HomeMy WebLinkAbout05/09/1996COMMISSIONERS CITY OF NEWPORT BEACH MINUTES
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REGULAR PLANNING COMMISSION MEETING
PLACE: City Council Chambers
TIME: 7:30 P.M.
DATE: ,
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All Commissioners were present
EX- OFFICIO OFFICERS PRESENT:
Sharon Z. Wood, Assistant City Manager,
Community and Economic Development
Robin Clauson, Assistant City Attorney
Patricia L. Temple, Planning Manager
Rich Edmonston, Traffic Engineer
Ginger Varin, Planning Commission Executive Secretary
Minutes of April 18, 1996:
Minutes of
4/18/96
Motion
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Motion was made and voted on to approve, as amended, the April 18,
11 Ayes
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1996, Planning Commission Minutes. MOTION CARRIED - 7 Ayes
Approved
Public Comments: None
Public
Coimnents
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Posting of the Agenda:
Posting of
the Agenda
Ms. Temple stated that the Planning Commission Agenda was posted on
Friday, May 3, 1996, outside of City Hall.
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Chairman Ridgeway took 15 seconds of silence in honor of Harry
Merrill, who served on the Commission for eight years and who passed
away last week.
SUBJECT The Allred Residence (Robert G. Jenkins, i
item No. 1
applicant)
• ModiiicationNo. 4433 r
rood No. 44
Ms. Temple stated that the applicant for Item 1, Mod. No. 4433 has
requested a continuance to May 23, 1996. C
Continued
to 5/23/96
Chairman Ridgeway stated, for the record, that he had met today with
people opposed to this project. He contacted them to let them know this
matter would be continued.
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Ms. Temple reported that this application for a temporary use is
brought before the Commission at her request. The Newport Beach
Municipal Code authorizes the Planning Director to issue temporary
uses not to exceed 90 days subject to the concurrence of the Planning
Commission. For this particular application, the request is somewhat
different and unusual for Newport Beach, and a more intense proposal
than those which are normally considered under the 90 day temporary
use provisions. This application is to allow a catering truck to be
established on the site of the existing Savannah Hut retail use in the
location, where the strawberry stand is today, under a 90 day permit.
The intention of the applicant is to establish a food service business in
Newport Beach with the hope of eventually finding a permanent
location in town. Staff's concern is that the placement of a mobile
catering unit on a permanent basis on a parking lot in Newport Beach
has never before been approved by the Planning Director, or this
Commission, before. Staff is requesting direction as to whether this
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type of use is that which would be considered appropriate under the 90
day temporary use provisions. Subsequent to the writing of the staff
report, staff became aware that there may be other code violations on
the property. Those are the placement of a motor home coach within 1
parking space on the subject site and, additionally, that a storage area
has been enclosed with a permanent fencing arrangement which would
normally require a building permit and that permit has not yet been
received. While these are code enforcement issues and staff will
commence code enforcement actions on these, they are not pertinent to
this request. This item is to discuss whether this particular vehicle and
arrangement is appropriate in the subject location. As a result of an on-
site inspection, however, staff is suggesting two additional conditions
should the Commission authorize the Planning Director to approve this
temporary use permit. They are contained in the supplemental staff
report, and state that the rental of any on -site surplus parking spaces to
the public shall cease for the duration of the operation of the proposed
catering truck and that the location of the catering truck shall be subject
to the review and approval of the City Traffic Engineer for pedestrian
and vehicular circulation purposes. Ms. Temple concluded saying that
the applicant may wish to make additional comments.
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Commissioner Kranzley asked staff if the property owner is a party to the
application for this temporary permit.
Ms. Temple answered that there is no formal application for these
temporary permits, it is done via letter. Staff spoke with the lessor of the
property, Savannah Hut's owner, and they are in the process of talking to
the property owner. However, that permit will not be issued unless the
property owner concurred with the request.
Commissioner Adams asked about the options for revocation of this
permit within 90 days. There are conditions of approval listed but no
findings in the staff report. If there were unanticipated problems with
granting this permit such as any of the general type problems; disruption
of welfare, etc., without the findings, can the permit be revoked?
Ms. Temple stated that a temporary permit would be revoked for non-
compliance of any condition of approval. It would not be inappropriate
for the Planning Commission to add our standard revocation condition.
Commissioner Selich asked staff what provisions are in the code for
extension beyond 90 days.
Staff answered that the Planning Director would be authorized for one 90
day extension and beyond that it must be approved by the Planning
Commission.
CommissionerAdams expressed concerns regarding waste and drainage.
Commissioner Pomeroy stated that one of the issues that concerns him is
it is stated that this is a temporary use while the applicant finds out how
this is going to be accepted. It also happens to be the location where the
businesses traditionally are very highly seasonal. In many cases,
businesses in Newport Beach will do 50% of their business during this
three month period of time. If most businesses can be open during the
summer and then not have any overhead, drive it away, during the rest of
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the year they would be very happy. He is concerned that this might set
some sort of a trend where there are temporary businesses set up during
the summer and then they go away.
Public Hearing was opened.
Mr. Rick Peterson, 101 North Bayside Drive, applicant spoke in behalf of
his business. He said that the reason for the mobile unit is that he intends
on using mobile units as catering units along with a restaurant location in
the future. This particular product and presentation of a healthy fast food
has a strong success record where he is from. If he can establish himself
during the summer with local trade, and develop the business, when he
opens a local restaurant he will have time during the summer to establish
a local clientele.
Commissioner Adams asked Mr. Peterson if he intends to keep the truck
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in that location 24 hours a day, and how drainage residue and general
clean-up will be handled.
Mr. Peterson indicated the truck will be moved to the location at 10 in
the morning and will be moved out at 6 in the evening. In accordance to
the Health Department regulations, he will be using a private commissary
to load fresh water, ice, clean and prepare the truck and in the evening
take the truck to that same location and clean up. The truck has facilities,
including water tanks, for site clean up and gray water storage.
Commissioner Adams asked where the trash bags would be stored when
full.
Mr. Peterson responded that a solution will be needed for this issue.
Commissioner Gifford asked Mr. Peterson to review the description of
his proposed long -view plans.
Mr. Peterson answered that, in concept, he would like to have one or two
trucks that specifically would be used to cater private parties or, doing
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events such as festivals in the city and county. His primary focus is to
open a restaurant within the next twelve months and then tie the truck
operation to the restaurant.
Commissioner Gifford asked if the truck would be used for just general
driving around the city, stopping at random locations.
Mr. Peterson stated that it would be possible, but that is not his intention.
He is not interested in getting into a catering route.
Commissioner Gifford furthered questioned him by asking if the
permanent facility would serve the same function as the private
commissary he will be using with respect to preparing foods.
Mr. Peterson answered that the Health Department states that the
commissary needs to be available primarily for cleaning purposes; for
gray water disposal. The commissary is also a place where the truck can
be plugged in at night to keep the refrigeration going without running a
generator, etc. The commissary will be used on a continual basis with the
truck but as far as the production, he intends to use the restaurant facility
as a production kitchen but not to clean the truck nor dispose the gray
water.
Commissioner Selich asked, if this application is approved and the
operation is successful, would the applicant seek an extension of the
temporary permit.
Mr. Peterson stated that he would like to be in operation for six months
with the truck in order to get established and create a cash flow that will
enable him to open a restaurant. His target time would be between six
months to a year to actually get the restaurant open.
In response to additional questions from Commissioner Selich, Mr.
Peterson also stated that the Health Department requires his business
address to be the commissary address.
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In response to questions by Chairman Ridgeway, discussion ensued
regarding the truck as to the age, exterior, capacities, etc.
Commissioner Thomson asked questions about whether this is a
franchise operation and discussed options for locating the business.
Mr. Peterson described his product, `Bento" as a japanese word that
means box lunch. It is a generic term, and based on his past personal
history with this type of cuisine, it is a fun, different kind of way to eat. It
is not associated with a franchise or organization.
In response to a question by Commissioner Kranzley staff indicated their
understanding that revenues would accrue to Santa Ana if that was the
business address.
Commissioner Gifford stated she has listened to Mr. Peterson's
fpresentation
and understands the financial investment. She expressed
concern that temporary permits are usually issued to accommodate some
unusual circumstances.
Chairman Ridgeway questioned if the Commission is within its
jurisdiction on this matter, asking whether the municipal code contained
any provisions regarding mobile sales.
Ms. Clauson related that Chapter 10 prohibits the use of streets and
sidewalks in the city for commercial purposes. The catering truck can
not drive around and stop on city streets and sell from the hock. But like
any other catering truck, they can use the city streets to get to a private
property and do catering work or sell from private property. Staying on
property from 10 to 6 may be something that may be a longer term use
than a catering truck driving on the property and staying there for fifteen
minutes and leaving. There is nothing in the Code other than the
preventing of the use of the streets and sidewalks for commercial
purposes.
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Mr. Dan Marcheano, owner of the Arches Restaurant and president of the
Newport Beach Restaurant Association spoke as an individual business
owner. He expressed concerns related to the competitive advantage this
business would have in relation to established restaurants with his/her set
costs.
Mr. Tom Hyans, president of the Central Newport Beach Community
Association spoke in opposition to the proposal. This opposition is based
upon concerns related to trash generation, the potential for conflicts with
the adjoining residences, the adequacy of parking on -site, and potential
traffic conflicts associated with the ingress and egress for the site.
Commissioner Selich asked the applicant if he was aware of the risk that
this was a discretionary permit.
The applicant stated that he was aware of the risk.
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Public Hearing was closed.
Commissioner Adams asked Ms. Clauson if she has an opinion as to the
need for this applicant to obtain this permit to do his intended operation?
Particularly as to the duration of use and time.
Ms. Clauson said she has been looking in the Code to see if there are any
provisions in Title 20 that discuss the commercial use, permanent parking
or long term parking of a commercial vendor within a private parking lot.
So far there is nothing she has found yet. The issue to be looked for is the
duration of use over a long period of time. It is not necessarily a parking
issue as much as it is a use issue of private property for commercial
purpose.
Commissioner Adams asked staff if the applicant went before the
Development Review Committee?
Ms. Temple answered she did not believe he did. She continued by
saying that in looking at this particular use, staff considered it to be
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substantially similar to the outdoor sales which has been considered
under use permit requirements; coffee carts, strawberry stands, and the
pumpkin patches, etc. It was a staff determination that this was of a
similar nature to those outdoor sales operations which would require the
approval of a use permit and therefore, as a temporary use, would require
a temporary use permit.
Commissioner Gifford commented to staff that this is very analogous to a
take out restaurant. She asked for staff to comment on how the
determinationwas made that there would be no requirement for parking?
Staff answered that their consideration was that it was substantially
similar to the outdoor sales establishments that are approved under those
provisions as opposed to a fast food restaurant.
Staff then reviewed the parking if the use were considered as a fast food
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restaurant.
Commissioner Pomeroy stated that after listening to all the comments
and concerns, this seems to meet all the criteria as to why this should in
fact be a temporary permit. With the concerns of an appropriate location
over an extended period of time; how the operation will go and in many
cases we are talking about things that are going to be there forever. Here,
we are talking about something that will be there for 90 days. A
temporary permit is very appropriate for this situation. It is not
committing the city to anything and if it is a problem, it goes away.
Chairman Ridgeway stated that he would not want to. see a truck there for
twelve months. The applicant should be encouraged to invest money in a
permanent location.
Motion
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Commissioner Adams made motion to deny this temporary use.
Chairman Ridgeway ascertained from the Assistant City Attorney that
the Commission has the authority to deny this application.
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Ms. Clauson stated that the discretion is clear in the provisions under the
temporary structures and use, ones that are consistent with the City's
General Plan and the health, safety, peace, comfort and general welfare of
the persons who reside or work in the neighborhood. Based upon the
Commission's findings on evidence of testimony tonight by the applicant
and the other members of the public, that this use would be contrary to
the general health, safety and welfare of the community.
Substitute
Motion
Commissioner Pomeroy made a substitute motion to approve the
temporary use with the added conditions; there is no discharge of liquids
upon the site; no tables and chairs be allowed; pedi cabs or quadro cycles
not be allowed; revocation language; the placement of vehicle would
displace only 3 parking spaces; that 3 additional parking spaces be
designated for this use on site, and any extension be approved by the
Planning Commission not the Planning Director.
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Discussion followed regarding the number of spaces to be used and
specified.
Commissioner Gifford stated that she does not plan to support this
motion and reiterated that it is inappropriate to have one particular
restaurateur to have the ability to come in and operate in a way that he
does not have to bear the burden of year -round businesses, compete
against businesses that do, and have all the revenues go to Santa Ana and
be granted an exception to do that.
Commissioner Selich asked staff if the Commission could require that
the point of sale be Newport Beach. Staff responded this would not be
possible.
Ms. Wood suggested an additional condition that this business have use
of the trash containers on -site and be able to hook up hoses to the existing
building.
Commissioner Adams stated that he agrees with Commissioner Gifford
and this was behind his motion for denial. This is not an appropriate use
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of the Title 20 temporary use provision. If the applicant was in
construction of a restaurant and wanted to open early, that might be a
legitimate use of this type of vehicle, but with Mr. Marcheano's
testimony, this is not fair to the other restaurant owners within the City.
Commissioner Selich asked Commissioner Pomeroy if the motion for
approval was for the permit of 90 days, as a practical matter, if this is
approved it will be for six or more months.
Commissioner Pomeroy stated that is why he asked for the extension to
come back to the Commission for approval.
ubstitute
lotion
Substitute Motion was called for and Failed - 4 No and 3 Ayes.
No
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Original MOTION to deny CARRIED - 4 Ayes and 3 No.
Ayes
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Vanal
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Ayes
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SUBJECT:. Alcohol Beverage Control License Procedures
Item 3
No
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Discussion of Planning Department and Police Department Procedures
ABC:..Licens
in regards to the application of conditions on Alcohol Beverage Control
Procedures
Licensing.
" Ai�cussion
Staff reported that this report was prepared at the request of the
Planning Commission. The procedures used by both the Planning
Department and the Police Department have been characterized. Capt.
Jacobs of the Police Department is present to answer any questions
regarding this matter.
Chairman Ridgeway says that according to the report, the applicant can
work with the Police Department to modify suggested conditions. Can
the applicant appeal those suggested conditions by the police
department?
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Ms. Temple answered that the way the current procedures operates, the
appeal would be through the ABC (Department of Alcohol Beverage
Control). It was her misunderstanding, previously, where she had
indicated that all conditional protests were appealable to the
Commission. The way the current Council Policy is written, a denial
would be appealable to the Planning Commission but the conditional
protest conditions are final at the level of the Police Chief but can be
requested for modification through the ABC.
Ms. Clauson clarified that there was recent legislation that gave the city
the power to designate a legislative body or a person to recommend
denial of a license. The City Council Policy was drafted in response to
that law and designated the Chief of Police to make that denial based
upon the new findings that were created out of that new law regarding
the density of alcoholic establishments or the crime rate in the area. The
Police Department has always had the opportunity to conditionally
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protest a license to the ABC.
Captain Jacobs of the City of Newport Beach Police Department spoke
to the Commission on behalf of Police Chief McDonell. His
presentation included the prerogative and responsibility to interact with
the ABC and the licensing process; attempts to minimize problems
before they happen; the City's density of alcohol licenses; time used by
the PD on alcohol related crimes; background checks on applicants/
owners /prior businesses, etc.; nature of businesses; provide information
to the ABC; meet with the applicant(s) and meetings with the
Development Review Committee. There is a list compiled by the
Police Department that resulted in a study and review of the conditions
of the ABC. This list is used to inform the applicant ahead of time as to
the conditions that might be imposed and the concerns of the PD that
might be addressed through the ABC. Decisions are not made by the
PD, but they do work closely with the ABC and they pay attention to
what the PD has to say. The PD does not always get the asked for
conditions in the licenses, but they try to be fair and meet with the
applicants which can result in changes to their recommendations. In the
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future, the Department would like to spend more time up front in
licensing and less on enforcement.
Chairman Ridgeway asked whether the Department had recommended
denial of any applications since the adoption of Council Policy K -7. He
was answered there have been no denials with 50 applications for the
year.
Commissioner Pomeroy stated that he brought this issue up as a result
of conversations with a disgruntled restaurateur. Some of the concerns
were in regards to conditions that were applied in his application that
were not applied to other applications in the City of Newport Beach.
Some of the conditions were: no discount drinks; no "happy hour'; no
glass larger than 12 ounces; etc. He is concerned that the conditions
aren't being applied evenly and that is frustrating to a business man. If
it is a proper condition, then it should be applied to everybody.
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Capt. Jacobs agreed that he makes a good point but pointed out that just
as the Planning Commission tries to differentiate between various types
of businesses, so does the PD try to differentiate between various types
of alcoholic establishments as they serve alcohol. Some conditions are
very proper for some establishments and not proper at all for others.
Commissioner Kranzley asked Capt. Jacobs what would prompt the PD
to put a condition that there would be no discount drinks.
Capt. Jacobs answered generally that would be an applicant who comes
in under Class 47 (which is a restaurant) where the operational
characteristics or building design could indicate the focus will be on
alcohol and not on the legal mix of alcohol and food. When the
primary focus of advertising is on alcohol, it's indicative of what the
real intentions are of the applicant. This is a frequent condition that
ABC imposes, regardless of the PD conditional protest.
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Discussion ensued regarding the ABC licensing control and their
issuance of a license and the Use Permit control; standardization of
conditions; and the variation between restaurants.
Commissioner Gifford commented that there may be some disparity
between the conditions applied to one business versus another business
that are serving alcohol, that certainly is not different from anything the
city does in land use all the time. We have a lot of non - conforming
uses that may be occupied by businesses that give them advantages
over another business because they do not have to meet parking
requirements. Arguably, as new applications come in, conditions in the
city may have changed, a new law may be in effect and therefore it may
be appropriate to condition the use in a way that is not applicable to
someone who got their use permit 20 years ago and has not come
before the Commission nor the ABC. She referenced a news article
which reported that 40% of the Police resources is spent in enforcing
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alcohol related violations. This is a disproportionate amount of Police
resources. Typically, the Commission puts conditions on Use Permits
for restaurants and bars, so that the Planning Commission may recall
those applications and add or modify conditions. If there is this kind of
problem, it seems unusual not to have had any feedback from the Police
Department as to specific Use Permits that might be appropriate for the
Commission to see if there are some additional conditions that might be
added to help alleviate the problem.
Capt. Jacobs related that was a good point and generally the ABC
enforcement is either a fine or suspension. Hopefully, with the new
Zoning Ordinance, the PD will be able to bring an applicant or business
owner back here to add specific conditions. This seems highly
appropriate and he suspects the reason that it has not been done is that
the communication between the departments and the Commission has
not been well and not as the PD should have done. Many of the
problems of the businesses have not been under control of the Use
Permit.
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Mr. Dan Marcheano spoke to the many good points in the presentation.
Discussion followed regarding the problems of alcohol; reputation of
the community; and problems with the list of 29 potential conditions
that the PD has come up with. He cited a few problems with these
conditions that has been experienced by many restaurateurs, as well as
the time involved in getting amendments thru the ABC. He stated that
the restaurants in the city are the number one money maker in the
community. This is a national and international destination with
promotion sponsored by several groups. He concluded by saying that
tax and revenue information generated by the restaurant industry should
be brought out in these discussions.
Chairman Ridgeway asked to see the 29 potential conditions of
approval and how they impact what is done by the Planning
Commission and he would like to see the PD and the Restaurant
Association meet and discuss compromises.
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ADDITIONAL BUSINESS:
Addtnl .
BuSinoss
a.) City Council Follow -up - A verbal report by the Acting Planning
Director regarding City Council actions related to planning - Ms.
Temple reported that the City Council completed the action on
the Amendment to the Time Share Ordinance.
b.) Verbal report by the Planning Department Manager regarding
Outdoor Dining Permits, Specialty Food Permits, Modification
Permits and Temporary Use Permit approvals -
Packet was distributed to Planning Commission for future
reference, if needed.
c.) Verbal report from Planning Commission's representative to the
Economic Development Committee - Mr. Selich reported that
there was a meeting with the residents of the nearby airport area
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who showed favorable interest regarding the draft new proposals
in the Zoning Code relative to the airport area.
d.) Verbal report from Planning Commission's representative to the
Balboa Peninsula Planning Advisory Committee - Ms. Gifford
reported that the city has authorized a consultant study and a
workshop group to be set up for the Balboa Peninsula Planning
Study. There will be four separate groups working; Central
Balboa, McFadden Square, Cannery Village, and Lido /City Hall
area. A kick -off orientation meeting for the workshop groups
will be held at the Newport Harbor Yacht Club on May 15th.
There are three Planning Commissioners who have been assigned
to participate in various groups. The groups will work
individually to talk about problems and solutions and then based
on these findings and recommendations there will be a final
public report.
e.) Matters which a Planning Commissioner would like staff to
report on at a subsequent meeting - at this time Mr. Kranzley
reported that the steering committee for the re -write of the Zoning
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Code has completed its task. The matter will come for a hearing
after formal recommendation(s) from the Economic Development
Committee and will be scheduled for the June 20th Planning
Commission meeting, barring unforeseen complications.
f.) Matters which a Planning Commissioner may wish to place on a
future agenda for action and staff report - none.
g.) Requests for excused absences - Commissioner Adams asked to
be excused on June 6th and Commissioner Pomeroy stated that
there is a strong possibility he would not be in attendance at either
the June 6th or June 20th meetings due to his business schedule.
ADJOURNMENT: 9:40 p.m.
Adjournment
MICHAEL KRANZLEY, SECRETARY
CITY OF NEWPORT BEACH PLANNING COMMISSION
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