Way, in the Cannery Village /McFadden Square Specific Plan Area. ZONE: SP-6 APPLICANT: The Newport Beach Alano Club Inc., Newport Beach OWNER: Same as applicant • -26- m COMMSSIONERS �yfot�� o MINUTES CITY OF NEWPORT BEACH Jan 20 1994 uary , ROLL CALL MEX Commissioner Gifford asked if staff had received any complaints concerning the establishment. William Laycock, Current Planning Manager, replied that staff has not received any complaints. Commissioner Gifford commended the organization for doing what was necessary to improve the private club. No action was taken by the Planning Commission. ADDITIONAL B Add l i Business Motion Motion was made and voted on to direct staff to initiate an Ayes * * * * * * amendment to Districting Map No. 18 so as to delete the 10 foot Dist. Absent front yard setbacks on property located at 344 -352 Hazel Drive. Map No.I MOTION CARRIED. : s Commissioner Edwards suggested that the Planning Commission Agenda agenda items be "streamlined ", or to consider action similar to a Consent Calendar. x s x lanning Director Hewicker discussed the Economic Development Econ Dev Committee and its recommendations with the Planning Commission. x x x A,DJOURNMIENT: 9:35 p.m. Adjourn s s s ANNE K GIFFORD, SECRETARY CITY OF NEWPORT BEACH PLANNING COMMISSION • -27-