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HomeMy WebLinkAbout04/22/2004Planning Commission Minutes 04/22/2004 CITY OF NEWPORT BEACH Planning Commission Minutes April 22, 2004 Regular Meeting - 6:30 p.m. Page 1 of 34 file: //F: \Users \PLN\Shared \Planning Commission\PC Minutes \Prior Years\2004\0422.htm 6/26/2008 INDEX ROLL CALL Commissioners Eaton, Cole, Toerge, McDaniel, Selich, Kiser and Tucker - all present. STAFF PRESENT: Patricia L. Temple, Planning Director Robin Clauson, Assistant City Attorney Patrick Alford, Senior Planner Rich Edmonston, Transportation /Development Services Manager Ginger Varin, Planning Commission Executive Secretary PUBLIC COMMENTS: PUBLIC COMMENTS Pete Polette, Chairman of the Board of Trustees of the Newport Harbor and Nautical Museum, noted the following: The museum is the only nautical museum in Orange County; been in operation for about 18 years; self funding; major City asset serving local citizens and visitors to the City; museum fulfills a requirement for a low cost general access coastal cultural facility; students attend educational programs at the museum; many groups participate in the educational programs as well; offers adult lecture series; community services and activities such as Family Boat Building Weekend, Heritage Regatta and Festival, and art shows and over 25,000 people attend these activities. He then thanked the Commission for the support of these efforts. POSTING OF THE AGENDA: POSTING OF THE AGENDA The Planning Commission Agenda was posted on April 16, 2004. CONSENT CALENDAR MINUTES of the adjourned and regular meeting of April 8, I ITEM NO. 1 file: //F: \Users \PLN\Shared \Planning Commission\PC Minutes \Prior Years\2004\0422.htm 6/26/2008 Planning Commission Minutes 04/22/2004 2004. Motion was made by Chairperson McDaniel to approve the minutes. Ayes: Noes: Absent: Abstain: xxx Eaton, Cole, Toerge, McDaniel, Selich and Kiser None None Tucker HEARING ITEMS SUBJECT: John Blom Photography Mural 3732 E. Coast Highway Ms. Temple noted that the maximum size of a sign is 200 square feet or 40% of the wall area, whichever is less. The applicant had asked how many modification permits that the City approved for signs exceeding the size limits of the Code city -wide. We have no way to compile that data on a city -wide basis. Our data base tracks modifications for signs but not specifics of what the application was for, and this would require an inordinate amount of research in order to answer that question. We do know that modifications for sign size are the least requested of the three types of modifications that we are able to approve. The other two are the number of signs on site and the height of a sign on site. At Commission inquiry, she noted that the applicant could still apply for a modification. Commissioner Eaton noted that the images hanging by clips were evocative of a film developing studio. If the string and clips were removed so that the images were free floating on the background, would they still be considered part of a sign? Ms. Clauson answered that is the question for the Commission to determine, whether the whole or any part of the images on the side of the building constitute a sign per our Code and what would not constitute a sign. Commissioner Cole confirmed that per the report, staff feels the sign mural is an image of what the proprietor does in the shop and that is why it is a sign, as it is related to photography. Ms. Clauson answered that staff is saying that the mural is related by language, logo or imagery to the advertisement of any product or service, so it falls within that definition. Commissioner Toerge asked for clarification of procedural Page 2 of 34 ITEM NO.2 Approved file : //F: \Users\PLN\Shared\Planning Commission\PC Minutes \Prior Years\2004 \0422.htm 6/26/2008 Planning Commission Minutes 04/22/2004 differences between the action tonight and a modification, and any other opportunities to condition any approval of the mural under either of the two procedures. Ms. Temple answered that this is an appeal of the Planning Director's determination that this does in fact constitute a sign. This particular procedure is the applicant requesting the Planning Commission to overrule that determination and determine that this does not fall within the definition of a sign. That is all you can do, this is not an action that can be conditioned. A modification permit is a discretionary permit which the City can either approve, modify or deny and attach conditions to it. Also, it includes a public notice. Ms. Clauson added that some other options are that the Planning Commission might determine that only part of what is painted on the side of the building is a sign. If you determine it is not a sign, or any portion is not a sign, then it is not regulated by this Code and would be allowed to remain. If it was determined to be a sign, or any portion, it would then have to be regulated and would have to comply. If it exceeded the 200 square feet, the applicant would have to obtain a modification permit. The process of a modification looks at the size of the sign and not the content of the sign. The only reason we are involved with looking at the content of the mural is just to determine whether it is related by language, logo or imagery to the advertisement of any products or services to determine if it is a sign in the first place. After that, you can not condition on what it looks like. If you were to approve the entire wall as designed and say that is a sign, but want to issue a modification permit for it, you have then approved a modification permit for a sign that large on the side of the building without regard to content. Chairperson McDaniel noted an email sent by the applicant to the Commissioners with attached graphics. John Blom, owner of the mural, noted: his involvement with the community, He has been at the present business location for 15 years and has always wanted to brighten up the west facing wall that faces Honey Baked Hams. Both he and his wife chose a mural depicting some of the beautiful things and places in Corona del Mar. The artist chosen painstakingly painted each image and background. The mural took about a month to complete. . He then noted some of the subjects of the mural; dolphins Page 3 of 34 file: //F: \Users\PLN\Shared\Planning Commission \PC Minutes \Prior Years \2004 \0422.htm 6/26/2008 Planning Commission Minutes 04/22/2004 standing in the median at PCH and Marguerite and the race boats. The images are painted as old time photographs hanging on a dark room wire waiting to dry. . There is a definite distinction between portrait photography that I am noted for and scenic snapshots that are painted in the mural. He has never published a scenic photograph in any of the media he advertises in and thinks this answers the question raised in the staff report about the 1995 ruling that the Planning Commission made about not allowing coffee and bagels to appear on a wall near a coffee shop. His mural does not advertise the product he creates as he does not do scenic pictures. The definition of murals and super graphics states that, "A mural or super graphic is a sign only if it is related by language, logo or imagery to the advertisement of any product or service... ", He does not do those products. He wanted to brighten up a blank wall and make people feel good when they saw it. He did not intend to make trouble. He has had many positive responses and it has been welcomed by many. . The film coming out of the canister with his logo is a sign. It is far less than 200 square feet of the entire wall mural. It is also attached to an existing sign that has been in place for 15 years. . Selective enforcement - he then presented pictures depicting signs at the Balboa Boat Yard, Burr White, Frog House, and Cappy's Cafe and asked if these were signs or murals? Commissioner Eaton asked if he would modify the strings and clips. He was answered yes. Commissioner Kiser noted that what the Commission can do is change a modification or condition it or just approve it. The difficulty here is what we are allowed to do tonight, we can only support or not support the Planning Director. We do not have the flexibility if this was an appeal of a modification. He then asked if the photograph of a bride and groom is something that is done as part of business? Mr. Blom answered yes, he does weddings. That particular church is well known as the local wedding chapel and that is the only reason why the bride and groom are depicted there. It tells a story Page 4 of 34 file: //F: \Users\PLN\Shared \Planning Commission\PC Minutes\Prior Years\2004 \0422.htm 6/26/2008 Planning Commission Minutes 04/22/2004 about the church. Public comment was opened. Robert Walchli, Corona del Mar resident, noted the following: . Supports the applicant. . The mural reflects the applicant's desire to improve th< appearance of Corona del Mar. . The scenes are local and this should not be considered sign but rather a mural. . He asked that this mural be retained, as it's art not a sign. Commissioner Tucker asked the speaker if the use changed and i ended up being painted with something other than the quality wi have here would there be objections. If it goes through modification it becomes a sign and there is no ability that we haw at a later date to deal with the content of the sign. The conten might change. If it is determined to be a sign and we give permission for the sign to be there through the modificatioi process, then we don't have the ability to control the content at o later date. That is what our issue is, I don't have an objection ti what is there now. We don't only think about the person who is ii front of us, we think about the future too. Mr. Walchli answered that if the mural as an art was changed to sign of a new business that would be objectionable. If there is some way to maintain that this retains the art feature then people in the neighborhood would not complain. Commissioner Kiser asked to what extent does the Plannini Commission have to control the content of a mural? Ms. Temple answered, none. Public comment was closed. Commissioner Selich noted that it would be a bad idea to legitimize this as a sign for some of the reasons stated by Commissione Tucker and he would not be in favor of dealing with this through modification permit. He believes that the images are not indicative of the kind of business that is operated there. It is a close ca because of the line and clips, he would be inclined to find this as mural because it is better for us in the long run then to try and des with this as a sign through the modification permit. If that opinion i not held by the majority of the Commission, he would encourag Page 5 of 34 file: //F: \Users \PLN\Shared\Planning Commission\PC Minutes\Prior Years \2004 \0422.htm 6/26/2008 Planning Commission Minutes 04/22/2004 the Commission to look at ways along the lines Commissioner Eaton suggested to make some slight modifications to it that we can bring it in to the finding that it is a mural so that we are not dealing with it as a sign issue. Commissioner Eaton asked what could be done. Ms. Clauson answered that if the Commission wants to determine that as is it is a sign, but if certain changes were made you would not believe it was a sign, that would be fine. It would be a painting on the side of a building and would not be regulated as a sign and would be able to remain there for as long as the applicant wanted it to. Motion was made by Commissioner Eaton to uphold the decision of the Planning Director, but find as a consensus of the Commission, that if the line and clips were painted out, the Commission would then find all that part of the mural other than the can and film not to be a sign. Chairperson McDaniel noted he sees this as a sign. Commissioner Kiser noted that he would like to find a way to keep this sign /mural because it is attractive. It took a big blank wall and made it into something attractive. He is concerned about whether it be mural or sign what might be done with it in the future. The problem of the depiction is the one showing the wedding because that is within what the photography studio does. The other four, don't appear to be. He would be comfortable calling it a mural if some change is made to that wedding depiction and is okay with or without the clips or line at the top and would support the motion with the modification. Commissioner Selich asked about the other signs depicted in the photos presented tonight? Do they have sign permits? Ms. Temple answered of one and that is the Burr White Realty mural. She had concluded that the text part is definitely a sign but the depiction of the wave at the wedge, sand and lifeguard station were not related to the business. So, that one complies. She had not seen the one on the Frog House and plans to review it. These are judgment calls in every case that she makes. We have struggled with the issue of mural /sign. Mr. Blom's presentation was excellent in detailing why his is different than what would be a rather straight forward determination. We are dealing with things that have been done by artists whether they are concluded to be a sign or not. Staff has discussed a few other mural /signs in the City. Commissioner Toerge noted he believes the mural is an improvement and that if the lines and clips were removed, it will no longer appear to be photographs hanging on the line but rather Page 6 of 34 file : //F: \Users\PLN\Shared\Planning Commission\PC Minutes\Prior Years \2004 \0422.htm 6/26/2008 Planning Commission Minutes 04/22/2004 images floating in the air. He supports the motion. Ayes: Noes: Absent: Abstain: Eaton, Cole, Toerge, McDaniel, Selich, Kiser and Tucker None None None SUBJECT: Josh Slocum's Dinner & Supper Club (PA2003 -220) 2601 W. Coast Highway Ms. Temple noted that staff has requested this item be continued to May 6, 2004 to allow additional time for staff analysis. Motion was made by Chairperson McDaniel to continue this item to May 6, 2004. Ayes: Eaton, Cole, Toerge, McDaniel, Selich, Kiser and Noes: Tucker Absent: None Abstain: None None SUBJECT: Local Coastal Program (LCP) Land Use Plan (LCP Amendment No. 2004 -001 (PA2003 -093) Chairperson McDaniel stated that this item will be a review of staffs written responses to all of the comments received on the draft Local Coastal Program Land Use Plan contained in the 66 page report. He noted that each page of the responses will be reviewed and informed the audience if they had comments they would be allowed one minute to speak. He stated this is the opportunity to make a point, not to debate an issue. Mr. Patrick Alford, Senior Planner, noted that revisions have been provided on an Errata sheet which represents staffs recommendation. We intend that this be the exhibit in the resolution should the Commission choose to recommend approval of the document tonight. If there are any recommended changes, we intend to incorporate those as well. But, if the Commission wants to see an actual revised complete document, then staff would need time to do complete that. Page 7 of 34 ITEM NO.3 PA2003 -220 Continued to 06/06/2004 ITEM NO.4 PA2003 -093 Recommended for approval file : //F: \Users\PLN\Shared\Planning Commission\PC Minutes\Prior Years \2004 \0422.htm 6/26/2008 Planning Commission Minutes 04/22/2004 Chairperson McDaniel noted to the Commissioners that if they had comments let's give direction to staff. If there are comments and disagreements, I will take a straw vote. If there are 4 votes to change it, we will direct that change. Commissioner Cole asked about the current LCP and what is driving the changes and the process of the Coastal Commission. Mr. Alford noted the following: The LCP consists of two parts: a Land Use Plan that is the policy document that you are seeing tonight. The second part is the implementation plan, which has all the various ordinances and regulations that would implement the policies of the Land Use Plan. . The City of Newport Beach currently has a certified Land Use Plan that was first certified in 1981 and re- certified in 1990. We do not have a certified LCP, we only have a certified Land Use Plan, we never adopted the implementing ordinances. Senate Bill 516 requires the City submit an application for a completed LCP certification. When we submitted all our documents to Coastal staff, they concentrated their review on our current Land Use Plan and felt it needed a comprehensive update. . In addition to proceeding with the second part of the implementation plan, we had to do this comprehensive update of the Land Use Plan and that is before you tonight. . If this is passed on to the City Council and they approve it, it will then go to the Coastal Commission and they will either certify it with or without changes. It will come back to the City if we need to incorporate additional changes and then we will start the process anew for the implementation plan. . The current Land Use Plan was deemed inadequate by the Coastal Commission staff as it had not been changed in some time and needed updating. . We have taken the Coastal Act and all the various policies and regulations we have on the books to craft a new document that is intended to take care of the deficiencies that Coastal Commission staff pointed out and also to implement all the policies and standards we have as well. Ms. Temple added: Page 8 of 34 file: //F: \Users \PLN \Shared\Planning Commission\PC Minutes \Prior Years\2004 \0422.htm 6/26/2008 Planning Commission Minutes 04/22/2004 The 1990 LCP was an effort to incorporate the 1988 General Plan provisions in regards to land use into the certified 1981 Land Use Plan. It was not as complete an update as the current one is. We are looking at a document in its actual function more than 20 years old. It was no surprise that the1981 document was considered by Coastal staff to be antiquated in many areas. Chairperson McDaniel asked members of the audience to raise their hand if they wanted to comment on any page as it was being reviewed. The Planning Commission reviewed the Response to comments by page. The pages that were either discussed by the Commission or where testimony was given follows: Page 1: Commissioner Eaton noted: He raised this issue as it had to do with Policy 3 under general policies where it states that when there are conflicts between the Land Use Plan (LUP) and the General Plan, the LUP policies shall take precedence. This undermines the City's General Plan update effort. He noted that the language as written currently in Policy 3 is too blunt. The City has spent more than a million dollars in updating the General Plan. . Staff was asked to come up with alternative language that is preferable and asked that it be approved and included in the Errata. Mr. Alford answered: . The language was discussed in the previous staff report but staff did not recommend that language be incorporated. . We reiterated the reasons why in the included response to comments. Straw vote: Commissioner Selich - supports staff. The language that is in Page 9 of 34 file : //F: \Users\PLN\Shared \Planning Comrnission\PC Minutes\Prior Years\2004 \0422.htm 6/26/2008 Planning Commission Minutes 04/22/2004 there now was discussed in committee sessions and best addresses this issue. Commissioner Tucker - supports staff. Commissioner Kiser - supports staff. Chairperson McDaniel - supports staff. Page-5; Commissioner Toerge asked for clarification if commercial zones were being added or not. Mr. Alford answered: This information is on various properties that have very specific land use restrictions. That while they were within the range, by narrowing them down with these new categories, they more closely reflect what is in the Land Use Element of the General Plan. By incorporating these new categories and applying it to specific properties on the map, staff feels we have corrected that problem. There is now a lower land use category for properties that have a lower than .5 FAR. Page 7: Jessica Joiner, noted that there is an error in her printed comment. The last part of her sentence should read, '.....not subject to the policies dictated in the LCP and are to be included in any categorical exclusion.' She asked that this be changed in the internet. Jan Vandersloot, noted he does not believe that coastal bluff is defined as marine erosion. It has to do with the basic land form and basic parameters of steepness. There should not be any categorical exclusions. Commissioner Toerge noted that he believes that the bluffs are coastal. Mr. Alford stated that the definition in question was taken from the California Code of Regulations, which is the administrative document for the Coastal Commission. The definition for coastal bluff is in the glossary and we are recommending that it be modified to indicate that it be used only for purposes for establishing permit and jurisdictional boundaries which is the relevant section of the Code of Regulations. Page 10 of 34 file: //F: \USeIs\PLN\3hared \Planning Conunission\PC Minutes\Prior Years\2004 \0422.htm 6/26/2008 Planning Commission Minutes 04 /22/2004 Page 11 of 34 Renetta Caya, noted: . She has a problem with the definition of coastal bluff. Either further define what coastal bluffs are, or add exclusions to coastal bluffs, that would help and assist homeowners in what areas are being specifically targeted. . As a future homeowner in Irvine Terrace, she would like to see it specifically excluded as a coastal bluff and retain that categorical exemption. Ms. Temple noted that in drawing specific line boundaries, we prefer to keep the definitions as such. When we get to the implementation plan, you will be applying these definitions through the re- application of the categorical exclusions and then we will start drawing the lines. Commissioner Toerge noted that the definitions refer to '.....subject to marine erosion within the last 200 years....' Wouldn't you suggest that those bluffs were at one time within the last 200 years subject to erosion? Mr. Alford answered, yes, that is why in the Revisions and Errata we have revised the definition to state that a coastal bluff is a bluff overlooking a beach or shore line or that is subject to marine erosion and that for purposes of establishing jurisdictional permit boundaries, we follow the definition that is in the Land Use Plan. That would be the definition of a coastal bluff for establishing jurisdictional permit boundaries for appeal areas and for the areas that need Coastal Development Permits. The overall definition of coastal bluff within the document is less specific and more generalized. Commissioner Tucker noted that there are policies that protect coastal bluff. How do you get from this jurisdictional and permit boundaries redefined to mean the policy of what happens with coastal bluff? Mr. Alford noted: The previous definition included references to marine erosion historically, but more particularly there is another part of that definition that says the 'toe of the bluff is within an appealable area.' That created certain problems with this document, specifically within Irvine Terrace. The toe of those bluffs are within the appeal area. All those bluffs along Irvine Terrace would meet the definition of coastal bluff under the California Code of Regulations. file : //F: \Users\PLN\Shared \Planning Commission\PC Minutes \Prior Years\2004 \0422.htm 6/2612008 Planning Commission Minutes 04/22/2004 . That section within the California Code of Regulations only deals with permit and jurisdictional boundaries. . We want to clarify the definition used only for that purposes. . There is a whole section on coastal bluff policy only. . If we went strictly with the California Code of Regulations definition it would include some areas as coastal bluff that the City may not want to define as coastal bluff. . It might be fine for establishing where a coastal development permit is required or where an appeal area boundary is, but you may not want to use the policies for protecting coastal bluff for that definition. . We can have a more detailed and precise definition of coastal bluff and how those policies would apply in the implementation plan. For now, we have to have a more generalized definition of coastal bluff for the application of protection policies and limit the Code of Regulations definition to only using it for permitted and jurisdictional boundaries. It would include too many areas that should not be considered coastal bluffs and should not be part of the protection policies. At Commission inquiry he noted that Promontory Point and Irvine Terrace have been singled out to be excluded. It might come up in other areas where they might have historically been coastal bluffs. For example some of the areas on Coast Highway near Hoag, there were bluffs there at one time but Cal Trans operations has pretty much obliterated those. But, if there is a bluff there now and it toes into the appealable area it would fall under the definition of coastal bluff and all the policies that we have for true coastal bluffs would have to be applied to that severely altered and manufactured slope. . The intent is to apply policies to areas that really have natural coastal bluffs and not the ones that have been cut or filled to the point that they have no resemblance to the original natural landform. Commissioner Toerge noted he does not agree that Irvine Terrace should be included. Mr. Alford noted that if the Commission wants to give direction, changes could be made and included. He noted that all of Irvine Terrace is in the existing categorical exclusion. The commitment Page 12 of 34 file: //F: \Users \PLN\Shared \Planning Commission\PC Minutes \Prior Years \2004 \0422.htm 6/26/2008 Planning Commission Minutes 04/22/2004 Page 13 of 34 we had from the Local Coastal Plan Certification Committee was that we would leave the existing exclusion intact as much as possible. If we went with the definition of coastal bluff that is in the Coastal Code of Regulations then it is possible that the bluffs in Irvine Terrace could not be a part of the new categorical exclusion. The main thrust behind some of these changes was to alter the definition of coastal bluff to make sure that the areas that probably should not be included as coastal bluff are not and that the categorical exclusion that covers Irvine Terrace will continue to do so in the new policy. Chairperson McDaniel confirmed that categorical exclusions still gives the City the right to determine what is built there. He was answered that it excludes them from the provisions of the Coastal Act that require Coastal Development Permit. Commissioner Eaton asked for an explanation of appealable areas and categorical exclusions and whether there is ever an overlap? Mr. Alford answered that there are overlaps currently. After an LCP is certified, the City will retain permit jurisdiction in most of the coastal zone. There will be certain areas that are a certain number of feet from certain types of land forms and habitat areas: coastal bluff, streams, wetlands, and the mean high tide line. There is a right to appeal Coastal Development Permit approvals to the Coastal Commission. If an appeal area extends into an area that is covered by the categorical exclusion, because there is no permit required under that categorical exclusion, there is nothing to appeal. Discussion followed on the definition of coastal bluff, marine erosion and the use of the implementation plan. Commissioner Tucker noted that based upon the definition, anything along Bayside Drive would also not be a coastal bluff. Mr. Alford confirmed, noting that right now we need something that is more broad in nature that we can interpret and then clarify through the implementation plan to cover the areas where we want protection provided. A lot of those areas that have been cut and filled to the point that they are no longer natural landform, those areas can be excluded, particularly for purposes of making the categorical exclusions. Commissioner Tucker noted he would support the staffs position. Commissioner Selich noted it is important to protect all the categorical exclusion areas in this document. If we have to finesse the definition of coastal bluff in order to do that I think that is file: //F: \Users\PLN\Shared \Planning Commission \PC Minutes \Prior Years\2004 \0422.htm 6/26/2008 Planning Commission Minutes 04/22/2004 important. There is nothing to say that when we adopt the implementation plan that we can't adopt a set of development regulations for the bluff slope area of Irvine Terrace going down to Bayside Drive that would be similar to regulations on a coastal bluff. Phillip Bettencourt noted on behalf of the owners of Banning Ranch: . Staff has given one definition of coastal bluff, yet has another set that would sweep in the whole of Banning Ranch (400 +acres) including some areas of 'bluff that overlook oil wells and the Huntington Beach sewer treatment plant. There is no scientific basis in the administrative record to form the definition for either one. There is no question that the whole of Banning Ranch is in the coastal zone. The property owners have a jurisdictional wetlands survey that has been approved by the Corps of Engineers and by the State Department of Fish and Game. They know where the marine erosion boundary is. . Vast swaths of bluff areas do not meet the coastal bluff 200 year definition as areas were not subject to marine erosion in the first place or that were profoundly disturbed by development or development that did not otherwise proceed. . Once the property is presumed to be in the coastal bluffs you pick up a whole series of regulations with it. That is troublesome and 1 don't think that is sound regulation on that basis. What ought to be done with the land form is a separate policy. To classify them as coastal bluffs without any scientific basis I don't think is constructive. Commissioner Selich asked if this information is valid, is there any way to incorporate that as the definition of coastal bluffs for the Banning Ranch area? Mr. Bettencourt clarified that some portions would meet the definition and some would not. He is just saying that there is predisposition to the extent that statements are made about the classification of portions of the property for which there is nothing in the administrative record to support it. Some portions are because the erosive line has been established, but it is not the whole of the 400 acre property. We would like to not get caught up in that determination until the whole of the material is present. In Page 14 of 34 file: //F: \Users \PLN\Shared \Planning Commission \PC Minutes \Prior Years\2004 \0422.hthn 6/26/2008 Planning Commission Minutes 04/22/2004 Page 15 of 34 this case the removal of the determination of the whole is not helpful to include these categorical statements about the regulatory conditioned properties that is not based on evidence. Fleetwood Joiner suggested that this definition should refer to future marine erosion. This might help save the areas where we are concerned in Corona del Mar where we do have bluffs against the ocean, sand and surf. In areas where there are bulkheads, utilities, streets and other properties that separate us from the harbor such as Irvine Terrace that would be excluded because they are not subject to future marine erosion. Commissioner Tucker expressed his concern about the LCP imposing constraints on the Banning Ranch property due to the bluffs and being a deferred certification area. Mr. Alford suggested that a separate LCP segment just for Banning Ranch property to address all the complex issues as it is a deferred certification area be done in the future. Pie-8 Commissioner Selich, referencing Section 2.2.3: Look at protecting the existing exclusions tied in with the approval of this document. . Can the City approve an LCP with the caveat that if the Coastal Commission does not approve the categorical exclusion application then the City's approval of the LCP is rescinded? Mr. Alford answered that the Coastal Commission can not approve a categorical exclusion as part of an LCP. That has to be a separate action. Ms. Temple noted that it is staff's intention that final certification of the LCP and the new categorical exclusion will happen simultaneously as subsequent actions on one agenda. When we get to that point, the City will know whether it is going to be able to accept what the Coastal Commission is going to impose. We do not have to accept and ratify a certification if we choose not to. In fact that is what San Clemente recently did. Page 10 Commissioner Tucker noted the provision on Section 2.2.4 - will the implementation plan have a deferral for the Banning Ranch? file: //F: \Users \PLN\Shared \Planning Commission\PC Minutes\Prior Years \2004 \0422.htm 6/26/2008 Planning Commission Minutes 04/22/2004 Mr. Alford answered that the implementation plan will proceed as quickly as possible after the Land Use Plan is certified and approved by the Coastal Commission. He doesn't envision that the Banning Ranch will get ahead of the implementation plan. The bulk of the implementation plan will be Title 20 of the Zoning Code, but we do have the Planned Community texts that are stand alone adopted ordinances, those PC's in the coastal zone will be incorporated as part of the implementation plan. We will probably amend the Banning Ranch portion to indicate that is a deferred certification area. Page 11 Fleetwood Joiner stated his intent when he bought his property was to go down one basement level below and get a view. His concern is the definition of non - conforming. If a home is built that is legal today and meets all the codes and regulations, does the home become legally nonconforming once the LCP is passed? The regulations for nonconforming only allow you to improve your home by 25% and you can only modify even your interiors by 50 %. How do these percentages relate when homes fall into disrepair? Ms. Temple answered it depends on whether the LCP implementation plan changes the regulations under which the original building was built. It is not automatic, it may or may not. The existing nonconforming provisions relate those percentages to alteration to the structural members of the building and not to cosmetic renovation and update. Unless those interior renovations involved the structural members of the building, you can do 25% of those members by right, 50% with a Modification Permit and up to 75% in any twelve year period with a Use Permit. Anything above 75% is not allowed. Mr. Alford added that even if Irvine Terrace was to fall outside the categorical exclusion and be subject to a Coastal Development Permit, that does not mean they are necessarily nonconforming. There would have to be a standard that they were built to that has changed to be more restrictive that would make them nonconforming and then the nonconforming provisions would apply. Commissioner Selich noted we are not doing any development regulations now. There is a second phase that is the implementation plan and at that point, you may or may not become non - conforming depending on what regulations are adopted as part of that. Your question is a good one, but is premature and should come at the second step of this process. Page 16 of 34 file: //F: \Users \PLMShared\Planning Commission\PC Minutes \Prior Years\2004 \0422.htm 6/26/2008 Planning Commission Minutes 04/22/2004 Page 17 of 34 Page 12 Commissioner Tucker, noting the comment from Mariner's Mile Association wanting a statement incorporating 'As shown in areas such as McFadden Square and Cannery Village, the incorporation of residential uses into these areas adds vitality and the synergy of mixed uses, while providing improved public access to the bay front,' this language is not appropriate for the document. Should we, as a policy matter, have some indication when a mix of uses would allow a coastal dependent use to occur on a property that would otherwise be infeasible? Would that be something to consider? The coastal dependent uses are a character that is slipping away in the City and there may be some policy language for this one exception. Staff noted this is a worthy policy discussion. The City Council and the LCP committee decided for this exercise of the LCP not to make any policy changes as it relates to land uses because of a serious concern that the LCP process would preempt the General Plan update. That very discussion will be part of the discussion on the geographic area of Mariner's Mile. Should the conclusion be to support such policy concepts in the General Plan, then we have already acknowledge we will go back and amend the LCP to reflect all of those changes, including land use changes. Commissioner Selich noted that the Committee discussed this quite thoroughly, and recommended that staffs recommendation be supported. Page_1.9 Commissioner Tucker noted the California Coastal Trails comes up several times, some people want it and some don't. Following a brief discussion it was decided to support staffs response. Page 25 Commissioner Tucker noted the suggestion of wording for 3.1.1- 14, '.... for development and implement a long range plan for public trails and walkways to access all appropriate commercial areas of the harbor....' The suggested verbiage change is to '.....all appropriate visitor - serving areas of the harbor.' There are still working areas of the harbor and there seem to be a natural conflict between these two areas. Mr. Alford noted the wording in policy 3.1.1 -19 on page 3.9, was written specifically to recognize that there might need to be some detours around some of the operations of the harbor. file : //F: \Users\PLN\Shared \Planning Commission\PC Minutes \Prior Years\2004 \0422.htm 6/26/2008 Planning Commission Minutes 04/22/2004 Page 26 Mr. Alford stated that all these policies apply and there are provisions for public safety, protection for the coastal dependent and support facilities that surround the harbor. When we are reviewing the application of these policies on a project by project basis there has to be enough latitude in here to make sense if a particular segment should not be provided, or take an alternate form, or detour, then we can do so. The overall goal is consistent with the Coastal Act to provide lateral access along the waterfront. In these commercial areas, we have been requiring it as part of the application approvals and there may be a potential to connect them. The overall goal is the same, to provide lateral access on the shore. Page 29 Commissioner Cole noted the comments of the Cameo Shores Community Association regarding Policy 3.1.5 -2, the 'potential to inhibit' is ill defined. If they ever wanted to gate their communities or even build a guard gate that might look like a gated community in the future, they want to maintain that option. The language now is prohibitive. He suggested that the comment related to the words, the 'potential to inhibit public access' be changed to 'would' inhibit public access. The Association feels there will be a potential situation in the future, even though this has to go through the City for approval, of conversion of streets from public to private. The language now would prohibit it from even getting to that point to the City. I would like to suggest that change. The other language they suggested was to at, least acknowledge the current status of certain communities that do not currently have 'public access'. Can we include the definition of 'public access'. Mr. Alford noted that the main focus of the comment from the community association was on the physical public access along the shore line. We tried to indicate in our response that the Coastal Commission has a broader term of 'public access' which would include removing public parking from public streets and blocking views from public roads to coastal views. We would have to do some type of analysis to indicate that there is no potential for public access to be denied by barring the public from those public streets within the community. This whole section was prepared because the Coastal Commission had indicated in the comments on the current LUP that we needed to do something to address the issue of private and gated communities. Our attempt was to merely identify all those areas and show even though they are gated or otherwise private, that their impacts to overall public access is very limited and that the nature of development that would occur in these areas is not such that you could have a Page 18 of 34 file: //F: \Users \PLN\Shared \Planning Commission\PC Minutes \Prior Years \2004 \0422.htm 6/26/2008 Planning Commission Minutes 04/22/2004 Page 19 of 34 development provide additional access. If we change the tone of this section to leave the possibility of expanding these private areas, I think we could run into some potential problems. It is more of a matter of how we address the current issue of the ones that exist and they should not be expanded to provide additional private communities in the coastal zone for reasons stated. Commissioner Selich noted he supports the original wording the Cameo Shores Community Association proposed. I think this document does not give adequate protection to both Cameo Shores and Shorecliff associations and I think something like this would go a long way. There is no public access in there and there is no reason for the public to go in there. I do not agree with staff on this. Commissioner Tucker asked what authority the Coastal Commission has to define on- street parking and views as public access? What about night time, when you can't see anything? Mr. Alford noted that the Coastal Commission interprets the Coastal Act just as the City Council, Planning Commission and staff do of their policies. There are definite references about providing public parking in the coastal zone and the removal of public parking even as on- street parking has long been considered to impact coastal access. I have seen reports written from the Coastal Commission that dealt with issues of beach curfew. They consider even night time curfews on beaches as denying public access. Commissioner Tucker continued by stating he supports Commissioners Cole and Selich on this item. Commissioner Kiser stated that if there is any way to modify the language he would like to see that worked with and supports the comments of Commissioners Cole and Selich. Commissioners Toerge and Eaton noted their support of the association language. Commissioner Cole stated he likes the suggestion of changing the language to 'would' in the first portion and then maybe staff can come up with language that meets the intent of trying to acknowledge the existing status of the communities that currently do not have access and might not prohibit the ability in the future for a gated community. Ms. Temple stated staff would come up with the wording and asked if the Commission wanted to review the language before it went to Council? file : //F: \Users\PLN\Shared \Planning Commission\PC Minutes \Prior Years\2004 \0422.htm 6/26/2008 Planning Commission Minutes 04/22/2004 The Commission discussed that if there was another meeting of the LCP, they would like to review this language. Commissioner Kiser noted that the way the community associatioi worded it in the last part of the paragraph was that 'only h communities where such access exists as of the day of th( adoption of the policy,' to likely not prohibit public access b, privatizing or gating the community. Something to that affect s( that there would not be a strict policy in the words like exempt. Mr. Alford stated that we responded with this section because th( Coastal Commission initial comments were that they wanted t( prohibit all private and gated communities, we did try to leave th( door open with these policies. They would have preferre( language to outright prohibit these communities. Commissioner Cole noted that even though the letter from Came( Shores reflects policy 3.1.5 -2 it actually should also be similar h 3.1.1.5 -1 which also talks about structures such as gates gatehouses and barriers. Mr. Bettencourt, speaking for the Banning Ranch owners, state( what troubled them was the language that outright prohibited nev private streets based on a substantial evidence test tha prescriptive rights exist. It does not say adjudicated rights to publi( resource or established private rights. Look at the enormous power you would give to someone claiming prescriptive rights to ii effect shut down the entire entitlement process without having am access rights adjudicated. Commissioner Kiser stated that he had raised this same issue an( would like to not see it in the policy. However, we were advise( that the Coastal Act gives the local body the right to determine i there are prescriptive rights. Commissioner Tucker noted the reality of how this clause wouk work is if staff found that there was substantial prescriptive right: and the property owner did not agree then the property owne would sue the person who claimed there were prescriptive rights t( quiet title to those claimed prescriptive rights. If the person wh( brought the suit won, then they come back to the city and say tha evidence is gone. I tend to think that language would probably stay in there. There is a way to go over the head of the agency. Ms. Clauson stated that this may be thought by the Coasta Commission to apply to prescriptive rights not established a: between private property owners. There is an established line o cases that say that the public can get prescriptive rights of access over private property for recreational purposes on beaches, riven Page 20 of 34 file : //F:lUsers\PLNIShared\Planning Commission\PC Minutes\Prior Years1200410422.htm 6/26/2008 Planning Commission Minutes 04/22/2004 or any other places for recreational uses. This is not something that needs to be adjudicated. Page 34 Jan Vandersloot, noted the following: The issues of fragmentation and isolation are issues that do not apply to Section 30240 of the Coastal Act. If it was a habitat area it does not have anything to do with whether it was isolated or fragmented. . I don't think this should apply. Even degraded habitats are protected by the Coastal Act as confirmed by the Bolsa Chica Decision. Commissioner Tucker noted that staffs proposed language deals with this. The speaker agreed. Page 35 Jan Vandersloot further noted: This has to do with the fact the taking of private property is something that is protected by the Constitution and does not have to be stated in the LCP. This is supposed to conform with the Coastal Act Section 30240 that limits the uses of what you can do with ESHAs. The Coastal Act says nothing about the taking. Commissioner Tucker noted that if we eliminate that phrase, then assuming the implementation plan basically came out and said we will limit uses in ESHAs to only those uses that are dependent on such resources, if that resulted in a taking then we would have a plan that required us to take. Shouldn't that be a decision that is made later that would be of value to the public? What we are trying to do is not have a situation where we start down the path of, the policy says to limit the uses and therefore the implementation must follow the policy. Then we made a decision that has that effect without ever having the opportunity to say do we really want to do this. Mr. Alford noted that there are provisions in the Coastal Act for protection of property from a taking. A provision like this could be put on every policy because there is a possibility that they could effect property and result in a taking. However, we used it sparingly on those few policies that either limit use or development. There isn't anything in the Code of Regulations and Page 21 of 34 file : //F: \Users\PLN\Shared \Planning Commission\PC Minutes \Prior Years \2004 \0422.htm 6/26/2008 Planning Commission Minutes 04/22/2004 the Coastal Act relating to the limits of land uses that result in taking but then again those portions were written before a number of Supreme Court decisions related to the issue of taking. We feel comfortable adding this because we have seen similar language on these issues in other LCP's that the Coastal Commission has certified. Page 37 Commissioner Eaton questioned the criteria for what was listed and what was not listed. Mr. Alford answered that there seems to be some confusion between the ESHAs and the environmental study areas. The draft LUP has these study areas that are areas that were identified in the current Land Use Plan and these are large geographic areas that may have environmental sensitive habitats on all of them or a portion of them. We felt they were worth studying and to identify and to indicate that there are potential ESHAs in these areas and they should be looked at accordingly. The specific ones that were requested were areas that were smaller than the ones in the Land Use Plan and simply because we don't list them as a study area, it does not mean that if there are any coastal resources such as wetlands and sensitive habitats that they are not going to be provided protections under this LCP. We don't have to study every single area simply because it may or may not have a wetland or an ESHA. Dr. Vandersloot stated he would add Banning Ranch to the four areas mentioned in the document. Commissioner Tucker noted it would be fair to have something that makes it clear that this doesn't preclude other areas from being study areas. Mr. Alford noted that study areas have no particular status, they are just areas we felt were large and complex enough that they needed some type of inventory and discussion. All the other polices we have related to ESHA, wetlands and other coast resources would apply to any development proposed in these areas. Ms. Temple noted that the more you add smaller and smaller areas the more it takes on the look and feel of a comprehensive list and what we don't want to do is lead someone to conclude that if they are not on this list that these policies do not apply. Page 39 Page 22 of 34 file : //F: \Users\PLN\Shared\Planning Commission\PC Minutes\Prior Years \2004 \0422.htm 6/26/2008 Planning Commission Minutes 04/22/2004 Gus Chabre stated he has a problem including eel grass in the section that involves environmental study areas. We have enough problems with eel grass now. The environmental study areas tend to take on special interest and concern. If we are going to be able to work with eel grass that is in the lower bay I suggest that we strike the last paragraph. Jan Vandersloot, stated that eel grass ought to be an environmental study area as it acts as a habitat for invertebrate and for threatened bird species as well. Page 41 Commissioner Eaton asked, noting the last item on the page, was the last sentence in the Errata removed as per the consultant? Mr. Alford answered that the revision was to remove the sentence and the comment on the next page was saying that the word 'critical' could be removed and that would also be consistent with what the City's biologist said. It could go either way. Commissioner Selich supported removing the last sentence on page 4 -36, Section 4.1.4. Following a brief discussion it was determined that the last sentence be removed. Page 43 David Moore talked about the issue of eelgrass. He discussed the issues of the dredging of wetland estuaries be permitted to maintain any existing or previously dredged channel and vessel berthing and mooring areas. The issue is not protecting eelgrass, the issue is using eelgrass as an anti - development issue to prevent maintaining existing waterways, berthing areas and estuaries. He happens to be a victim of that because eelgrass is in front of his dock. He has a permit from the City to put an 85 foot boat at that dock but in low tide has only 1 foot of water. It has been filled in by three major dredging operations that have taken place in Back Bay by the Irvine Corporation and neighbors on either side. He is being held accountable for eelgrass in the bay and that is clearly a taking. Property with eelgrass has dropped in value dramatically. The way to remove eelgrass from preventing dredging is to take the whole section 4.1.4 up to 4.1.5 and related implementation out. Reference to eelgrass needs to be removed. Commissioner Selich noted his agreement on the eelgrass situation. However, there was a committee that included three Planning Commissioners and three City Councilmembers who decided what the approach would be in the LCP. In all of the eelgrass issues, he supports the approach taken by the Committee Page 23 of 34 fil e : //F: \Users\PLN\Shared\Planning Commission\PC Minutes \Prior Years \2004 \0422.htm 6/26/2008 Planning Commission Minutes 04/22/2004 and staff. Page 44 Catherine Moore asked for clarification. Mr. Afford answered that all the provisions provided for dredging activities allowed under the Coastal Act are provided in the appropriate sections dealing with wetlands and deep water areas. The various resource agencies have taken the position that the impacts to eelgrass has to be mitigated under the Southern California Eelgrass Mitigation Policy. It is a hindrance and a burden on people who want to dredge the areas around their properties. What we have attempted to do in this section is recommend the framework for an approach that goes beyond the Southern California Eelgrass Mitigation Policy and propose a new method based on a base line. We can not do it unilaterally, because even if we put it in this plan and it was approved by The Coastal Commission, we would still have the other agencies to deal with it. We are recognizing that we have to have a broad based, comprehensive strategy to deal with at both the state and federal levels and we are attempting to set up that framework in this document as policy rather than just going with the status quo. We recognize the shortcomings of the existing policy and we have that clear in the narrative and are proposing an approach based on the direction we received from the City Council through the LCP certification committee. Chairperson McDaniel noted that the LCP doesn't necessarily cover the ability to dredge for eelgrass because the eelgrass mitigation has control over that. This document does not. Ms. Temple noted that the City is working with those agencies to devise improvements to that mitigation program that would resolve some of these issues. Ms. Moore stated that it is misleading the way it is written. I think it will be hard to explain to the citizens of Newport Beach the places where they are currently able to dredge or have a boat, they are no longer going to be able to do it. Mr. Alford noted that this stems from Section 30233 of the Coastal Act which outlines how you deal with projects that involve diking, filling, and dredging of open coastal waters. It states clearly that you have to go with the less environmentally damaging alternative and, where feasible, have mitigation measures and minimize adverse environmental impacts. The Coastal Commission and other resource agencies have seen the impacts to eelgrass as being a significant impact. The caveat for environmental protection Page 24 of 34 file: //F: \Users\PLN\Shared \Planning Commission\PC Minutes\Prior Years \2004 \0422.htm 6/26/2008 Planning Commission Minutes 04/22/2004 that is provided for in the maintenance dredging has put a limit on dredging projects. The eelgrass mitigation policy is the law of the land that we abide by. This policy document recognizes that there are extreme problems with that policy and offers up a policy framework as a solution. John Corrough clarified that it has always been a federal issue, federal requirements, federal permits, etc. It is not the City that decides and it is not the Coastal Commission that decides, its the federal agencies like National Marine Fisheries where this policy originated at a federal level that have always determined the policies and procedures. Everyone else follows those federal activities. If the Moores had applied for a permit 4 -5 years ago and dredged, they would have been applying external to the issues that are becoming confused and muddled in the LCP in the same way now as they would have applied five years ago. If you read the response section the first mitigation eelgrass beds are being planted next month. Dr. Vandersloot stated that the mitigation areas of eel planting are in areas that it is not in now. The mitigation efforts have to work first. Page 45 Dr. Vandersloot noted that the Coastal Commission in the past has allowed just one of the criteria for wetland to be existing to define a wetland. He thinks it has to be consistent with the past Coastal Commission actions. Page 47 Commissioner Tucker commented on policy 4.2.4 -1: cooperating with the US Environmental Protection Agency and the US Army Corps of Engineers to secure LA -3 Ocean Dredged Material Disposal Site as a permanently designated disposal site. Wouldn't we also cooperate if there was another suitable or feasible site that is identified. Why are we limited to just this site? Mr. Alford answered part of it is the location. If it is a more distant site, it would increase the costs of disposal dramatically. We felt this site is appropriate and important in order to accomplish the restoration projects in the Upper Newport Bay. Commissioner Tucker asked if that site became unavailable, what would we do? What if we added 'or if feasible, another suitable site'? Commissioner Kiser noted that what is being discussed is the Page 25 of 34 file : //F: \Users\PLN\Shared \Planning Commission\PC Minutes \Prior Years\2004 \0422.htm 6/26/2008 Planning Commission Minutes 04/22/2004 default unless something else is found. He supports response. Mr. Vandersloot stated we should not memorialize LA -3 because it is a temporary site that has been used. We don't have the money to barge the dredge spoils out to sea. John Corrough noted that over a period of a year and a half the various activities were underway with respect to our opportunity sites for the disposal of dredge materials. He outlined that LA -2 is the alternative and provided tables for analysis of differential costs of barging from this region. The Harbor Commission decided that the economics and science support LA -3 as the preferred site as has been described. All the agencies involved recognize that it needs to be codified as a long -term site, that's why the EIR/EIS is looking at it now. LA -2 is a fall back site. Our priority is very low and costs are exceedingly high. That is why you have LA -3 in front of you. Ms. Temple asked if the Commission is suggesting changes to LA- 3 policy or is it satisfactory. Chairperson McDaniel answered no change. Page 48 Gus Chabre asked why eelgrass is incorporated in this policy if it is such a recognizable problem? Why not strike all reference to it? Mr. Alford noted that this is the current policy we have to abide by, particularly by the federal agencies. We have to reflect this in the policy document at this time because that is what we have to operate under. Just because you disagree with a policy that might be imposed from outside the community, ignoring it does not mean it goes away. This is a policy document and it is used to guide the decisions in reviewing projects. We think it is important to have it recognize the current regulatory framework. This document is not etched in stone, it can be amended as situations change. As we indicated, the Coastal Commission would like to review LCP's every five years. At this point in time this policy reflects the current situation we have to deal with. We are proposing something that would replace that eelgrass policy in the future. Continuing, Mr. Alford stated that these terms were agreed to by all the resource agencies that participated in the project and it was fought hard for by the City. The recommendation from the Harbor Commission in particular is to keep this in the document. _Page 51 Page 26 of 34 file : //F:1Users\PLN\SharedlPlanning Commission\PC Minutes\Prior Years1200410422.htm 6/26/2008 Planning Commission Minutes 04/22/2004 Commissioner Tucker noted that the comments heard earlier on the Banning Ranch were good ones. However, if we are going to defer this into another document, I am not going to belabor their points. There were several issues that were raised; certainly on water quality should be included and should be to the maximum extent practicable and modify a lot of those requirements. I would like to see how the language on Banning Ranch is going to work when it comes back in terms of making it clear that all these policies that are being adopted might not necessarily apply to Banning Ranch. Mr. Bettencourt noted that the property owners tried to draw on the millions of dollars worth of research and planning studies they have done on the property some that has been before public agencies, some that staff has seen, and show in this instance the sort of immutable law of unintended consequences by applying some of these polices and what it could have that would not meet a number of planning objectives here. One that is coming up recommended by the Coastal Commission staff is the water discharge regime should achieve a near natural equilibrium state. Doesn't that sound delightful? Banning Ranch receives 138 acres of drainage from east side Costa Mesa that drains otherwise unregulated in the Semeniuk Slough. Is that the near equilibrium state you want to maintain? The bluffs in the area are melting, because they are unprotected, into the Semeniuk Slough and onto Coast Highway. So, when you have policies that say, shall not be disturbed, you make the achievement of a better environmental outcome through improvement, remediation and mitigation more difficult to achieve. I think we need to propose some language that at least gives the property owner the opportunity to make their case on a comprehensive basis at some point in time without being tormented by some of the policies. At Commission inquiry, he stated that a comprehensive LCP covering both the City and County properties and an EIR was developed. The fact that the County of Orange was the lead agency, city staff was also involved with the documents. Ms. Temple noted that the LCP developed by the Banning Ranch developers could become a segment of the Newport Beach LCP if that is the way the City and property owner want to do it. Commissioner Kiser noted his concern of the policies overlapping. Commissioner Selich noted that there were many meetings on the LCP and we ended up deleting this area due to the complexities. When the time comes we can deal with ft. Page 52 Page 27 of 34 file: //F: \Users\PLN\Shared\Planning Commission\PC Minutes \Prior Years \2004 \0422.htm 6/26/2008 Planning Commission Minutes 04/22/2004 Commissioner Tucker reiterated that there are a couple of places on 4 -61 where the maximum extent possible (mep) applies. It applies in 4.3.2 -11 and -12. He asked staff to take a look at adding those so we have that concept. It is typical for the water quality stuff, that is generally the standard. Mr. Alford answered he would do so as directed by Commission. Page 53 Jessica Joiner noted her concern with regards to policy 4.4.1 -3 and -5 that it is bringing a huge amount of property into the Coastal Commission purview. Having worked with the Commission, they have typically demanded a setback of 20 feet on coastal bluffs. Perhaps there should be a distinction between altered and unaltered. Page 55 Fleetwood Joiner noted we are an urban community. I disagree that the Coastal Commission has the right to really control our City. We have property owners that need to be protected. There are areas that have existing bulkheads and harbors and things that have been built creating our City that need to be protected as well. As a community we need to recognize the differences. I would like the last sentence of the second paragraph on 4 -70 section 4.4.3'in areas where the coastal bluff has been altered the property owner and City shall strive to minimize further alteration to the bluff face. However, this is not intended to prohibit the property owner's right to improve or rebuild said property per existing codes in the same manner as the neighbor or in that neighborhood.' Commissioner Cole noted he is sympathetic and asked for staffs response. Mr. Alford noted that this Commission has had to deal with the issue of coastal bluffs development. There are polices in the current LCP and the Land Use Element of the General Plan that call for protection of these land forms. The problem is that there really has not been any mechanism to implement these policies. You have not been faced with those issues often because the Coastal Commission reviews Coastal Development Permits. The language we have here would create a situation where it would make any policy pertaining to the protection of this land form moot. Because someone else severely altered the land form in the past means that same could be done on the property might be subject to the policy under review. We have these policies on the books now, are we going to continue to implement them when we have projects that are before you, something this broad and sweeping Page 28 of 34 file: //F: \Users \PLN\Shared \Planning Commission\PC Minutes \Prior Years \2004 \0422.htm 6/26/2008 Planning Commission Minutes 04/22/2004 would basically change the policy. Commissioner Cole noted the sentence in question, '...in areas where the coastal bluff has been altered, development on the bluff face and bluff top should be controlled to minimize further alteration....' Is it your opinion that if we left that language in that if a property owner wanted to alter or remodel per the last speaker in the same format as the adjoining property owner has done, would this prohibit them from doing that? Mr. Alford answered that the proposed revision is in the narrative and therefore would not have the weight of a policy. You would create a conflict. The policy would generally override anything that is not clear in the narrative. The point is, what if you had a situation where the adjacent property had done something that was clearly inconsistent with the policies, not with this LCP but with the current one or what is in the General Plan? Again, by placing this in our policy, you are altering the effect of the entire policy because you are now saying that it doesn't apply to a property if the one adjacent to it was altered. At some point you have to decide is this a policy that you want to continue to work with? If you have a serious problem, you don't think these land forms need to be protected, then you should change the policy, not put a loophole that someone could use to escape it because then you run into a real danger of not applying the policy consistently and not providing people equal protection under the law. Commissioner Kiser noted his agreement that this is in the narrative and it would open up a lot of problems similar to the ones already seen by the Commission. We need to look at the specific policy 4.4.3 -5 for example and whether you like it or don't, we need to deal with the issues in a more specific way like the details in our policy rather than a broad statement in the narrative. Jessica Joiner proposed that the City deal with these issues through the codes and setbacks and maintain the power structure and control within the City rather than delegating it to the Coastal Commission, which is in Sacramento. Commissioner Tucker noted that these definitions get dealt with in our Code at least in the implementation plan under the LCP. Mr. Alford noted that the more you try to define something, you actually run into situations that are counter- productive. There has to be some room for judgment. These projects will be reviewed on a case by case basis and it will be up to the Planning Commission through review of Coastal Development Permits on such properties to determine whether this is an area where the bluff is a land form that is more or less in a natural form and has not been significantly Page 29 of 34 file: //F: \Users \PLN\Shared\Planning Cornmission\PC Minutes\Prior Years \2004 \0422.htm 6/26/2008 Planning Commission Minutes 04/22/2004 altered. Then of course it should be protected under the policies in this document. If it is an area where there has been alteration such as landscaping, development and /or grading have virtually obliterated those bluffs that those areas have to be treated differently and that more extensive development could be permitted. Page 66 Commissioner Toerge noted he agrees with the comments relative to the LCP meetings. There will be more meetings when we get to the implementation plan and to assist the public in focusing their comments in the early part of the process that by establishing dates on a consistent meeting schedule would help, even if we have to cancel a meeting on occasion for whatever reason. Jessica Jointer noted the responsibility of both staff and Commission to protect the property rights and protect the citizens investments. She thanked staff and Commission for all their efforts Jan Vandersloot noted: . The purpose of the LCP is to be consistent with the Coastal Act. The Coastal Act was established by the State legislature under a voter approved initiative in 1972. . These policies are to protect the coast, otherwise the whole coast would be built up and the public would be shut out. . There needs to be consistency with the laws and regulations that deal with land uses and property rights. . You need to be thinking how this is consistent and abiding with the Coastal Act. . We need to preserve the resources of the coast that are still there. Fleetwood Joiner thanked the Commission and staff for their work. He stated that the bluff in Irvine Terrace is not a natural bluff. When he was digging out some of his property he ran into bed springs and seaweed. Homeowners have helped to re- vegetate the slope. If you dig down, it takes caissons 35 feet deep to hit natural grade, all of that Irvine Terrace area was built by the Irvine Company for members of the Company. It is not a natural slope, there are pieces that stick out that are formations that have been cut to build Bayside Drive. Public comment was closed. Page 30 of 34 file: //F: \Users \PLN\Shared \Planning Commission\PC Minutes \Prior Years\2004 \0422.htm 6/26/2008 Planning Commission Minutes 04/22/2004 Commissioner Tucker noted the following: . There is a great deal of effort made to do things right and to preserve the beautiful area that we all have. . We all live here and have a goal for the community to be the best possible place to live. Commissioner Eaton noted his preference would be to vote on this tonight and let staff put together the areas that were unresolved. If we continue this it would be for only the purpose of reviewing those things where we asked staff to make changes and limit the public hearing to those things where we asked staff to make changes. Otherwise, my concern is there would be another three hours of testimony. Commissioner Selich agreed with the previous comments. The biggest thing we wanted to see is the private community language and I think staff can take care of that. I would just as soon vote on this tonight. Straw vote to vote on the LCP tonight: Commissioners Selich, Eaton, Cole, McDaniel Staff verified that there would be revised language on private communities. Motion was made by Commissioner Eaton to recommend approval of the LCP with all the corrections and Errata as proposed plus the additional ones that were provided tonight. Chairperson McDaniel thanked Mr. Alford for all his work on this item. Ayes: Eaton, Cole, Toerge, McDaniel, Selich, Kiser and Tucker Noes: Absent: None Abstain: None None SUBJECT: City of Newport Beach (PA2004 -028) Revisions to Appeal and Call for Review Procedures An amendment to Title 20 of the Municipal Code to review Page 31 of 34 ITEM NO. 5 PA2004 -028 Recommended for Approval file: //F: \Users \PLN\Shared \Planning Commission\PC Minutes \Prior Years\2004 \0422.htm 6/26/2008 Planning Commission Minutes 04/22/2004 procedures for appeals and calls for review. Chairperson McDaniel noted the following: . If the City Council wants to do this, that is fine. • The Planning Commission should be separate from this action. • Zoning issues should come to us as quickly as possible and anyone who wants to bring them up, it should only require one person to do that. . I talked to the maker of the motion at City Council and he is okay with this procedure. Ms. Temple noted that if the Commission wishes to give this direction to staff then they will proceed with it. Making that part of the motion we will amend the resolution and forward this item to City Council. Commissioner Selich noted his support of the Chairman's views. Commissioner Tucker supports the comments as well. He added that the way it is written now, it appears you actually have to be at a meeting in order to be a participant in a call up so if you were a person who wanted to call it up and was going to be missing the meeting then you could not be a person to call it up. I also don't have the phobia about the Brown Act. Mechanically one of the ways to get around that is to limit the time frame to the same number of days and if it is not called up at a meeting, leave the language where you could call it up at a meeting, but anybody on the Council could send a letter to staff saying they wanted to call this item up. Staff would then copy all the other Councilmembers and if there was a mirroring further filing by one of the other Councilmembers within the timeframe then it would be called up. That way you do not have to have the formality of going on a meeting. You are not really deciding anything, you are only saying you want to review it. If the written notice merely says I would like to call this one up for review and another councilmember within the timeframe concurs, then it is done. The way it is set up it isn't going to work because you have to be at a meeting to call it up. Commissioner Eaton noted he would not like to see the appeal period go to 21 days. Ms. Clauson noted the concern is the tendency for one member to go around and get another member to call it up. Commissioner Tucker's idea is a good one. The only way that might be a problem Page 32 of 34 file: //F: \Users \PLN\Shared\Planning Commission\PC Minutes \Prior Years \2004 \0422.htm 6/26/2008 Planning Commission Minutes 04/22/2004 is if one councilmember determined on the last day they wanted to call it up there might not be enough time to notice all the others that they had called it up to see if anybody else agreed. It would have to be just an independent thing. If the Council knew that two people need to call it up and if two came in independently to request it within the appeal period then you would have a call up. Following a brief discussion it was proposed to send this along to Council for their action that would not change the Planning Commission routine. Motion was made by Chairperson McDaniel to recommend the adoption of Code Amendment No. 2004 -002 (PA2004 -028) whereby we leave the procedures of the Planning Commission as is and the revision of Council appeals to 2 members while retaining the 14 day appeal period. Ms. Clauson noted that it is an appeal of a decision. Rather than give it two names we decided to call it an appeal. If you have a court reviewing the various levels of appeal through to the City Council it is better to call it appeal. That is why we have decided to eliminate the concept of call for review. Commissioner Kiser noted that the motion to leave our procedures the way it is, the terminology will be changed from call up to appeal. Nevertheless, the procedure for any one Planning Commissioner and the timeframe for the appeal would remain the same. Ayes: Eaton, Cole, Toerge, McDaniel, Selich, Kiser and Tucker Noes: Absent: None Abstain: None None x x x ADDITIONAL BUSINESS: a. City Council Follow -up - Ms. Temple noted that the Council heard the call for review for the Zinc Cafe and market amendment and they sustained the decision of the Planning Commission; they considered their policy manual update for 2004 and within those policy changes were K1 which is the procedures for the adoption and amendment of General Plan Amendments - eliminated the process of initiation for property owner or developer requested amendments, and the policy Page 33 of 34 ADDITIONAL BUSINESS file: //F: \Users \PLN\Shared \Planning Commission\PC Minutes \Prior Years\2004 \0422.htm 6/26/2008 Planning Commission Minutes 04/22/2004 Page 34 of 34 for implementing the Environmental Quality Act guidelines regarding the general rule exemption; the City initiated an amendment to Districting Map No. 25 to establish a 10 foot setback on Orange Avenue; the joint session with the Planning Commission occurred on the General Plan Update. 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 - no meeting. d. Report from Planning Commission's representative to the Local Coastal Plan Update Committee - remove from listing. e. Matters which a Planning Commissioner would like staff to report on at a subsequent meeting - none. f. Matters which a Planning Commissioner may wish to place on a future agenda for action and staff report - none. g. Status Reports on Planning Commission requests - two items presented were the Planner's Institute power point presentation on the Religious Land Use and Institutionalized Persons Act and a copy of the staff report distributed to City Council for the study session on grade and height limits that will also be heard at the night meeting for an amendment initiation. h. Project status - Marinapark EIR will be distributed on Monday. i. Requests for excused absences - none. ADJOURNMENT: 10:20 p.m. I ADJOURNMENT MICHAEL TOERGE, SECRETARY CITY OF NEWPORT BEACH PLANNING COMMISSION file: //F: \Users\PLN\Shared \Planning Commission \PC Minutes \Prior Years\2004 \0422.htm 6/26/2008