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HomeMy WebLinkAbout05/06/2004• • CJ Planning Commission Minutes 05/06/2004 CITY OF NEWPORT BEACH Planning Commission Minutes May 6, 2004 Regular Meeting - 6:30 p.m. Page 1 of 26 file: //H: \Plancomm \2004 \0506.htm 05/21/2004 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 Jim Campbell, Senior Planner Gregg Ramirez, Associate Planner Rosalinh Ung,,Associate Planner Tony.Brine, Principal. Civil Engineer Ginger Varin, Planning Commission Executive Secretary PUBLIC COMMENTS: PUBLIC COMMENTS None POSTING OF THE AGENDA: POSTING OF THE AGENDA The Planning Commission Agenda was posted on April 30, 2004. CONSENT CALENDAR MINUTES of the adjourned and regular meeting of April 22, ITEM NO. 1 2004. Motion was made by Commissioner Tucker to approve the minutes. Ayes: Eaton, Cole, Toerge, McDaniel ;- Selich, Kiser and Noes: Tucker Absent: None Abstain: None None I file: //H: \Plancomm \2004 \0506.htm 05/21/2004 Planning Commission Minutes 05/06/2004 HEARING ITEMS SUBJECT: Newport Technology Center, Traffic Study No. 2003- 001 (PA2003 -122) & Amendment to Use Permit No. 3679 500 -540 Superior Avenue Request to amend Use Permit No. 3679 to allow 50% of the constructed Newport Technology Center to be used for general office uses with the remaining 50% of floor area leased for research and development uses. The amendment also includes a request to exceed the allowable building bulk standards that was not considered in 2001 prior to the construction of Newport Technology Center. The item also includes Traffic Study No. 2003- 001 pursuant to the Traffic Phasing Ordinance. Senior Planner James Campbell noted the main issues of the staff report such as difficulty to lease the buildings since construction; trip -generation, review. and traffic-analysis; conditions of approval to be amended; applicants request for 50% office not consistent-with floor area limitations of the Zone Code therefore, staff is recommending reduction of the office area to 43 %; building bulk area findings to allow the constructed project to exceed the bulk limitations; use of structures compatible with surrounding areas; physical suitability of the site for the proposed development; and draft resolution emailed to Commissioners. In response to Commission's inquiries, Mr. Campbell added: . Use Permit that was heard 2001 allowed the building to exceed the base height limit of 32 feet up to 50 feet. . Architectural treatment was one issue for granting the height approval. . Findings related to increased visual open space and public views: The location of structure on lot, percentage of ground cover and treatment of all setback areas; and floor area were considered. *Discussed definitions of research and development use versus office use and the number of people occupying those uses. Commissioner Cole noted that there certainly seems to be substantial parking to provide for the same number of people that could potentially use an R and D use versus an office use on the Page 2 of 26 • ITEM NO. 2 PA2003 -122 Approved file: //H:\Plancomm1200410506.htm 05/21/2004 • 0 • • Planning Commission Minutes 05/06/2004 project. It doesn't appear that the current configuration would limit the number of people whether R & D or office. He then asked that under the current condition of the premises if a company wanted to occupy the buildings and call it an R & D use but occupy it like an office use in the form of open space and have some type of cubicles or laboratory space, would they still be able to have the same number of people in that space because the parking is there? What is the real impact, is it additional traffic versus the existing use? He noted he does not see a potential impact based on the way the City enforces the number of people who occupy the premises. Mr. Campbell noted that the Zoning Code definition does not provide direction in terms of the occupant load. That is an outgrowth of the former analysis for the former Raytheon facility and that is why it has been carried forward, to try to ensure the assumptions made in the traffic analysis are still maintained for the research and industrial portion of the facility. For the office portion, we are using the standard trip generation rates. Mr. Tony Brine, Principal Engineer, answered that the' trip generation rates for office use are different than R and D. It is not based on the number of employees but rather a per square foot basis. Mr. Campbell noted that there is a condition of approval that requires the Planning Director to evaluate the business plan and floor plan to ensure that a potential tenant falls within the industrial research and development use classifications. Through the business license process the number of employees can be evaluated and tracked to keep the total occupant load to the maximum level for the R and D portions. Commissioner Cole asked what criteria will be used to determine R & D use from an office use? Ms. Temple answered that she reviews the floor plan and whether the total of the tenant space has areas set aside for what would be considered more for development or creative research areas in association with any other offices that might be within it. We do not limit persons per square foot occupancies in either use as a zoning requirement. For the purpose of this condition we will continue to monitor on a yearly basis employee counts within certain businesses and if they are approaching the limits, we would inform the leasing agencies that they may not have the ability to lease any more space unless the employee count is reduced. Commissioner Toerge noted that condition 37 was included in 2001 by the City Council to limit the number of employees on site file: //H:\Plancomm \2004 \0506.htm Page 3 of 26 05/21/2004 Planning Commission Minutes 05/06/2004 Page 4 of 26 at any one time to 1,965. What was the logic? Why not leave the limit the way it is? • Ms. Temple noted that was a condition of the original traffic study. The whole purpose of the prior action was to enable the project to move forward without processing a new traffic study pursuant to the Traffic Phasing Ordinance (TPO), so we just kept the same limitation. Mr. Campbell added that the amendment to condition 37 was necessary since we were going to. be reducing the total amount of R & D space by allowing the office space. We reduced the total employees for the R & D use based on the percentages that would ultimately be approved, if this project was approved. Commissioner Toerge noted that it seems that the City would be better protected if we just left the upper limit and let the project go where it goes. You don't have any limit at all if you assign a limit to the R & D with no limit to the office. Ms. -Clauson-noted that- through review -of the-floor plans and the business licensing process we can keep some tabs on the R & D use, but under the office use we could not. The numbers are based upon the trip generation for office use. Ms. Temple noted that the more complicated the conditions are, • the more difficult they are to enforce. This is the only building where we use this threshold for enforcement, so it is going to be a special case for as long as it is in existence unless future entitlements change it. The rational is based on the percentage of the project which must still be held to an R & D use and we did that because of the basis of the previously approved Traffic Study 15 years ago for Hughes Aircraft. We factored R and D and the office based on conventional traffic and parking generation occupancies and saw no reason to hold an employee occupancy on the office portion since all the traffic and parking analysis were based on standard conventional factors. Commissioner Tucker noted a brief synopsis of when the project first came to the Commission: • The applicant had to do a TPO traffic study for R and D and not office because R and D is parked at 2 per 1000 and the traffic features are less. • In today's age, R and D is not what it used to be. R and D is now people sitting in an office at a computer and not needing big areas. • We told the applicant at that time we can't prejudge, you said • you want R and D so come in with your plans and the Planning Director will look at them. file: //H:\Plancomm12 0 0410 5 0 6.htm 05/21/2004 • \J 0 Planning Commission Minutes 05/06/2004 . Now the applicant has decided that they are better off re- doing their TPO traffic study to say, okay, we are now really going to do office in some of this project. . What the applicant has done, they have come pretty close to finding where that point where they are almost tripping the level of services (LOS) that they have to be concerned with. . When they come up with office at 43% and did the traffic study, staff has come to the conclusion that the General Plan allows office use. Then it seems like office is allowed for 43% based upon .zoning. Office use does not require a restriction on the number of employees. . The R & D portion that the applicant has kept still carries the same baggage, is it R and D or is it something other than R and D? As each plan comes in after they have gotten past that 43% the Planning Director will have to look at it and make the decision. . If it seems confusing, it is. You have an operational characteristic that -is entirely different today. then. when... the original zoning was bestowed, so the two just don't match up. . One of the comments that we had at that time is that this is something that we ought to look at the Zoning Code for something more up to date, but staff has been occupied with a lot of other issues and we never got back to look at that internal inconsistency, and now this matter is back before us. Commissioner Toerge noted that the project has adequate parking, under Code, for office or R and D. R and D has historically been parked 3 to 1,000 square feet, but may be more dense these days than office which is normally 4 cars per 1,000 square feet. The traffic patterns of office in the peak hour impact is different than R and D and that is really what we are trying to restrict. It seems to be better protection to maintain the upper limit on the overall project rather than bifurcate it down simply to an R and D use at a lesser number. That seems a more difficult policy or condition to enforce then to leave the ultimate maximum as it is now. At Commission inquiry, Mr. Brine stated: . The traffic analysis dated March 23rd did not include cumulative impacts, only the impact from this project. . In the traffic study of 2001, the Costa Mesa intersections where 65% of this traffic was projected to go, had a worst LOS at 19th and Newport. The numbers in 2003 are lower and he is comfortable with the fact that the traffic congestion has reduced. . All the numbers used for the Costa Mesa analysis were file: //H: \P1ancomm \2004 \0506.htm Page 5 of 26 05/21/2004 Planning Commission Minutes 05/06/2004 provided by Costa Mesa. However, both Newport Beach and Costa Mesa have noticed that as we have done counts between 2000 and 2003 we have seen traffic volume decrease on the major roadways throughout the cities. Ms. Temple noted that staff received a letter that addressed noticing for this hearing. As for all public hearing projects the notice of this hearing was published ten days in advance of the hearing in the Daily Pilot; the property was posted as required by Code and also, notice was mailed to a 300 foot radius of this property. In regards to the letter received from Ms. Farrington, we did mail a notice to this resident that was returned as undeliverable with the forwarding order expired. We did mail the notice per the Equalized Assessment Roles of the County of Orange as required by the Code. Commissioner Cole asked, per the letter, why a traffic study had not been done on the intersection of Dana and Superior Avenue. Mr. Brine answered that the study intersections are done at primary intersections throughout the City. We focus on intersections we believe _that there may be. impacts . around the project.. Public comment was opened. Ms. Carol Hoffman, Government. Solutions Inc., representing the applicant of New Superior, LLC, partnership of several owners, noted the following: . She had represented the original owners of the property, St. Clair Company, during the entitlement process. We concur with the staff report and agree with the modifications to the conditions. With regard to the parking - there is parking in excess of what was required; the reason was the existing parking structure was at the extreme northwesterly, corner of the property. Relying solely on that parking would not have been convenient to some of the other buildings. The developer determined to provide parking more convenient to some of the other structures. This resulted in parking excess of the requirement of R and D as well as now for the requested office use. When the traffic studies were done the determination was that there was a great market for R and D uses at that time but that has changed since then. We want to make sure that we are consistent with all the regulations and we felt we could meet all the requirements of the R and D zoning and the previous traffic study, and so we Page 6 of 26 file: //H:\Plancomm \2004 \0506.htm 05/21/2004 Planning Commission Minutes 05/06/2004 are willing to live with the limit on the number of employees. . Staff is saying that as we are able to demonstrate that there is a percentage (43 %) of office that could be accommodated as long as the restriction for the number of employees is held for that portion that would be for R and D uses are operating as R and D. . We worked with staff to assure that the spaces and development areas within the project complied. As part of that, we are willing to live with the restricted number of employees on that portion of it because. that was a traffic related limitation. . Now that we have shown that 43% of the project for office can live within the limitations of the TPO analysis, that analysis shows you do not need a limit on that portion of the building because then you would be putting an R and D limit on an office section. . From our standpoint, when we come in.with an R and D use, we will show staff the way in which, it meets the R and D criteria. . . When we have a business license and /or tenant that would be an office use, we would not go through that process as it will be submitted as an office use, but we will help with the accounting to make sure which uses will be office and which ones will be R and D. . Regarding the letter that was received by the Commission from an adjoining property owner, she noted her surprise at hearing those concerns because one of her responsibilities of representing the client is to not only assure that an approval was obtained, but that the client lives with those conditions of approval and is aware all of the regulations. To find out some three years later that there was some reported infractions of the hours of limitation for construction or that somehow we were not thoughtful in terms of our neighbors is disconcerting because if the landowner or I had been notified, we would have made sure that our contractors were obeying all of the requirements. There was one call that came to the owner and that resulted in a reprimand to the contractor and as far as we knew the problem had been resolved. However, there is no construction proposed for this application and the only construction now is tenant improvements. There was a notification to us as a result of this letter that the placement of the construction dumpster was along Dana Road. I called the contractor today and asked if they could move the dumpster and the portable toilet that was there. That happened by noon today. file : //H:\Plancomm\2004 \0506.htm Page 7 of 26 05/21/2004 Planning Commission Minutes 05/06/2004 Page 8 of 26 . The fence that was erected along Dana Road across the street from the residential properties was done because the planting that occurred on the slope that goes down to Dana Road was being eroded by neighbors who were climbing over the planter because they were parking their car over night in our lot. Kids were using their skateboards to come across the lot down over the planter and on to the street. It was an unsafe condition, was disruptive and it destroyed the landscape. We put the fence up in an effort to shield the infractions there, but we would be willing to provide some screening along the fence in the form of vines. Martha Farrington, resident of Dana Road noted that she has been negatively impacted by this project from the beginning. She noted her letter sent to the Planning Commission: • The property values and impacts have been ignored. • This project is an expansion on the R and D use that existed when the neighbors bought their units on Dana Road. .. Construction has been on -going and she_ had complained to _.... - _. . the contractors and architects. _ ,... . At 5 a.m. there are construction workers unloading their trucks, dumping stuff in the dumpsters, etc. • . Ignoring the residential uses across the street is unconscionable in our opinion. • The impact of trash, noise and the traffic that is due to the use of Dana Road as a shortcut between Superior Avenue and Hospital Road is not acceptable. • Her garage door has been smashed twice due to people turning around in her driveway. • We object to any amendment to the use permit particularly if it is going to increase the number of people on the site and traffic in the area. • We request that there be some enforcement of this continuous disruption in our lives. • The landscaping is a problem as well as the height of the building. People can look directly into our bedroom windows if the curtains are open. • The lights from the parking lot at night are disturbing. • The dumpsters placed on our street have been a misery. • The trees are tall eucalyptus trees that do not block the light file: //H: \Plancomm \2004 \0506.htm 05/21/2004 • • Planning Commission Minutes 05/06/2004 and in fact were pruned back last week to the point they are bare branches. . The noise bounces off the sides of the buildings to our residences. Peggy Peranteau, resident of Dana Road, noted the following: • Dana Road is used a shortcut from Hospital Road that impacts our area. • Anyone using that facility will be using that road to enter the site. • The traffic study should have included that intersection because that will be the road used for ingress and egress. • At 5:05 this morning there were construction workers banging away getting ready for their day. • It is,an inconvenience to get up that early every morning. . The trash and portable potties was very blatant on Dana Road, and should have been put towards the garages which would not have inconvenienced anyone because no one is there. . She was the only homeowner in my association that received a notification on this item. No one was aware of this meeting. . They have not been good neighbors and have tenants that use the building 24/7. . At Commission inquiry, she noted she did not know if the portable potties and dumpsters had been moved as she came right from work and has not been home yet; she had not notified the police about the problem as she has to get ready to go to work in the mornings. Ms. Temple noted that as an initial first step, a formal complaint in writing should be sent to the Code and Water Quality Enforcement Division at City Hall. They will schedule site visits at the hours the violations may be occurring a couple of times to observe and document. They will then send a notice of violation and administrative citations can follow if the notice is not enough. The other place to call is the Newport Beach Police Department. Vicky Valsito, resident of the city noted her agreement of the previous speakers regarding the dumpsters. Phil Arst, distributed a letter to the Planning Commissioners, noting: file: //H:\Plancomm \2004 \0506.htm Page 9 of 26 05/21/2004 Planning Commission Minutes 05/06/2004 • He filed a complaint on Newport Technology Center regarding a rental two years ago. • Objects to the traffic study. • Questions the legality of the proposed land use. • Noted the futility of trying to enforce a poor application for the area in close proximity to Hoag Hospital and a number of residences. • Inadequate parking. • Traffic analysis is inconsistent with City of Costa Mesa data. • Special exemptions are not warranted and make violations of new use permit feasible. • Violates State law. ...General Plan does not permit general office uses except urder.very specific limitations. • Poor planning and not the highest and best use for the property- . Adds traffic congestion to interfere with ingress /egress to Hoag hospital. • At Commission inquiry, he noted the ICU numbers given by Costa Mesa were projected for sometime in the future. • He asked that this item be continued to allow time for the Planning Commission to read and study his letter. Commissioner Cole asked about the parking shortage mentioned in Mr. Arsts's letter, the current parking provided on site is 1,336 spaces. Is that accurate? Mr. Campbell answered that 1,336 is accurate for the number ofl parking spaces available on site. This number is adequate for the . application. Public comment was closed. Commissioner Tucker addressed the issue of the General Plan not providing for the uses that are being sought in terms of general office. In reading the general industry designation in the Land Use Element, it says, 'this land use category has been applied to those areas which are predominately used for research and development, manufacturing and professional services. Permitted uses include manufacturing, research and development, Page 10 of 26 file: //H: \Plancomm \2004 \0506.htm 05/21/2004 • 0 Ll Planning Commission Minutes 05/06/2004 • warehousing, wholesale, sales, professional service offices, service retail and restaurants.' Is it staffs opinion that general office is subsumed in this general description of the types of uses that are contemplated in the land use element? Ms. Temple answered, yes. Continuing, Commissioner Tucker noted that the previous speaker was getting . at a distinction between the general office and professional service offices and research and development. Is it staffs opinion that professional service offices contemplate the same type of uses as general office? Ms. Temple answered yes, and that was done using the traditional and typical planning hierarchy analysis where the General Plan is a general statement of the types of uses desired and the zoning then provides the precise level of implementation of the goals of those land use categories. With professional services offices a permitted use in the Land Use Element of the General Plan industrial class and with professional and business offices a permitted use in the M1A district, which is the implementing industrial district, we feel very confident that this portion of office request is permitted by both the General Plan and the Zoning Code. Commissioner Tucker noted that it is basically staffs opinion that the concept of professional offices intensity of that use is the intensity of general office use and therefore you do not expect the exact words necessarily to be in the land use element as are in the Zoning Code. Ms. Temple noted that the update of the verbiage of the Land Use Element in 1988, staff simply used the same words that were in the original 1972 Land Use Element and did not change them because staff did not perceive that there were any conflicts. Commissioner Tucker noted that 57% can be used for R and D, and 43% used for office. We don't get into the business of determining what the market place is demanding. We base parking on what the applicant has applied for. It is up to the applicant to comply with the uses that are set forth. We don't have the authority to make up a different parking code than the one that is already in the Municipal Code. Ms. Temple noted that the precise percentage bears no relationship to any city analysis as to market. It is what is necessary in order to make the project comply with the General Plan and Zoning Code. Commissioner Tucker noted that a, 'highest and best use of the property,' is not something the Planning Commission has the • authority to judge. Some of the other issues raised: . I can see the shortcut to Dana Road being used. Page 11 of 26 file: //H:\Plancomm \2004 \0506.htm 05/21/2004 Planning Commission Minutes 05/06/2004 The protocol of traffic studies is level of service, not whether there is an increase in traffic. If there is an increase in traffic and the road is able to handle the traffic increase, there is nothing in our codes to say that road can not be used for that purpose. I see an increase in traffic, but I believe it would be significantly more if that became a medical office building. Ms. Hoffman noted the following: . The client has indicated that there is security on site and we will be happy to ask him to enforce these provisions. We will begin our own enforcement procedures immediately and are happy to work with code enforcement people. There are permanent trash enclosures are emptied twice a week during normal business hours and kept clean and orderly. The dumpster that I think was causing the problem is a construction dumpster that was placed thoughtlessly and I had it moved today. It has been made clear that side of the property is to remain clear. -- . Weagree to put vines- on- the .fencing. Page 12 of 26 Commissioner Eaton noted that he was uncomfortable with at least one of the proposed findings in the proposed Resolution - specifically the one that states that the project, together with cumulative projects, was found to have no traffic impacts on any of the intersections studied. He indicated that he felt uncomfortable with that because Engineering staff had indicated at the meeting tonight that they had not looked at the cumulative impacts of either approved but not yet completed projects, or other approved projects, in analyzing the Costa Mesa intersections. He stated that he was OK with the project as a whole, however, because of the additional surplus in parking that would be available to handle the R & D uses, and because he is convinced that, ultimately, the project won't be completely successful until it is converted to accommodate medical office uses; and he thinks that will not be that far out in the future. At that time, hopefully, the project will be entitled more thoroughly, with changes to the General Plan Industrial designation, a change to the General Plan FAR ratio, additional parking provided on site, and a new TPO study that will look at all the affected intersections with all the cumulative traffic. He concluded by stating that inasmuch as he views this application as an interim solution, he would support this application in order to help the project get some occupancy in the meantime." Mr. Campbell noted that the number on condition 37 should be 1,120 (57% of 1,965). Motion was made by Commissioner Eaton to approve amendment to Use Permit No. 3679 and approve Traffic Study No. 2003 -001 subject to findings and conditions of approval including modification to condition 37 and additional condition for vines on the chain link fence. file: //H:1Plancomm\200410506.htm 05/21/2004 0 0 0 Planning Commission Minutes 05/06/2004 Page 13 of 26 • Ayes: Eaton, Cole, Toerge, McDaniel, Selich, Kiser and Tucker Noes: None Absent: None Abstain: None SUBJECT: Blackie's by the Sea (PA2004 -058) ITEM NO. 3 2118 W. Ocean Front PA2004 -058 Request to amend Use Permit No. 3607 to extend the closing time Approved for a bar to 1:00 A.M., seven days a week. Mr. Ramirez confirmed that the Commission received three letters that were distributed to the dais. Staff did a check for hours of operation for similar establishments on the peninsula. Sally Fry, president of Blackie's By the Sea, Inc., noted the following: . The establishment was opened in 1955. . . They have owned and operated the business for 40 years. e The building was recently sold at the beginning of the year and the new owner increased the rent from $4,000 to $6,000 and will increase 2% per year hereafter. . With all other costs increases, the rent increase has caused financial hardship. . Increasing the hours will allow us to meet the financial obligations and enable us to keep the doors open. . We run a clean operation with few problems necessitating Newport's resources. . Our employees have been with us many years, some 29 years. . Our customers are locals. . We are a beach bar atmosphere without the rowdiness. . At Commission inquiry, she noted she agrees to all the conditions of approval. file: //H:\Plancomm\2004 \0506.htm 05/21/2004 Planning Commission Minutes 05/06/2004 Charles Brott, past president of Blackie's By the Sea, Inc. at Commission inquiry noted that the hours were imposed by the City Council that he had accepted in order to have the Type 48 license. Ms. Temple noted that the then existing hours were made conditions of approval as part of their ability to change the ABC license type. Les Bobbitt, manager of Blackie's noted that the operation is a clean run establishment. The Police Department has never called on them. He noted that it is better to have the bars in the one. location. The extra hours shouldn't be a problem because if people don't get served at our bar, they will go to another bar and get served. You will still have the same amount of people in that area, whether served at our establishment or someplace else. John Loomis of 30th Street Architect, consultant noted the following: . He distributed a summary of hours. ofoperation of other bars in the immediate area. . Many of the establishments in the area do not have a Use Permit and have been grandfathered. . The owner has a financial hardship. . Blackie's is not looking to change any other part of the operations and is looking to be at a level playing field the same as other bars in the area. . The owners have reviewed the conditions and agree to all of them. Public comment was closed. Chairperson McDaniel confirmed with staff that the summary just received was for hours of operation of other establishments in the area. Mr. Ramirez noted that there are a lot of other places that are restaurant types that serve alcohol and beer and that the summary is accurate on the places that are more late night bars. He would add 'The Blue Beet', that has no limitations except for their rooftop dining which must close at midnight. Commissioner Cole asked about residents upstairs from the bar. Mr. Ramirez answered that the whole building in that block is a Page 14 of 26 file: //H:\Plancomm\2004 \0506.htm 05/21/2004 • E • 0 Planning Commission Minutes 05/06/2004 mixed use building so there are some apartments upstairs, approximately 10 to 15. Ms. Temple added that in the McFadden Square there are a number of buildings that were originally constructed with ground floor commercial and second floor apartments. On the ocean front, in addition to this building, two others with that configuration, (2100 Oceanfront and the Portofino Inn) which have since had the residential portions converted to hotel occupancies. While they may be considered commercial, they are still over night occupancies for more residential type uses plus throughout the whole area there are 2nd floor apartments. Motion was made by Commissioner Toerge to approve an amendment to Use Permit No. 3607 to extend the closing time for a bar to 1:00 a.m. seven days a week. Ayes: Eaton, Cole, Tucker Noes: None Absent: None Abstain: None Toerge, McDaniel, Selich, Kiser and Page 15 of 26 SUBJECT: Josh Slocum's Dinner & Supper Club (PA2003- ITEM NO.4 220) PA2003 -220 2601 W. Coast Highway Approved A request for a Use Permit to expand a legal nonconforming restaurant by providing periodic lunch service, increasing the occupancy and allowing a nightclub operation with live entertainment and dancing between 9:00 p.m. and 2:00 a.m. each night. The request also includes a modification of minimum parking requirements since the use does not provide code required parking. Rosalinh Ung, Associate Planner, summarized the staff report noting a slide presentation: . The site is narrow and deep, approximately 10,000 square feet with a building of approximately 4,000 square feet. . 13 parking spaces are provided on site. . Access to the site is off Coast Highway with the drive approach between two properties and has a unique access. . The floor plan with the restaurant arrangement shows the file: //H: \Plancomm \2004 \0506.htm 05/21/2004 Planning Commission Minutes 05/06/2004 majority of the area is designed for dining purposes with several levels: main dining area, upper dining area by the fireplace and the lower dining area toward the rear of the property was a patio, but has since been enclosed. . The proposed occupancy for this floor plan is for 143, which is an increase of 10 occupants more than currently approved by the Building Department (133). . The proposed nightclub arrangement floor plan has the main and upper dining areas turned into dance floors. Should the application be approved, this floor plan has to be clearly depicted and identified. The lower lounge area would be set up for dining with tables and chairs. . The proposed occupancy for the nightclub arrangement is 190, which does not include the employees. . The front entry to Josh Slocum has some parallel parking and angled. parking. . There are three boat slips at the back with access via the gangway on the side of the establishment. . The existing bar inside the establishment is an arrangement that has been there for many years. . There are two sets of resolutions attached to the staff report. One is for approval of the entire application, the nightclub and restaurant. The second is for approval of the restaurant only. There have been changes made to these resolutions and were attached to the memo dated May 4th that had been faxed to the Commission. She then noted condition 8 of the resolution for approval of the restaurant and nightclub, the last sentence is to be removed. Commissioner Eaton asked for clarification of what is officially authorized, what the stipulation authorizes and what approval of the restaurant would add in addition to that and what approval of the restaurant and nightclub would add. Ms. Clauson answered that staff believes, and it is the City's position, that: . The grandfathered use was a restaurant with a smaller bar area. . They did not have any permitted use for any live entertainment, or dancing, or operation as a nightclub. Page 16 of 26 file: //H:\Plancomm \2004 \0506.htm 05/21/2004 u Planning Commission Minutes 05/06/2004 • • The City filed a lawsuit to stop the continued operations that were outside of the historical grandfathered use. • During that lawsuit, we entered into a stipulation and the City agreed to dismiss the lawsuit without prejudice at that time in exchange for the applicant's agreement to process a use permit to gain the approvals that they needed to operate the way they wanted to. • The agreement at that time was that they would continue to operate under their historical grandfathered use but did not have the right to operate as a nightclub, to have dancing or live entertainment until such time they obtained approvals to do so with the exception of having a special event permit to have those on two occasions so that acoustical testing could be done to determine what conditions the operation could operate. • The dancing has continued and is continuing without authorization. Ms. Ung added: • The approval of the restaurant would approve an increase of occupancy of ten bringing it to 143 from 133. • The approval of the nightclub and the restaurant would approve the occupancy up to 190 and live entertainment and dancing. The 190 does not include the employees. • The restaurant includes a general alcoholic beverage permit. Commissioner Selich noted that the staff report states the Commission has two options. Do we not have the option to leave this as it is? Ms. Temple noted that is an option, but staff felt that since the applicant was able to accomplish the additional parking to support the additional occupancy in a manner similar to what had previously been approved, we did not have a problem with that. However, the Commission can deny the application and leave the operation stay as is. She added that this use permit is not a use permit pursuant to the Alcohol Beverage Ordinance (ABO), so we took out the ABO standard conditions in the revised resolution for approving the restaurant. Commissioner Eaton asked if condition 30 could be added back in even if this is not specifically an ABO request. file: //H: \Plancomm\2004 \0506.htm Page 17 of 26 05/21/2004 Planning Commission Minutes 05/06/2004 Ms. Temple answered that the conditions should relate nexus wise to the request, however, you could add it. Bill Hodge, of Hodge and Associates, representing the applicant Random Interactive, noted the following: He has worked with staff for several months to refine the original application. He had retained a noise consultant to analyze the noise emanating from the restaurant when the live entertainment was taking place and that was done last June. The noise study indicated that the noise from the restaurant was within the City's standard for exterior noise in the areas that were measured. We are willing to accept conditions as they are proposed in terms of sound attenuation for the establishment to make sure that noise from the establishment is ameliorated. . We have met the parking requirements and the three additional spaces that are subject of a waiver request may not be necessary as the owner plans to eliminate two of the boat slips behind the restaurant as of June 1st so that will be down one parking space under what is required. . We offer dinner later than 9:00 p.m., so it is a dining and drinking establishment. In the upper lounge area, people are allowed to eat dinner while dancing and entertainment would take place after 9:00 p.m. . We have reduced the. occupancy from the original submittal down to 190 as mentioned tonight. . He asked that the applicant's request for a restaurant and nightclub be approved. At Commission inquiries, Mr. Hodge stated: *Employees park either at the municipal lot behind 'Margaritaville' or on the street. The establishment has had a disc jockey on some nights with dancing since the original stipulation as it is an economic issue. They have come forward now because they want to secure a use permit in order to operate under the City's guidelines and address problems that have been a concern to the City. Page 18 of 26 file : //H:\Plancomm\2004 \0506.htm 05/21/2004 • • • Planning Commission Minutes 05/06/2004 It is an unusual piece of property and in order to have a dance floor, it is necessary to move some of the tables and chairs out of the restaurant to accommodate a dance floor. The interest in having the upper dance floor was to try and make the capacity work in terms of the aisles that were needed for a safe exit in case of emergency. Access is controlled into the restaurant for use of restroom facilities when people are waiting to get in. That control starts where the smoking porch begins. Typically people are escorted through the doors into the restaurant area, which is still in a hallway before you actually get into the dining room /dancing area. They would be taken into the restroom where there is an attendant in the restroom and then they would be escorted back out. Martin Weinberg, resident of Via Lido Nord, noted: . He and his wife have been disturbed many nights due to the drums and loud noise that emanates from Josh Slocum. . Within the past six months, went to the disc jockey area been removed from the floor. to the outside. he visited the restaurant. He and noticed that a board had The music was therefore going . As a resident across the bay, he and several neighbors are negatively affected by this conduct. . Concurrent with this, he had called the Police Department and asked them to quiet the restaurant down. After the police arrived, the noise would quiet down for a while, but then it would get louder after the police left. . He had, on two different times, police officers at his home who agreed that the level of noise was very excessive and would prevent anyone from sleeping. . He has called many, many times for the police to take care of the problem. It has been very distressing. . If there are not some restrictions placed on this establishment, there will be a lot more aggravated residents of Lido Isle and the surrounding area. . 190 people in that restaurant at one time is an awful lot of people. file: //H:1Plancomm\2004\0506.htm Page 19 of 26 05/21/2004 Planning Commission Minutes 05/06/2004 Besides the ambient noise emanating from the establishment, he is troubled by the lack of respect that the present ownership has shown with regard to the residents and to the Police Department. He read the report by the Police department and it is not flattering one. The important thing is that we are entitled to peace and quiet in our homes. Whatever you ultimately decide, it should be with keeping in mind that they have a right to make a living and we have a right to enjoy our homes and get a good night's sleep. He has reviewed the conditions in the staff report and asked that the doors be kept closed and install double paned window glass. His main concern is the occupancy level of 190 people as he believes it is too excessive. . Amplified music should be kept at a minimum as he believes drinking and dancing will be the main activity and that dining will be modest. Sheila Baker, resident of Via Lido Nord across from Josh Slocum stated similar concerns of the noise problem as the previous speaker especially since it will be every night. Maryann Baker, resident of Via Lido Nord across from 'Windows on the Bay' noted her concern of the noise as it seems amplified over the water and asked that no amplified music be allowed since the facility is so small. She asked where the measurements for the noise study were done from. Ms. Temple answered taken from 6 different outside the building, a the establishment, acr Lido Isle and by the Peninsula. that the sound study measurements were locations: within the building, immediately the balcony of the property that is east of )ss Coast Highway at the closest park on )ridge connecting Lido Isle to the Balboa Robert Baker, resident of Via Lido Nord across from Josh Slocum stated: There has to be a balancing of equity between the business versus the residents. . The applicant and its predecessor has for decades violated the rules and operated without the proper permits. Page 20 of 26 file: //H:\Plancomm\2004 \0506.htm 05/21/2004 • 0 • Planning Commission Minutes 05/06/2004 • If you make more rules it's going to constantly have the . police, constant complaints to the City, enforcement will be a problem and some of the alleged owners of the property have defied the Police Department on numerous occasions and the restaurant has had numerous complaints. There is little that can be done about it as a resident. • Nobody wants a nightclub in the back yard. This is a rowdy place. • Where are these 190 people going to go in this small area, there will be loud drunks going in and out. It is always jammed and crowded. Going in and out of the parking lot is hazardous already and allowing more people will exacerbate the problem. • They are proposing later hours, which is very bad for people who live across the bay because the noise travels across the water. You can hear the people talking. • The noise tests conducted at the park is a half mile down from where we live, and at the bridge is not effective where we live. . You can impose whatever conditions you want, I don't feel they will comply with them. • We are left with very little recourse other than to keep complaining and I think it is an insult to the Police Department to continually have to call and say Josh Slocum patrons are .making noise. Then the police go out check the noise at the restaurant, they turn it down and fifteen minutes later it is back up again, night after night. This goes on seven nights a week. It is not fair to the residents. • The property was bought as a restaurant and its use was known. They have been operating without permits and now they are asking for the permits to continue legally and expand the use. • He requested that the application be denied. Captain Tim Riley, Detective Division Command, noted the following at Commission inquiry: By having less occupancy we anticipate less problems, but • we are still going to have significant problems, as we have experienced at this location for the past several years. Page 21 of 26 file: //H:\Plancomm \2004 \0506.htm 05/21/2004 Planning Commission Minutes 05/06/2004 . We have observed violations that included dancing and since January the police have responded to 39 formal calls foi service that included vandalism, drunks, disturbances, fights. There were two significant fights inside the bar last month. One of their employees was physically attacked and knocked to the ground, the suspect had to be restrained. Another fight that originated in the hallway ended up in the men's restroom where a donnybrook ensued. They had to be separated. It is just been significant problems. Public comment was closed. Chairperson McDaniel asked for a straw poll of how many Commissioners have an interest in the nightclub approval aspect of this application. Commissioner Eaton stated that he is leaning towards disapproval as the establishment as it has caused a lot of problems as the record shows. The establishment has continued on a significant number of nights with dancing contrary to what staff believes is their right to do. The Police Department has pointed out enough specific problems that would occur with the approval that we should not approve it. Commissioner Cole concurred stating that there is enough concern with noise by the residents as well as non - compliance and would not approve a nightclub use. Commissioner Toerge noted that some of the conditions could mitigate the problems that the residents have spoken tonight. He is not prepared to deny that portion of the application in a straw vote and would like to hear from some of the other Commissioners on this matter. Commissioner Selich stated he is not in favor of the nightclub operation. In addition to the other issues that were brought up, the site is too small to increase the intensity of the use by switching from a restaurant to a nightclub bringing in additional people. There are continuing traffic problems going in and out with the existing operation, so to exacerbate it more by increasing the occupancy load and the frequency and the changeover in clientele, creates more traffic hazards on Coast Highway. He supports a restaurant there, and would prefer it to stay at 133 seats, but based on staffs comments that they feel the offsite parking agreement would warrant the additional ten seats, then will respect their conclusion. Commissioner Kiser noted his agreement with the previous Page 22 of 26 file: //H:\Plancomm \2004 \0506.htm 05/21/2004 • • Planning Commission Minutes 05/06/2004 comments. • Commissioner Tucker noted that this is a worst case scenario and maybe it will get better. A nightclub is a place where you go to drink and party. In that location it is tough to add people with all its physical problems of just getting in and out of the facility, it just doesn't make any sense there. He concurs about the restaurant with the existing capacity and would like to see them run properly what they have before the come back and ask for more. Chairperson McDaniel stated that was his point as well. He would like to see them deal with what they have got and then we will talk about anything else after that. Commissioner Eaton noted that for ten seats there is an advantage in getting all the new conditions in place. It would make it easier to enforce the operation as a whole. He would vote for an approval and if there is enough of a nexus, would put that condition on the alcoholic beverage back in as well. Motion was made by Commissioner Cole to approve Use Permit No., 2003 -036 as proposed by the applicant without the nightclub according to the findings and conditions for the restaurant only and • include that condition (30) on the alcoholic beverage as well. Commissioner Toerge noted: • Condition 22 - regarding the offsite parking agreement recordation should be recorded on the parking lot property with the subject property being the beneficiary. • Noted his concern with stretch limousines and taxi cabs accessing the site as they tend to park in the street and block the number 2 lane. • Condition 25 - regarding posting a diagram of the off -site parking lot should be of a certain size, legible and illuminated. • Condition 28 - what are the 'other corrective measures deemed necessary'? Should the signal improvement not be implemented? Mr. Brine noted that the valet parking plan has not been finalized, so staff can address the issue of limousines and taxi cabs in condition 23. He added that the corrective measures would rely on • the congestion level and current problems on Coast Highway and there would probably be changes to the Parking Management Plan to address those problems. Page 23 of 26 file: //H:\Plancomm \2004 \0506.htm 05/21/2004 Planning Commission Minutes 05/06/2004 Commissioner Tucker asked about Condition 36 allowing police officers conducting inspection of the premises at any given time. Captain Riley answered that the police requested this condition due to a violation of the alcohol beverage control limitations where there was alcohol being served after hours.. The establishment refused entry of our police officers who then had to force entry and made arrests based on that violation. It was a very uncooperative staff. This also has to do with enforcement of the Municipal Code and any other applicable ordinances that we have the authority to enforce especially having to do with after hours enforcement. . Ms. Clauson stated that a condition may not make it any better. The police have whatever rights under the alcohol beverage state law regulations and their own regulations to get access. I don't know that a condition is going to help with enforcement. Ms. Temple noted that these are all new conditions that will apply to the site. The changes were from the original proposed conditions. Ms. Temple noted that condition 30 that was deleted is a standard condition for ABO use permits or for use permits for the Alcohol Beverage Outlet Ordinance. It was incorporated into these conditions for approval, however, we have noted there is no ABO Use Permit for you and thought it appropriate to eliminate it. Ms. Clauson noted it is a nexus issue. You may not necessarily have to have an ABO use permit application before you to determine that there is a need for this condition for the operation of that business even as a restaurant. I suggest that if you want to put it in, you should. Ms. Temple noted that she would like to put in an additional finding in the resolution that would indicate that conditions of this nature are necessary because of the increase in occupancy being granted. The maker of the motion agreed. Mr. Bill Hodge stated that these changes are acceptable noting the right to appeal to the City Council. Ayes: Eaton, Cole, Toerge, McDaniel, Selich, Kiser and Tucker Noes: None Absent: None Abstain: None Page 24 of 26 file: //H:\Plancomm \2004 \0506.htm 05/21/2004 0 Planning Commission Minutes 05/06/2004 SUBJECT: Districting Map No. 25 (PA2004 -066) 3315 Clay Street An amendment to Districting Map No. 25 to establish a 10 -foot setback for 3315 Clay Street from Orange Avenue. Public comment was opened. Public comment was closed. Motion was made by Commissioner Tucker recommending approval of Code Amendment 2004 -003 (PA2004 -066) to the City Council. Page 25 of 26 ITEM NO.5 PA2004 -066 Recommended for approval Ayes: Eaton, Cole, Toerge, McDaniel, Selich, Kiser and Tucker Noes: None Absent: None - Abstain: None :« • ADDITIONAL BUSINESS: ADDITIONAL BUSINESS a. City Council Follow -up - Ms. Temple noted that the City Council initiated a General Plan Amendment for property located at San Miguel Drive and MacArthur Blvd., to multi- family residential as part of our Housing Element implementation plan; approved a Professional Services Agreement with Economic and Planning Systems, Inc. to conduct for the City an in -lieu housing fee analysis; they forwarded comments from EQAC on the EIR on a project in Irvine Business complex; a discussion of Measure S guidelines; and initiated a code amendment regarding city height and grade regulations. b. Oral report from Planning Commission's representative to the Economic Development Committee - no report. c. Report from Planning Commission's representatives to the General Plan Update Committee - there will be a meeting on Monday, May 10th at 3:30 p.m. d. Matters which a Planning Commissioner would like staff to report on at a subsequent meeting - none. file: //H:\Plancomm\2004 \0506.htm 05/21/2004 Planning Commission Minutes 05/06/2004 e. Matters which a Planning Commissioner may wish to place on a future agenda for action and staff report - none. f. Status Reports on Planning Commission requests - none. g. Project status - There is no need for the special meeting on June 24th as the Marinapark project will be heard at June 3rd at a special study session starting at 5:30 p.m. The principal purpose is for the Commission to receive a detailed presentation from the applicant, some information from staff, and for the Commission to identify issues which the Commission feels are important to be included in the staff report for the public hearing of July 8th in order to get this item on the ballot. h. Requests for excused absences - none. Page 26 of 26 ADJOURNMENT: 9:05 P.M. I ADJOURNMENT MICHAEL TOERGE, SECRETARY CITY OF NEWPORT BEACH PLANNING COMMISSION file: //H:\Plancomm \2004 \0506.htm 05/21/2004 0