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HomeMy WebLinkAbout04/18/20020 Planning Commission Minutes April 18, 2002 Regular Meeting - 6:30 p.m. ROLL CALL CITY OF NEWPORT BEACH Commissioners McDaniel, Kiser, Agajanian, Tucker, Gifford, Kranzley and Selich - Commissioner McDaniel was excused; Commissioner Selich arrived at 6:50 p.m. STAFF PRESENT: Sharon Wood, Assistant City Manager Patricia Temple, Planning Director Dan Ohl, Deputy City Attorney Rich Edmonston, Transportation /Development Services Manager James Campbell, Senior Planner Todd Weber, Associate Planner Jana Egan, Department Assistant Ginger Varin, Planning Commission Executive Secretary Pi Minutes: Motion was made by Chairperson Tucker to approve the minutes of April 4, 2002 as amended. Ayes: Agajanian, Tucker, Gifford, Kranzley Noes: None Excused: McDaniel, Selich Abstain: Kiser Public Comments: Postina of the Agenda: The Planning Commission agenda was posted on Friday, April 12, 2002. • Minutes Approved None Posting of Agenda • City of Newport Beach Planning Commission Minutes April 18, 2002 SUBJECT: Brown Duplex 405 Dahlia Avenue • (PA2001 -173) Substantial conformance review related to reorientation of the garages. Chairperson Tucker noted that this item had been reviewed at the last two meetings with no consensus. Commissioner Kiser noted he had missed the last two meetings but listened to the March 21st tape when this matter was discussed; and he had reviewed the minutes of the April 4th meeting on this matter as well. Continuing, he noted that the question before the Commission is whether the revised plans substantially conform to the approved plans. In that regard, he stated: • Changes in the plan now are that the cars will enter and exit the garages from the east side of the property instead of the north side of the property. • Access will be directly from the street instead of over a recorded reciprocal access agreement with a neighbor. • Parking in the garages is now tandem, instead of side by side. This alone I consider a substantial change from the prior plans. • We will lose one on- street parking space, which would have been gained from the prior plan. Landscaping will be lost from the east side of the property, even though the applicant is suggesting he would do some type of 'Grass Crete' treatment there. • The staff report acknowledges the previously approved plan, 'is arguably the more superior plan,' than the plan we are being asked to find tonight in substantial conformance. • How can you find this to be in substantial conformance while at each juncture with the things I have mentioned, the answer is no? • The revised plan is not an insignificant change of a plan that substantially conforms with the approved plan. • Finding this plan in substantial conformance would set a precedent and send a signal to staff that they could find plans re- submitted by an applicant after Planning Commission approval, which significantly differ, as this one does, from the approved plans, to be in substantial conformance. • This would be a dangerous precedent to set and a bad decision. Motion was made by Commissioner Kiser that the revised plan is not in conformance with the plan that had been approved. Chairperson Tucker noted that with the involvement of the neighbor, the good faith effort of the applicant and the fact that the standards by which we review substantial conformance I think are not as stringent as the granting of the • variance in the first place. I would support the substantial conformance finding, as a certain amount of it has to do with compassion with the circumstance. I INDEX Item 1 PA2001 -173 Denied • City of Newport Beach Planning Commission Minutes April 18, 2002 don't think it is a great affront to the findings that we need to make, I do believe it will be expensive for the applicant to go back and take advantage of the variance that he still has. Looking at the circumstances, I think we ought to find for substantial conformance and move on. Ayes: Kiser, Agajanian, Kranzley Noes: Tucker, Gifford Excused: McDaniel Absent: Selich SUBJECT: Hyatt Newporter 1107 Jamboree Road • Use Permit No. 2001 -031 (PA 2001 -180) A request to permanently include the Summer Jazz Series as an annually recurring event, ancillary to the normal operations of the existing resort hotel facility. Ms. Temple stated that this project does not include pavilion events nor anything associated with the 4 day Jass Festival, which occurs in the springtime. . Commissioner Kranzley noted the Noise Ordinance states that you should not be able to hear 100 feet from the source of the sound, which would mean that if you are in the back row of the ampitheater you would not be able to hear the music. I think we need to find a more rational and logical noise measurement. I am in support of this project, however, I believe we need to look at the Noise Ordinance. Ms. Temple noted her agreement stating that one audibility standard is on amplified sound and does not apply to acoustical instruments. That old standard was geared towards certain types of amplification that occur within buildings and is somewhat outdated and in some circumstances not enforceable. I agree and in working with the City Attorney's office, we have identified a number of changes and it is a matter of finding the staff resources and time to actually accomplish a review of Chapter 10.32 and Chapters in Title 5. Commissioner Kiser asked if we were to approve this use permit tonight and if it directly conflicts with our Chapter 10.32 paragraph D about the sound not being audible in excess of 100 feet from the sound amplifying equipment. If these two things are true, can we override this, or am I missing something? Ms. Temple answered that you don't override a Municipal Code provision with a use permit, however, this is the aspect of this particualar provision that in some cicumstances may not be enforceable at all. What the noise report attempted to do was to show that in every other way, this permit is consistent with all of the other provisions of the code and concluded in the end that if any of the noise • becomes to the point where it is considered loud and unreasonable based on Title 10.28, that the City has the authority to order cessation immediately and that INDEX Item 2 PA 2001 -180 Approved • City of Newport Beach Planning Commission Minutes April 18, 2002 this was sufficient protection. Commissioner Kiser then asked for input from counsel about our approving something that has been presented as contrary to the City Ordinance that is in front of us. I would add that paragraph E appears to also fly in the face of what we are being asked to do tonight that indicates that sound amplifying equipment shall not be used between the hours of 8:00 p.m. and 8:00 a.m. Commissioner Selich arrived at 6:50 p.m. Mr. Dan Ohl answered that this is an issue that his office has looked at, however, there doesn't seem to be a specific consensus, although they are inclined to conclude that the Commission would not have the authority to approve a use permit that violates provisions of the Municipal Code. Commissioner Kiser then stated his concern of where this potential approval would leave the applicant, the potential liability of the City and with respect to the citizens. He noted he would like to approve this application, but is having trouble with these issues. Mr. Ohl answered that there is no issue of liability and the City has specific . immunity for any decisions to issue or not issue a permit. In terms of where it places everybody, there is no definitive decision that has been made in our office. Commissioner Kiser stated that he would not be voting for this tonight because of these two statutes. Commissioner Gifford noted this has been a problem for a long term. This particular application, since it goes forward anyway under a Special Events Permit isn't prejudiced by coming face to face with this issue. Perhaps this is the application that forces the issue to be addressed because it has been a real problem since the noise ordinance passed. I would be inclined to vote as Commissioner Kiser because this application presents an opportunity to force the resolution of this issue. Chairperson Tucker stated he would vote on this application tonight and then clean up and amend the ordinance later. Commissioner Kranzley added that it gives a buffer, especially in that location, that if there are problems with neighbors, this would be a fail /safe mechanism. This is a perfect location for this, but in case the next owners of the Newporter decide they would have a loud band, this gives us protection. I think we are okay to vote in favor of this item and then deal with the noise ordinance as soon as we can. Chairperson Tucker noted that the loud and unreasonable noise has been the • trigger point. We have not relied on the 100 feet from the sound equipment, although it is bizarre. What is the purpose of amplification if you can't hear it 100 INDEX City of Newport Beach Planning Commission Minutes April 18, 2002 feet away? Most people don't need amplification for less than 100 feet away. The problem I guess is that we have conflicting ordinances and you have to figure out which one you want to pick as superior because there is no guidance in the ordinances themselves. Todd Weber, Associate Planner noted the following changes: • Condition 90 - should say, 'Maintain a calibrated integrating sound level meter for noise level monitoring purposes,' as the applicant had purchased one for the purpose of the noise study and improvements to the sound system. • Condition 9h - should read,' employing the same audio engineers or a replacement In conjunction with City approval....'. The applicant has indicated that there may be some problems in trying to keep the some person and want some flexibitliy. Kevin Culbertson, Culbertson Adams and Associates, representing the applicant noted: • Condition 9c - talking about the onsite contact if there are any percived problems. Following a brief discussion, it was decided to edit the last sentence, 'Adequate steps shall be taken to resolve the complaint, including actions such as lowering the music setting or stopping the . event upon order of the Police Department.' The Police Department always has the discretion to not require any corrective actions if no valid problem is documented in the field. • Condition 9b - surprised to see this condition listed because some studies had been done in the year 2000 where measurements were taken. That study is part of the report and the program here. Last year's event employed state of the art sound measurement as well as stringent monitroring during the events. There were no recorded complaints for this series. I believe this particular condition related to a previous component of this applicant (Holdiay Pavilion). That component is no longer part of this application. It was also the applicant's understanding that if any additional monitoring was going to take place it would be at the City's expense as opposed to the applicant's. It refers to monitoring activities for all events. The Summer Jazz Series has 20 events that occur every Friday night, that would seem too much to assess each event as opposed to doing some randomly over the period of time. Ms. Temple stated that the conditions were drafted to provide us with the greatest level of security in this regard since it is a use permit entitlement, now a vested entitlement as opposed to something which needs to be renewed on a regular basis. It depends on the level of comfort the Commission has in the noise study, conditions of approval and the monitoring work and the operation of the series during the last calendar year as to whether this level of monitoring is required. From staff's point of view, if we can retain a condition that if we start to incur complaints, that we can require that further acoustical engineering monitoring be • conducted during events would give us at least some level of protection. We INDEX . City of Newport Beach Planning Commission Minutes April 18, 2102 should not make that just for the first year but for the ongoing operation of the series. In all cases where the City is giving direction or making determinations that probably should be identified as the Planning Director. Mr. Culbertson agreed to that and added that the applicant was under the impression that the expense was going to be borne by the City instead of the Hyatt. Commissioner Kiser suggested that 9b should be changed to read,' provide a contract for a licensed acoustical engineer to monitor the activitities associated with the Jazz Series ff it is determined by the Planning Director to be necessary to achieve compliance with these conditions. Commissioner Kranzley asked about Condtiion 2, the final sentence shall end with,'... must have prior approval by....' It is clear on this condition we are not using censorship on the music played, but if we are approving the Summer Jazz Series and all of a sudden it becomes a heavy metal series, are they in substantial conformance with the use permit? Chairperson Tucker noted the differences with the business practicality and the clientele that will be achieved by having jazz as opposed to something else. • Commissioner Kiser noted he would like to vote for this tonight, but because of the direct wording of the ordinance, 10.32.060 D and E will abstain. I hope something is done to revise that ordinance. Commisioner Gifford noted she would also abstain. Motion was made by Commissioner Kranzley to adopt a Mitigated Negative Declaration for the project and approve Use Permit 2001 -031, subject to the findings, Mitigation measures and conditions of approval attached, by adopting Resolution No. 1557 entitled, "A Resolution of the Planning Commission of the City of Newport Beach Approving UP No. 2001 -031 for Property Located at 1107 Jamboree Road with the changes as discussed with Conditions 2 and 9a, b, c and h. Ayes: Agajanian, Tucker, Kranzley, Selich Noes: None Abstain: Kiser, Gifford Excused: McDaniel SUBJECT: Newport Harbor Shipyard 101 Shipyard Way • (PA2001 -158) • Request for a Use Permit to allow construction of a paint spray booth that exceeds INDEX Item 3 PA2001 -158 Continued to • City of Newport Beach Planning Commission Minutes April 18, 2002 the maximum height limit within the 26/35 Height Limitation Zone. The paint spray booth replaces an existing paint booth. 0 40 Ms. Temple requested this item be continued to May 9, 2002. Motion was made by Chairperson Tucker to continue this item to May 9th. Ayes: Kiser, Agajanian, Tucker, Gifford, Kranzley Noes: None Excused: McDaniel, Selich ADDITIONAL BUSINESS: a) City Council Follow -up - Ms. Wood reported that at the City Council meeting of April 9th the Council approved on second reading the changes for Camco Pacific and Pacific Republic Capital; approved a professional services agreement with the firm Urban Crossroads who are going to be updating our traffic model as one of the technical studies leading up to the General Plan Update; the Van Cleve appeal was continued indefinitely; and a resolution for guidelines for sober living facilities in our City where the County would certify them for meeting those guidelines after an inspection by City staff. b) Oral report from Planning Commission's representative to the Economic Development Committee - none. C) Report from Planning Commission's representatives to the General Plan Update Committee - none. d) Report from Planning Commission's representative to the Local Coastal Plan Update Committee - none. e) Matters that a Planning Commissioner would like staff to report on at a subsequent meeting - none. f) Matters that a Planning Commissioner may wish to place on a future agenda for action and staff report - review of the Noise Ordinance. g) Status report on Planning Commission requests - Ms. Temple presented an update of the listing noting that items 6, 9, 12 and 13 are either new items or updates. Chairperson Tucker asked that any NOP's be distributed to the Commission for informational purposes. h) Project status - Ms. Temple reported that the Newport Fish Company has closed and have ceased pursing any amendments to the use permit. Requests for excused absences - none. INDEX 05/09/2002 Additional Business City of Newport Beach Planning Commission Minutes April 18, 2002 INDEX ADJOURNMENT: 7:30 p.m. I Adjournment EARL MCDANIEL, SECRETARY CITY OF NEWPORT BEACH PLANNING COMMISSION 40