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HomeMy WebLinkAbout04/23/1998• n I� Planning Commission Minutes April 23, 1998 Regular Meeting - 7:00 p.m. ROLL CALL CITY OF NEWPORT BEACH Commissioners Fuller, Ridgeway, Selich, Kronzley, Gifford, Adams and Ashley — all present STAFF PRESENT: Sharon Z. Wood, Assistant City Manager Robin Clauson, Assistant City Attorney Patrick Alford, Senior Planner Marc Myers, Associate Planner Rich Edmonston, Transportation and Development Services Manager Ginger Varin, Planning Commission Executive Secretary Minutes of April 9. 1998: Motion was made by Commissioner Ashley and voted on to approve, as amended, the April 9, 1998 Planning Commission Minutes. Ayes: Fuller, Selich, Kranzley, Gifford, Adams and Ashley Noes: None Absent: Ridgeway, Abstain: None Public Comments: none Posting of the Agenda The Planning Commission Agenda was posted on Friday, April 17,1998 outside of City Hall. Minutes Approved Public Comments Posting of the Agenda • City of Newport Beach Planning Commission Minutes April 23, 1998 SUBJECT: Street Name Changes - Boni • Tentative Tract No. 15409 Request for approval of revised street names in Bonita Canyon. Chairperson Kranzley asked if these types of issues could be a Planning Director item for approval. Discussion continued on the history of these issues. Public Comment was opened and closed. Motion was made by CommissionerAdams for approval of street names in Bonita Canyon. Without objection and by show of hands, Motion Passed. SUBJECT: Shown Helda of Helda Enterprises 738 Tustin Avenue • Tentative Tract Map No. 15607 • • Modification Permit No. 4688 Request to subdivide an existing lot into a single parcel of land for condominium purposes in conjunction with the development of a six unit residential project on a property located in the MFR (2178) District. The application includes a Modification to permit a required guest parking space to be located in the front yard setback area where the parking space is not on a driveway in front of a garage, as the Code requires. Chapter 20 of the Municipal Code permits parking in front yards on driveways in front of a garage that is set back at least 19 feet from the front property line. Commissioner Selich asked if the buildings could be adjusted to have the rear yard setback shortened up and the parking space in the front yard moved between the two buildings that do not have a parking space. Marc Myers noted that it would require a modification to encroach into the rear yard setback. Public comment was opened. Shawn Held, 27 Inverness - in response to Commission inquiry, stated he understands and agrees to the findings and conditions of TTM No. 15607 and Mod. No. 4699. He noted that changing the parking space would require the building spaces to be widened to allow outdoor living and • force the building to move back. In moving the building back, the 2 INDEX Item No. 1 TTM No. 15409 Approved Item No. 2 TTM No. 15607 Modification Permit No. 4688 Approved City of Newport Beach • Planning Commission Minutes April 23, 1998 garage of that first building in the rear would have difficulty with the back guest parking by inhibiting the turn around space. Public Comment was closed. Motion was made by Chairperson Ridgeway for approval of Tentative Tract Map No. 15607 and Modification No. 4688 subject to the findings and conditions in Exhibit A. Without objection and by show of hands, Motion Passed. Tentative Tract Mao No. 15607 Findings: The Land Use Element of the General Plan designates the site for "Multi- Family Residential" use and the proposed six unit residential condominium project is consistent with this designation and the guest parking spaces are a requirementof the primary use. 2. The project has been determined to be Categorically Exempt • under Class 3 (New Construction or Conversion of Small Structures). 3. The design of the proposed improvements will not conflictwith any easements acquired by the public at large for access through or use of property within the proposed development. 4. The approval of Tentative Tract Map No. 15607 is in conformity with the standards and requirements of the Subdivision Map Act, Title 19 of the Newport Beach Municipal Code, and all ordinances of the City, all applicable general or specific plans of the City for the following reasons: • The proposed map is consistentwith the General Plan since the site is designated as Multi - Family residential. • The proposed map meets all of the design and improvement requirements contained in the zoning code including minimum lot size, density requirements, parking requirements, floor area ratios, open space and landscaping. • The proposed site is physically suitable for the proposed development since the site is flat and surrounded by additional multi -fa mily residential developments. • The proposed site is suitable for the proposed density of development since the proposal is for 6 units where 8 are permitted. • The design of the development will not have any significant • environmental impacts 3 INDEX City of Newport Beach • Planning Commission Minutes April 23, 1998 Conditions: That development shall be in substantial conformance with the approved site plan, floor plan and elevations, except as noted below. 2. That all improvements shall be constructed as required by Ordinance and the Public Works Department. 3. That a final map shall be recorded. The final map shall be prepared so that the Bearings relate to the State Plane Coordinate System. The final map shall be prepared on the California coordinate system (NAD83) and prior to recordation of the final map, the surveyor /engineer preparing the map shall submit to the County Surveyor a digital - graphic file of said map in a manner described in Section 7 -9 -330 and 7 -9 -337 of the Orange County Subdivision Code and Orange County Subdivision Manual, Sub - article 18. 4. That prior to recordation of the final map, the surveyor /engineer preparing the map shall tie the boundary of the map into the • Horizontal Control System established by the County Surveyor in a manner described in Sections 7 -9 -330 and 7 -9 -337 of the Orange County Subdivision Code and Orange County Subdivision Manual, Sub - article 18. 5. Monuments (one inch iron pipe with tag) shall be set on each lot corner unless otherwise approved by the Subdivision Engineer. Monuments shall be protected in place if installed prior to completion of the construction project. 6. That a standard subdivision agreement and accompanying surety shall be provided in order to guarantee satisfactory completion of the public improvements if it is desired to record a tract map or obtain a building permit prior to completion of the public improvements. Easements for public emergency and security ingress, egress and public utility purposes shall be on the private drive to the City if they do not currently exist. Any existing easements for ingress and egress must be submitted to the Public Works Department for conformance with City requirements. All new and existing easements shall be 16 feet clear of any and all obstructions. 8. That prior to issuance of any grading or building permits for the site, the applicant shall demonstrate to the satisfaction of the • Public Works Department and the Planning Department that 4 INDEX City of Newport Beach • Planning Commission Minutes April 23, 1998 adequate sewer facilities will be available for the project. Such demonstration shall include verification from the Orange County Sanitation District and the City's Utilities Department. That this Tentative Tract Map shall expire unless exercised within 24 months from the date of approval as specified in Chapter 19.08 of the Newport Beach Municipal Code. Modification No. 4688 Findings: That the Land Use Element of the General Plan designates the site for "Multi- Family Residential" use and the proposed six unit residential condominium project is consistent with this designation and the guest parking spaces are a requirement of the primary use. The project has been determined to be Categorically Exempt under Class 3 (New Constructionor Conversion of Small Structures). • 3. That the modification to the Zoning Code, as proposed with the required landscaping will not be detrimental to persons, property or improvements in the neighborhoodfor the following reasons: The proposed encroachment will not obstruct views from adjoining residential properties because there are no scenic views from this location. Landscaping will be provided along the front property line to soften impacts of the proposed parking space from the public street. The parking provided .will all be independently accessible, which is a preferable parking arrangement than would be provided through strict compliance with the requirements of the Zoning Code. 4. That the modification to the Zoning Code as proposed would be consistent with the legislative intent of Title 20 of the Newport Beach Municipal Code for the following reasons: • The proposed encroachment is a logical use of the property that would be precluded by strict application of the zoning requirements for this District. • The proposed encroachment is consistent with other multi- family projects on Tustin Avenue that have front facing garages and have parking spaces on the driveways in front of • the garages. 5 INDEX u • City of Newport Beach Planning Commission Minutes April 23, 1998 Conditions: That development shall be in substantial conformance with the approved site plan, floor plan and elevations, except as noted below. 2. That the final design of all on -site parking, vehicular circulation and pedestrian circulation systems shall be subject to approval of the City Traffic Engineer. 3. That a landscape and irrigation plan for the site shall be submitted to the Building Department in conjunction with plans for construction of the project and shall be approved by the Public Works and Planning Departments. Landscaping shall be provided in a combination of trees, low shrubs and ground cover acceptable to the Planning Department, Public Works Department and General Services Department. That prior to issuance of the certificate of occupancy or final of building permits the applicant shall schedule an inspection by the Code Enforcement Division to confirm installation of the landscaping specified by this condition of approval. 4. The intersection of the private drive and Tustin Avenue shall be designed to provide sight distance for a speed of 30 miles per hour. Slopes, landscape, walls and other obstructions shall be considered in the sight distance requirements. Landscaping within the sight line shall not exceed twenty -four inches in height. Minor variances from this requirement may be approved by the Traffic Engineer. 5. That this Modification shall expire unless exercised within 24 months from the date of approval as specified in Section 20.93.055A of the Newport Beach Municipal Code. SUBJECT: JP's of Newport Beach 3450 Via Oporto • UsePerm#No.3626 Request to allow the re- establishment of the existing Warehouse Restaurant as JP's of Newport Beach, a new full service restaurant and entertainment facility. The application includes alcoholic beverage service, outdoor patio dining, indoor and outdoor live musical entertainment and indoor dancing. The application also includes a request to permit a variety of interactive sports and skill games and to allow the use of valet parking service. INDEX Item No. 3 Use Permit No. 3626 Continued to 5/7/98 City of Newport Beach • Planning Commission Minutes April 23, 1998 Staff requests that this application be continued to review changes to the proposed plans made by the applicant. Motion was made by Commissioner Ridgeway to continue this item, as requested, to May 71h. Without objection and by show of hands, Motion Passed. xss SUBJECT: Proposed Alcoholic Beverage Outlet Regulations Amendment No. 869 Amendment to add new Chapter 20.89 to Title 20 of the Municipal Code to establish regulations for the operation of retail alcoholic beverage outlets. Assistant City Manager, Sharon Wood asked the Chief of Police, Bob McDonell to present the background of the ordinance and then she will do a brief presentation on its concept. Chief of Police, Bob McDonell spoke in support of the proposed Alcoholic • Beverage Ordinance. For the record, he stated that the Police Department believes and is confident that the vast majority of restaurants and establishments that serve alcohol in the community do so in a very responsible way. That factor should not diminish the strong need to have the planning tools in place to deal with those who do not live up to the expected standards of operation in this community. Enforcement should not be the only tool to deal with land use and operational issues. Continuing, he noted the following: • June, 1996 - hosted a community forum featuring Dr. F. Whitman noted national expert on community alcohol planning issues to raise the collective consciousness of policy makers and informal leadership regarding the impacts of alcohol and quality of life within certain areas of the City • The resources of the Police Department: 1995 - made 1,548 alcohol related arrests which represented 33% of all arrests made within the community 1996 - made 1,653 alcohol related arrests which represented 42% of all arrests made within the community 1997 - made 1,574 alcohol related arrests which represented 44% of all arrests made within the community • City has greatest number of alcohol licenses in the peninsula and West Newport area - percentage of alcohol related arrests is 62% compared to the rest of the city To ensure that we are managing the resources given to the Police Department in the most effective way possible, we are responsible to • inform the Commission as well as the Council of the planning related 7 Item No. 4 A No. 869 Approved INDEX City of Newport Beach • Planning Commission Minutes April 23, 1998 issue. A great deal of time, energy and resources is being spent on this problem which the Police Department feels could be handled in a much more effective way with the proper planning tools in place. By doing so, it would have the long term effect or potential of allowing the Department to divert some of those resources to more serious things in the community. During the discussion on the regulatory issues involved surrounding the proposed ordinance, there have been suggestions that the revenue produced by the restaurant and bar industry should offset the cost of providing an adequate level of service to deal with the arrests that are necessary as a result of alcohol consumption. According to city figures, the restaurant and bar industry returns about 2.7 million in annual tax revenues. The annual Police Department budget is 24 million. 44% of all of the arrests made last year, were alcohol related. There is not a direct correlation between the budget and the percentage numbers, since much more is done as an organization. However, costs related to alcohol for outstrip the revenue received. The importance of proper planning is that those businesses that become problematic and new businesses that come into the community do not become burdensome on the resources of the Police Department. The proposed ordinance has been modified significantly from the • original drafts to minimize the impacts on the existing businesses to the extent that they virtually do not apply. The only exception would be if a particular business was operated in such a poor manner as to bring it under the control of the ordinance by virtue of repeated violations which continued to exist. One comment made by opponents to the ordinance is that the reasons contained in the ordinance that would result in a business being brought under the terms of the ordinance are too vague. For instance, the question of what exactly constitutes a public nuisance ruling by the Planning Commission or the City Council. The answer is that the burden of proof is clearly on the City to convince the policy makers based on the finding that substantial evidence is presented that a particular business has crossed that threshold. The proof required would be significant and would not be characterized as vague in any respect. The prospect of adding regulatory controls to business can be daunting, but the approach that has been taken has not been uncompromising and the proposal reflects a substantial number of the concerns expressed by existing businesses while at the same time advocating a responsible planning process to mitigate the inordinate amount of resources. Commissioner Ashley expressed his concerns about bringing a violation against a restaurant or alcohol establishment as excessive calls for service and /or complaints from neighbors of surrounding properties: • what would constitute excessive calls • how to screen legitimate against illegitimate complaints • INDEX City of Newport Beach • Planning Commission Minutes April 23, 1998 Police Chief answered that is being done today. Every time calls are made to a business that has an alcohol license it is recorded and tracked if it was substantiated. When that evidence is presented to the Planning Commission or Council, the department will tell you whether the call was founded or not. Saying that 60 calls in a two month period is excessive or not compared to like establishments is up for determination. No issue will be brought unless the department feels it is overriding. At further commission inquiry, he stated that the establishments are regulated by the ABC on revenue based issues. Quality of life issues are not affected by the ABC. The ABC has approximately ten people for the entire county and essentially depend on the local police department to provide information for evaluation in terms of a license action. Commissioner Selich asked about Section 20.89.030 and the definition of '.objectionable conditions which constitute a public nuisance" was that written specificallyfor this ordinance or was it taken from other city or state codes. Assistant City Attorney, Robin Clauson responded that the City of Oakland has a similar ordinance that has been approved by the Appellate Court. Some of the language comes from Oakland's ordinance and other cities • that have adopted similar regulations. Patrick Alford continued by stating that the ordinance also reflects some of the conditions that have been related in a number of studies relating to alcoholic beverage related problems. Chairperson Kranzley noted that in looking at the issues, if there was a law against loitering and was answered, no. If there is a combination of loitering and vandalism, assault or any other issue listed, it does become illegal. Commissioner Ridgeway noted that the objectionable conditions as sated on page 9 are real as related to a new or existing business. However, the nexus between this activity and the premise or location involved has not been established. Suggesting the following sentence, "if these conditions are directly related to the patron of the subject premise" he asks that this direct relationship be accomplished. Continuing, there are many accusations by people, especially in Cannery Village that are not related to any one bar. This sentence should also be added to 20.89.050 in item 3, Loitering and Nuisances. The burden of proof is substantial evidence, it should not be difficult to make this determination. Some type of language should be put in so that the owner of the establishment doesn't have some accusation or be suspect of one these conditions when he has no control. That owner can then be put on notice. • Chief McDonell noted that a nexus has to be provided between the 9 INDEX City of Newport Beach • Planning Commission Minutes April 23, 1998 subject premise and the activity and that language can be provided by the attorney's office. If a nexus can't be provided, then the police are not going to be able to convince four members of this Commission that the establishment meets the public nuisance threshold. There is a requirement to give the owner at least a 30 day notice to clear up the issues. The goal is to gain cooperation from the operators. Commissioner Gifford stated that she has heard concerns from the business community that they may be targeted by neighbors or groups that have an interest that is opposed to the business. The police are not breaking new ground with this issue to establish the premise. If some or all of the activities referred to in the definition of what constitutes a public nuisance were illegal in and of themselves, are illegal and would be charged to the individual who is committing them. The purpose of including them here is to tie them and the consequences of those acts, if being promoted by the establishment, back to the establishment. Commissioner Adams asked if this ordinance could be used against a collection of restaurants if there is some uncertainty about where the problem comes from to which each he was answered no, that each establishment would have to be declared a public nuisance separately • under that threshold. Commissioner Ridgeway noted that the standard of responsibility on the owner of the establishment over continued nuisances is what is being established. Chief McDonell then proceeded to present instances of undercover operations within the community. Assistant City Attorney Clauson noted that there is the ability to file a lawsuit to abate a public nuisance or to obtain an injunction to stop operations of a public nuisance. It is a different standard than what is being established here, but it does exist. Generally, the finding is that there is an impact on the neighborhood or a large number of members of the public in the surrounding businesses or area. Commissioner Ridgeway then asked about the paragraph of "objectionable conditions" and the potential redundancyof language. Mrs. Clauson answered, potentially'—documented violation of Municipal and Penal Code statutes,; would be redundant of what is stated. One suggested change might be, "shall include repeated instances of disturbances of the peace,....:' and in the pattern of conduct have more of a definite indication that it would have to be repeated as well as ending it with suggested language ....... which conduct is directly related to • the alcoholic beverage outlet:' [referencing top paragraph on page 9 in 10 INDEX City of Newport Beach • Planning Commission Minutes April 23, 1998 staff report] Chairperson Kranzley then asked about information on types of ABC licenses. He was answered that generally the ABC conditions the license and requires it to have at least 51% of gross sales devoted to food if it is essentially an on sale eating establishment. Mike McDermott, Sergeant Vice and Intelligent stated that the 51% requirement is fairly new. What ABC would do if someone had a type 41 license and were not serving food as required, ABC would come in and take administrative action starting with fines and could work up to suspension or possibly revocation with repeated violations. This process literally takes years. Violations continue along with the license. Most of the activity is in the on -sale locations, especially on the west side. Mrs. Wood noted the following: • ordinance has been in process for a long time • public participation with input from business community resulted in the elimination from the earlier draft: all of these provisionswould apply to existing establishmentswithin two years • new regulations would apply to an existing establishmentif the ownership would change specific distances from other uses such as parks and schools • staff asked a specific group of people to work on the draft ordinance and to help refine it (representatives from business community who have on -sale and off -sale establishments; bar owner, restaurant owner, citizens who live in neighborhoods who are impacted by bars and the Chamber of Commerce) resulting in further changes elimination of some provisions that were duplicating ABC regulations extended amount of time for an ABC suspension that would trigger the requirement of a Use Permit for an existing establishment extended the amount of time that an establishment could accomplish server training requirement as well as adding a waiver provision for the Planning Commission to waive the requirement for server training if certain conditions exist At the end of this process, it was staff's impression that there was agreement on the provisions of this ordinance except for the public nuisance conditions. In that area, the business representatives to the work group continued to be concerned about the vagueness of those provisions and whether they would be targeted individually. A presentation has been made on this draft ordinance to the Restaurant Association annual meeting, and each member of the Association was sent a copy. • INDEX City of Newport Beach • Planning Commission Minutes April 23, 1998 This ordinance regulates for the first time, both on -sale and off -sale alcoholic beverage establishments. Currently the City has only regulations for on sale establishments through the provisions of the eating and drinking establishments but no special requirement for off sale establishments. The ordinance requires that there will be a Use Permit required for new establishments, and that would apply to existing establishments only if there was a substantial change in the operation (presented proposed language for substantial change definition as it appears in Revised Section 20.89.030 [A -11). The threshold of 25% is consistent with the threshold used for other non - conforming uses and structures when that amount of expansion is exceeded. 250 square feet is the exact language used in the Zoning Code section on eating and drinking establishments. Another instance where a Use Permit would be required is the public nuisance condition in which the first step would be the notification to the business owner that there is a public nuisance condition and providing an amount of time to correct the problem. The intent of this ordinance is to identify and correct the problem. If this is not successful, a public hearing would then be scheduled where the Commission would be able to make the finding with evidence provided if there was a public nuisance. Then, the business owner would be directed to apply for a Use Permit. There is nothing in the ordinance that requires that the business be closed. The . ordinance also provides findings for a Use Permit; development and operation standards; hours of operation for the establishment; would expire in twelve months if not exercised, and if the use permit were to lapse for ninety days, then a new use permit would be required. Additional findings are added for revoking use permits. Staff believes that this ordinance will provide additional tools to deal with problems, but it is not too onerous on the business community. Commissioner Ridgeway commented that the ABO includes those bars and food eating establishments. He asked how the..." devoted to alcohol sales by more than 250 square feet.." dovetails with the outdoor dining permit process where 2517. of the net public area is allowed (which may be more than 250 square feet). Mr. Alford noted that provision is already in the regulations for eating and drinking establishments in general, so if there is an inconsistencyit currently exists with current regulations. Mrs. Wood stated that the provisions for the outdoor dining exempt the establishment from the other provisions because it is considered to be a deminimus addition. Chairperson Kranzley, referring to Section 20.89.040 - Authority, asked about the intent to exempt grocery stores and possibly unintentionally to exempt hotels. He was answered that the term food and beverage sales establishments is the term that is used in the land use classification section • 12 INDEX City of Newport Beach • Planning Commission Minutes April 23, 1998 of the Zoning Code to describe grocery stores. So, this is consistent with the other provisions of the code and it is clear that it is not hotels. Hotels are also under a different ABC license type. Public Comment was opened. Marina Zomarron, 1040 West Santa Ana Boulevard, West Santa Ana - spoke in support of the ordinance for the following reasons: • problems associated with unregulated alcohol establishments such as assaults, driving under the influence, public drinking, littering, loitering, public urination, domestic violence and underage drinking • several public health issues which are associated with over concentration of alcoholic establishments such as increased consumption of alcohol • communities bear burden of alcohol related problems • ordinance benefit to community • decrease community costs • similar ordinances exist in Santa Cruz, Santa Barbara and Oakland • local authority able to deal with problems promptly ABC lacks manpower • Lynn Anthony Campbell, 4621 Cortland Drive owner of Quiet Women stated that the perception of public nuisance is too vague. She can not be responsible for someone else's actions. This is a tool to allow the city or Police Department to change the use permit based on the definition of public nuisance. You have to closely define what a public nuisance is. Individuals have to be responsible for their own actions. At commission inquiry, she was unable to come up with any language that would be agreeable, however, noted there is a problem and it needs to be addressed. Commissioner Ridgeway commented that the Commission and Council do have to balance the interest of business with the residential. Therefore, the ordinance will not be vague and will have adequate standards. Commissioner Adams noted that a condition for restaurants is probably more vague than the one we are talking about and it states, 'That the Planning Commission may add to or modify conditions of approval or recommend to the City Council the revocation of this Use Permit, upon a determination that the operation which is the subject of this Use Permit, causes injury, or is detrimental to the health, safety, peace, morals, comfort, or general welfare of the community." This is done to every single restaurant already. What we are talking about is not more onerous than that general condition. Ms. Clauson stated that this type of public nuisance determination as well • as the general condition just raised have been determined acceptable 13 INDEX City of Newport Beach • Planning Commission Minutes April 23, 1998 by the courts. These administrative procedures give due process. It is legal to allow for the Planning Commission to make a determination if something is contrary to the health, safety and welfare of the community. Also to make a determination of what is a public nuisance and whether they have substantial evidence to support that general finding. Ms. Gifford noting that balance is necessary stated that a lot of operators do not have a sense of what the Commission sees from time to time. For instance, if a restaurant owner that had a parking lot that provided 30 spaces advertised a particular form of entertainment hoping to get more patronage than what could be accommodated, that would result in parking problems for neighbors. Those are the kinds of continuing patterns of conduct that is referred to, that illegal parking that would occur. There has to be a definite connection to the restaurant and not something that is happening around the property. It would be looked at to determine if there was a nuisance or not. Ms. Clauson stated that within the general health, safety and welfare standard in the businesses that have a use permit, there is not a definition or any indication of what constitutes public nuisance. This information is just as useful in the context of businesses that will be getting a use permit if • this is approved. The concept is for those businesses that do not have a use permit, and do not conduct their business as a public nuisance, they may never have to get a use permit because the procedures are set up so they have the protection of advance notice and opportunity to correct those nuisances. Howard Norris, 121 McFadden, owner of Stag Bar referencing a letter he sent stated he objects to the ordinance noting the following: • was part of the outreach program • the proposed amendment is too vague • ABC people can take away license • listed reasons for public nuisances are already covered • incident file at the police department • City can close up problem bars without this ordinance Richard Luehrs, President of Newport Beach Chamber of Commerce stated he has been involved in this ordinance process for the last two years, and thanked staff for the changes made thus far. We now have one paragraph that is being discussed ('objectionable conditions which constitute a public nuisance "), which had been a concern. If the Planning Commission works on the wording for more specific definition - nexus and /or substantiated complaints, he would support the ordinance. Bill Hamilton, owner of Cannery Restaurant spoke on the ordinance noting: • unsubstantiated complaints is a fear of business owners • • change language to make it difficult for people to conspire to put out 14 INDEX City of Newport Beach • Planning Commission Minutes April 23, 1998 a business there is a problem with the closeness of business and residences in Cannery Village Commissioner Ridgeway stated that the word "substantiated" should be included in front of complaints, and possibly a continuance of this item to allow the restaurant owners additional time to come up with language that they think will be more palatable for them. Commissioner Adams stated that the restaurant owners could do that between now and when this item is heard by the City Council and recommended not to continue this item. Commission could articulate in our recommendation the fact that the language may be reconsidered with input from the restaurant group. Chairperson Kranzley stated support for this ordinance with the inclusion of the language of establishing a nexus and substantiated complaints as well as eliminating 'loitering' as it just does not seem to fit with all the other words that are in that paragraph as it is in and of itself not illegal. Motion was made by Commissioner Ridgeway to adopt Resolution No. • 1466 recommending approval of Amendment No. 869 to the City Council. The following modifications to 20.89.030 2. A finding is made by the Planning Commission, or the Planning Director, as the case may be, that the existing alcoholic beverage outlet is operated or maintained under objectionable conditions as provided for herein after that constitute a public nuisance. However, in no case shall the Planning Commission, or the Planning Director, as the case may be, make this finding until the owner and /or operator of the alcoholic beverage outlet has been notified of the objectionable conditions and allowed a minimum of 30 days to correct these conditions. The Planning Commission, or the Planning Director, as the case may be, shall include in the notice a list of recommended actions deemed necessary to correct the objectionable conditions. The paragraph of "Objectionable conditions which constitute a public nuisance "...shall be amended as follows: "Objectionable conditions which constitute a public nuisance" shall include repeated instances of disturbances of the peace, illegal drug activity, public drunkenness, drinking in public, harassment of passersby, gambling, prostitution, sale of stolen goods, public urination, theft, assaults, batteries, acts of • vandalism, leiieriag, excessive littering, illegal parking, excessive 15 INDEX City of Newport Beach • Planning Commission Minutes April 23, 1998 loud noises (especially in the night or early morning hours), traffic violations, lewd conduct, or police detention and arrests; a pattern of conduct in violation of ABC and local alcohol laws; excessive calls for service and /or substantiated complaints from neighbors and surrounding properties; documented violation of municipal and penal code statutes; observed criminal behavior on the premises or in surrounding open areas, such as parking lots, sidewalks and alleys. Any one of these conditions shall be directly related to the patrons of the subject premise. Ms. Clauson noted the following language to modify the ordinance wording to be included in the motion: • documented violation of municipal and penal code statutes- delete because of redundancy • after, '....alleys which conduct or condition are directly related to the operation of the alcohol beverage outlet. Chairperson Kranzley noted his concern about the reluctance of a manager of a bar or a bartenderto make a call to the police if they sense trouble occurring in the bar. • Commissioner Gifford supported this by stating that Commission wants to support the owner to act quickly to involve the police in a situation that may by dangerous. What this refers to is if the police are called to an establishment two or three times a night, then that may indicate a problem with the way the establishment is run. 'Excessive' would always involve burden of proof that shows some kind of highly disproportionate number of calls and relates to the operation of similartypes of businesses in the City. She then asked the maker of the motion to change the language which was proposed from "repeated" to "pattern of conduct ". Discussion ensued on the language of this paragraph, the burden of proof that has to be shown to the Planning Commission, Council, Judge or Court. Discussed too was during the Zoning Ordinance re- write, it was brought up a number of times that over the last twenty years there have not been more than three Use Permits brought up for Planning Commission review as it is very difficult to get to that point. Also recognized during discussion were the fears of the businesses owners as represented in correspondence and testimony but that Commission did not feel was substantiated. Mrs. Wood noted that the paragraph regarding Loitering and Nuisances in 20.89.050 should be retained because it is asking the owner of the establishment to take reasonable steps to prevent problems from growing but to be consistent with the change made to 20.89.030 strike Loitering • and have the paragraph refer to Nuisances only. 16 INDEX City of Newport Beach • Planning Commission Minutes April 23, 1998 Ms. Clauson added that for the nexus issue under the paragraph referring to "objectionable conditions.:' to make it more clear that it is a definition, so that before the words "objectionable conditions'to say, "As used in this chapter "objectionable conditions which constitute a public nuisance" shall mean ....... This would include all the information including the fact that it has to be directly related to the business. The Commission agreed to this additional wording to be part of the motion. Mrs. Wood then asked to change 20.82.050 to make it clear that adding accessory outdoor dining would not trigger the Use Permit required under the Alcoholic Beverage Ordinance by referencing this new Chapter 20.89. She also asked for the section on Food Service /Non- AlcoholicBeverage to be deleted because of inconsistencywith the ABC regulations. Commissioner Ridgeway then amended his motion to include editing paragraph in Section 20.89.050 No. 3 to remove, '.....loitering ..." and the word Loitering in the title as well as the deletion from Section 20.89.050 paragraph 9 referring to Food Service /Non - Alcoholic Beverage as it inconsistent with ABC regulations. He then added by reference, the suggested revision to Section 20.89.030 (A -1). • Without objection and by show of hands, MOTION PASSED. 20.89.030 Use Permit Required A. A use permit shall be required for any new alcoholic beverage outlet and for any existing alcoholic beverage outlet meeting any of the following criteria: There is a substantial change in the mode or character of operation. A substantial change in mode or character of operation, includes, but is not limited to the following: a. The alcoholic beverage outlet changes its type of retail liquor license with the Department of Alcoholic Beverage Control; or b. The off -sale alcoholic beverage outlet increases the floor area or shelf space principally devoted to alcohol sales by 25 • percent or more; or 17 INDEX City of Newport Beach . Planning Commission Minutes April 23, 1998 C. The on -sale alcoholic beverage outlet increases the floor area principally devoted to alcohol sales by more than 250 square feet or d. The alcoholic beverage outlet proposes to reinstate alcohol sales after the ABC license has been revoked or suspended for a period greater than 30 days by the ABC. 2. A finding is made by the Planning Commission, or the Planning Director, as the case may be, that the existing alcoholic beverage outlet is operated or maintained under objectionable conditions as provided for herein after that constitute a public nuisance. However, in no case shall the Planning Commission, or the Planning Director, as the case may be, make this finding until the owner and /or operator of the alcoholic beverage outlet has been notified of the objectionable conditions and • allowed a minimum of 30 days to correct these conditions. The Planning Commission, or the Planning Director, as the case may be, shall include in the notice a list of recommended actions deemed necessary to correct the objectionable conditions. As used in this chapter "objectionable conditions which constitute a public nuisance" shall mean repeated instances of conduct or conditions such as disturbances of the peace, illegal drug activity, public drunkenness, drinking in public, harassment of passersby, gambling, prostitution, sale of stolen goods, public urination, theft, assaults, batteries, acts of vandalism, 19490ing, excessive littering, illegal parking, excessive loud noises (especially in the night or early morning hours), traffic violations, lewd conduct, or police detention and arrests; a pattern of conduct in violation of ABC and local alcohol laws; excessive calls for service and /or substantiated complaints from neighbors and surrounding properties; observed criminal behavior on the premises or in surrounding open areas, such as parking lots, • sidewalks and alleys, which conduct or conditions 18 INDEX City of Newport Beach . Planning Commission Minutes April 23, 1998 operations of the alcohol beverage establishment. B. Required Findings. In order to approve a use permit for an alcoholic beverage outlet, the Planning Commission, or the Planning Director, as the case may be, shall find that the proposed use is consistent with the purpose and intent of this chapter, in addition to the findings required by Section 20.91.035. In making the required findings, the Planning Commission, or the Planning Director, as the case may be, shall consider the following: 1. Whether the use serves public convenience or necessity. 2. The crime rate in the reporting district and adjacent reporting districts as compared to other areas in the City. 3. The number of alcohol licenses per capita in the reporting district and in adjacent reporting districts is as compared to the county -wide average. 4. The numbers of alcohol - related calls for service, crimes or arrests in the reporting district and in adjacent reporting districts. 5. The proximity of the alcoholic beverage outlet to residential districts, day care centers, park and recreation facilities, places of religious assembly, and schools. 20.89.040 Authority The Planning Commission shall approve, conditionally approve, or disapprove applications for use permits for alcoholic beverage outlets. Exceotion. The Planning Director shall have the authority to render decisions on use permits for food and beverage sales establishments totaling more than 10,000 square feet with no more than 10 percent of the gross floor area devoted to alcohol sales and display. 20.89.050 Development and Operational Regulations A. Applicability. The regulations of this section shall apply to any new alcoholic beverage outlet and to any existing • 19 INDEX City of Newport Beach . Planning Commission Minutes April 23, 1998 alcoholic beverage outlet meeting any of the criteria specified in Section 20.89.030 (A). B. Development and Operational Regulations. Sians and Displays. Signs and displays in off -sale alcoholic beverage outlets shall not obstruct the sales counter, cash register, seller and customer from view from the exterior. b. Loitering, open container, and other signs specified by the Alcoholic Beverage Control Act shall be posted as required by the ABC. 2. Drinking Alcohol Outside. a. The selling of alcoholic beverages for consumption outside the building shall be • prohibited. 'Exception: The provision shall not apply to Eating and Drinking Establishments with approved outdoor or sidewalk cafe dining. 3. >_ei#eriae and Nuisances. Reasonable steps to discourage 1949 iag and to correct objectionable conditions that constitute a nuisance in parking areas, sidewalks, alleys and areas surrounding the alcoholic beverage outlet and adjacent properties must be taken during business hours if directly related to the patrons of the subject alcoholic beverage outlet. 'Reasonable steps" shall include calling the police in a timely manner; preventive design features (see Section 20.89.050 (B -6) below); and requesting those engaging in such activities to cease those activities, unless personal safety would be threatened in making that request. 4. Hours of Operation. The Planning Commission, or the Planning Director, as the case may be, may restrict the hours of operation of the alcoholic • beverage outlet. 20 INDEX City of Newport Beach • Planning Commission Minutes April 23, 1998 5. Mode of Sale. Alcoholic beverage sales from drive -up or walk -up service windows shall be prohibited. This provision shall also apply to alcoholic beverage sales to persons in watercraft. 6. Preventive Design. The site plan and floor plan of all alcoholic beverage outlets shall be reviewed for opportunities to incorporate design features to assist in reducing alcohol - related problems. The Planning Commission, or the Planning Director, as the case may be, may condition the alcoholic beverage outlet to incorporate preventive design features. Such features may include, but are not limited to, openness to surveillance and control of the premises, the perimeter, and surrounding properties; reduction of opportunities for congregating and obstructing public ways and neighboring property; illumination of exterior areas; and limiting furnishings and features that encourage loitering and nuisance behavior. • 7. Securi . The Planning Commission, or the Planning Director, as the case may be, may require the alcoholic beverage outlet to provide adequate security personnel and /or devices. 8. Litter and Graffiti. The exterior of the alcoholic beverage outlet, including all signs and accessory buildings and structures, shall be maintained free of litter and graffiti at all times. The owner or operator shall provide for daily removal of trash, litter and debris from the premises and on all abutting sidewalks within 20 feet of the premises. Graffiti shall be removed within 48 hours of written notice from the City. 40.9. Responsible Beverage Service /Sales Trainina Requirements. a. Required Training. All owners, managers • and employees serving and /or selling 21 INDEX City of Newport Beach • Planning Commission Minutes April 23, 1998 alcoholic beverages in alcoholic beverage outlets undergo and successfully complete a certified training program in responsible methods and skills for serving and selling alcoholic beverages. b. When Required. Responsible Beverage service and sales training shall be required for all new alcoholic beverage outlets and for any existing alcoholic beverage outlet upon a finding of the Planning Commission, or the Planning Director, as the case may be, that the establishment is operated or maintained under objectionable conditions that constitute a public nuisance. C. Certified Programs. To qualify to meet the requirements of this section a certified program must meet the standards of the California Coordinating Council on • Responsible Beverage Service (CCC /RBS) or other certifying /licensing body which the State may designate. d. Timetable for Compliance. New alcoholic beverage outlets shall comply with the requirements of this section within 180 consecutive days of the issuance of the certificate of occupancy. Existing alcoholic beverage outlets shall comply with the requirements of this section within 180 days of the effective date of the use permit. e. Records. Records of each owner's, manager's and employee's successful completion of the certified training program required by this section shall be maintained on the premises of the alcoholic beverage outlet and shall be presented upon request by a representative of the City of Newport Beach. f. Waiver. The Planning Commission, or the • Planning Director, as the case may be, 22 INDEX City of Newport Beach ON Planning Commission Minutes April 23, 1998 may waive or modify all or part of the requirements of this section upon finding that the employees of the alcoholic beverage outlet are sufficiently knowledgeable in the responsible methods and skills for serving and selling alcoholic beverage training. #MW Commission recessed for five minutes SUBJECT: Revised Regulations to allow convenience markets in conjunction with service stations An amendment to Chapter 20.80 and Chapter 20.03 of Title 20 of the Municipal Code to update regulationsfor service stations and to allow the co- development of convenience markets and eating and drinking establishments. Mr. Alford presented the staff report noting: • Current regulations were adopted in 1972 and are limited as to the • • type of permitted activities Non- automotive activities permitted are the sale of soft drinks, candy, cigarettes, ice and similar items from vending machines • Proposed regulations would add convenience markets and eating and drinking establishments to those land uses currently permitted with a use permit in association with a service station • Minimum land area based on facilities is proposed • Includes an exception to allow service stations to have up to 50 square feet of floor area to be used for the display and sale of non - automotive merchandise and food and beverages • Included also are criteria under which a use permit is required for an existing service station • Allows carwash activities (currently technically not permitted) • Update zoning terms • Advisory guidelines to address concerns about potential impacts to the visual quality and character of the community • End of a de facto ban on all alcoholic beverage sales at service stations which would open the way for any service station to sell beer and wine for off -site consumption • Wholesale ban would be lost, the City could still address this issue on a project by project basis Chairperson Kronzley asked for and received a discussion on how this item would be affected by the previous ordinancejust passed. • Mr. Alford, at Commission inquiry, added that the intent of the suggested 23 Item No. 5 Denied INDEX City of Newport Beach Planning Commission Minutes April 23, 1998 site and architectural design guidelines is to provide some basis to be consistent with issues of quality design to be compatible with adjacent areas. Mrs. Wood continued noting that the design guidelines are written as advisory and do not have exacting standards. Commissioner Adams clarified that the EDC subcommittee did not support the provisions as written. Staff noted that this was sent back to the committee to focus on the issue of minimum land area and was intended to reflect the different approaches that were being considered to proceed with the recommendations as presented. It was not intended to be an overall endorsement of the ordinance. Public comment was opened. Bernie Rollin, President of Big Canyon Community Association- stated that there are two stations very close to residences. There are significant problems with these stations such as work being done outside, work being done after hours, vehicles and trucks parked in the neighborhood, violations on food served and banners. The sale of alcohol would be an • additional problem with transients congregating 24 hours a day. Please care about the residents rather than adding revenue to the City. He concluded asking not to make the service stations into truck stops. Commissioner Adams stated that there are components of this amendment that is intended to address problems spoken. And the revenue issue is not the only reason for this amendment. There are some elements that are positive and could help some of the problems happening today. Staff noted that the code enforcement will be notified about the problems of noise and storage of tires outside. The administrative citation ordinance was drafted for situations such as this. Penny Myers, board member of the Big Canyon Community Association - spoke in opposition to the alcoholic use for the following reasons: • Vagrants coming from police station congregate at service station • Teens congregate there at night • Prevent this public nuisance Doug Coulter, 21 Rue Fountainbleau - President of Canyon Mesa Association spoke in opposition to this amendment for similar reason stated above. Public comment was closed. • 24 INDEX City of Newport Beach • Planning Commission Minutes April 23, 1998 Commissioner Adams stated that in all of the discussions during committee meetings he has never heard a convincing argument of why Commission needs to facilitate incorporating convenience markets. The only argument heard was that they would provide convenience to the people of the City of Newport Beach as they could buy gas and pay triple price for milk on their way home from work. There is no outpouring of citizenry here demanding more convenience markets and the market forces have not created applications or construction all over the City. There is no reason to do this. However, there is an antiquated code dealing with gas stations and maybe we need to be addressing that rather than jazzing it up with mini -marts. The impetus behind this was the gas industry who came in here wanting this. This is not right and the example of hybrid uses are not attractive land uses. Motion was made to deny Amendment 863 and direct staff to come up with proposed changes to the code to update gas stations to address some of these problems and allow car washes. Commissioner Gifford stated she does not support this ordinance and recommended denial to city council and then recommend staff to work on the gas stations separately. • Commissioner Ridgeway stated that virtually every station in the City is in violation due to open sales of items. Part of the impetus of this amendment was to clean this up. We are going to continue to have these violations if this amendment is denied. Even if the ordinance is passed, there would have to be a public hearing for a use permit with certain findings for approval. Discussion continued on: • public hearing issues, • applications and issues of violations, • upgrade of code regulations regarding gas stations, • mass and bulk and • drive - through facilities. • lack of interest by citizens for this • no benefit to local residents • no clear message from the oil companies • certain parts of town that this might be workable but not at this location Without objection and by show of hands, MOTION PASSED. ADDITIONAL BUSINESS: a.) City Council Follow -up - Oral report by the Assistant City Manager regarding City Council actions related to planning - Mrs. Wood • reported that at the City Council meeting on April 131h Via Lido 25 Additional Business INDEX City of Newport Beach • Planning Commission Minutes April 23, 1998 project was approved with direction to staff to research the possible waiver of coastal access condition of approval; and Fletcher Jones lights issue is satisfied. b.) Oral report by the Planning Director regarding the approval of Outdoor Dining. Permits, Planning Director's Use Permits, Modification Permits and Temporary Use Permits - Accessory Outdoor Dining Permits were issued for 2531 Eastbluff,Drive, and 630 Lido Park Drive; Planning Director's Use Permit was issued for 4678 Campus Drive, Suite E; and Modifications were issued for 1948 Port Albans, 518 Westminster Avenue, 2312 Margaret Drive, 4 Old Course Drive, 6 Old Course Drive, 8 Old Course Drive, 10 Old Course Drive, 6811 Seashore Drive and 602 Avocado Avenue; and a Temporary Use Permit was issued for 3100 West Coast Highway. C.) Oral report from Planning Commission's representative to the Economic Development Committee - Commissioner Selich reported that a committee has been established with representatives from both the EQAC and EDC to work on Bayfront restaurant regulations. It was reported their first meeting will be Tuesday, April 28th. d.) Matters which a Planning Commissioner would like staff to report on at a subsequent meeting - Commissioner Adams asked about window signs at the Shamrock Bar. Commissioner Gifford asked about the report on Savannah's Hut lot use with trailers, boat and dumpster; and a report on the enclosure of outdoor dining areas with regards to the new smoking ban. e.) Matters which a Planning Commissioner may wish to place on a future agenda for action and staff report - none e.) Requests for excused absences- Commissioner Ashley asked to be excused from May 21 st meeting. ADJOURNMENT. 10:00 P.M. THOMAS ASHLEY, SECRETARY CITY OF NEWPORT BEACH PLANNING COMMISSION i 26 INDEX