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HomeMy WebLinkAbout06/20/2002CITY OF NEWPORT BEACH Planning Commission Minutes June 20, 2002 Regular Meeting - 6:30 p.m. Commissioners McDaniel, Kiser, Agajanian, Tucker, Gifford, Kranzley and Sellch - All present STAFF PRESENT: Patricia Temple, Planning Director Sharon Wood, Assistant City Manager Robin Clauson, Assistant City Attorney Rich Edmonston, Transportation /Development Services Manager James Campbell, Senior Planner Todd Weber, Assistant Planner Ginger Varin, Planning Commission Secretary Minutes: Motion was made by Commissioner Gifford to approve the minutes of June 6, 2002 as amended. Ayes: McDaniel, Kiser, Agajanian, Tucker, Gifford, Kranzley, Selich Noes: None Public Comments: Posting of the Agenda: The Planning Commission agenda was posted on Friday, June 14, 2002. 0 Minutes Approved None Posting of Agenda City of Newport Beach Planning Commission Minutes June 20, 2002 3617 East Coast Highway • Use Permit No. 2002 -008 (PA2002 -058) Request for a parking waiver to establish a nail salon in an existing retail center in Corona del Mar. The application requests a waiver of five of the required eight parking spaces. Mr. James Campbell, Senior Planner noted the following: • Application seeks the parking wavier of 5 spaces where 8 spaces are required. • Conversion would require parking changes to 1 to 80 square feet. • One of four required findings must be met In order to approve a parking waiver - none of which could be made. • Staff recommends denial of the application. Public comment was opened. The applicant was not available to make a presentation. Public comment was closed. Motion was made by Commissioner Selich for denial of Use Permit No. 2002 -008 (PA2002 -058) citing the findings and recommendations in the staff report. Ms. Temple noted that the exhibit of the findings for denial did not get included in the print job and suggested that copies be obtained and reviewed by the Planning Commission later in the evening. Commissioner Selich stated that the findings for denial are to be included in the minutes. Ayes: McDaniel, Kiser, Agajanian, Tucker, Gifford, Kranzley, Selich Noes: None FINDINGS FOR DENIAL PA2002- 058(UP2002 -008) FINDINGS: The granting of a parking waiver needing this use permit is not consistent with the purpose of the district in which the site is located and is not consistent with the parking requirements of the Zoning Code; will be detrimental to the public health, safety, peace, morals, comfort, or welfare of persons residing or working in or adjacent to the neighborhood of such use; and will be detrimental to the properties or improvements in the vicinity or to the general welfare of the City. The use permit pertains to a parking waiver of five of the eight required spaces in order to establish a , INDEX • Item 1 PA2002 -058 Denied • 0 • City of Newport Beach Planning Commission Minutes June 20, 2002 nail salon. The proposed nail salon is a use that would change the operational characteristics of the site and would result in additional parking demand that cannot be accommodated on the site of the proposed use, resulting in additional parking on local residential streets due to the intensity of the use and the number of long -term employees. 2. The proposed project Is not consistent with the purpose and Intent of Chapter 20.66 of the Municipal Code (Off- Street Parking and Loading Regulations), and specifically does not meet the requirements of Section 20.66.100, which sets the criteria for granting a parking waiver, for the following reasons: a. A municipal parking facility does not exist within the vicinity of the proposed nail salon. b. The proposed nail salon is located on a site with two or more uses for which parking requirements occur simultaneously. C. A parking management plan has not been prepared and approved for the site or for the surrounding area that would provide a parking management program and parking mitigation for the site or • surrounding area. d. The mandatory findings required for granting a parking waiver cannot be made in this case in that the parking demand will be at least the required spaces required for a nail salon pursuant to Section 20.66.030, and the long -term occupancy of the retail center could generate additional parking demand. SUBJECT: Balboa Island Village Inn 127 Marine Avenue • Use Permit No. 2001 -046 (PA2001 -257) Use Permit for expanded live entertainment within an existing eating and drinking establishment. Mr. James Campbell, Senior Planner noted: • A large volume of correspondence had been received by staff and has been distributed to the Commission during the past week. • A videotape has been submitted for evidence and is available if the Commission wishes to see It. • The applicant has some suggested changes to some of the conditions of approval relating to the hours of operation. • Chairperson Tucker noted: INDEX Item 2 PA2001 -257 Deemed not under jurisdiction of Planning Commission City of Newport Beach • Planning Commission Minutes June 20, 2002 INDEX • Main issue Is jurisdictional. We have a legal non - conforming use with several live entertainment permits issued and now It is shifting over to a potential use permit situation. • How does a legal, non- conforming use become subject to a use permit? • Does it mean that the activities proposed now, were not activities that were legal, non - conforming activities at some point? • Why isn't this being done through the City Manager's office and how did we gain jurisdiction over this? Mr. Campbell answered: • Changes in the characteristics of the live entertainment were deemed not minor by staff in relation to the operational characteristics for eating and drinking establishments. • Section 20.82.060 triggers a use permit for the activity If it met that criteria, which staff deemed it did. • Staff does not believe that there is a legal, non - conforming privilege to the live entertainment activities. Those activities are authorized through a live entertainment permit through the City Manager's office. Ms. Temple added that in the eating and drinking regulations section of Title 20, there are specific things set forth in the Code that are considered major or minor changes in operational characteristics. Major changes require either approval of a new use permit or an amendment to an existing use permit. A substantial • change in the character and nature of live entertainment is one of those characteristics set forth in Title 20. Ms. Clauson, Assistant City Attorney, added that the reason this is not being handled through the entertainment permit process is because the applicant is asking to do more than what that permit allows them to do. The option jurisdictionally would be if the Commission would not be in favor of expanding the type of entertainment that the applicant has proposed and granting a use permit, then we would go back to the City Manager's office. They would have to enforce, or take whatever action they would need to do, i.e., reviewing, modifying, or revoking that live entertainment permit. The applicant does not have a non - conforming right or a live entertainment permit to provide expanded entertainment than what they already have. Chairperson Tucker noted that they had a pre - exisfing right before any of these requirements came along and we do not know exactly what they were doing there before, right? Ms. Clauson answered that there is no way to determine what had been done before. However, even if they had a pre - existing right, there are two things that changed in the Code: the requirement for a use permit for live entertainment and the other was a use permit requirement for restaurants /eating and drinking establishments. That is what made it legal non - conforming. Because the live entertainment also requires a permit, once they got a permit, that established what their prior non - conforming rights were. for example, the type of permits they • • City of Newport Beach Planning Commission Minutes June 20, 2002 had received in the past was for one or two people combos, piano bars, etc. but not full bands. That Is the indication that both staff and Commission have as to what the legal, non- conforming rights are. Continuing, Ms. Clauson at Commission Inquiry, stated that the applicant was required to come in and get a live entertainment permit as it is a licensing requirement and is not a land use requirement. They have to be in compliance, particularly when there is a new owner because the live entertainment permits go with the owners. Commissioner Selich stated he disagrees with staff's interpretation on the Intensification of use. I don't think adding a drummer or guitar Intensifies the use. It will make more noise, but we have noise ordinances and licensing provisions. It Is not a land use issue and with the noise ordinances and licensing provisions to deal with It, then that is where it should fall. The crux of the Issue seems to be that the need for a use permit is due to Intensification of use and I don't see It that way. Ms. Clauson stated that the live entertainment permits have been for combos, pianos and a number of instruments. It is the way our Code is set up and is one of the ways to condition a use permit and entertainment in a facility to handle noise. • Chairperson Tucker noted that if after hearing the matter it defaults to the City Manager's office, the live entertainment issues would be appealable to the Council. Even if we don't have jurisdiction or believe that we have jurisdiction, we should go ahead and hear all the issues and make recommendations to the Council, even if we conclude it is not a use permit issue, nor an intensification of use. Continuing, Chairperson Tucker explained the procedure for the hearing: • Staff will give a brief presentation. • Applicant will present his position on the issues. • Public will be given an opportunity to respond for two minutes. • Three minutes will be spent on reviewing the video if it can be done easily at some point. The person who has spent a lot of time and effort on these petitions in opposition will have 5 minutes to speak. • Confine your talk to the issues before the Commission; we are not interested in hearing about the history from the public. Mr. Campbell noted: • Staff felt this was an intensification of use and directed the applicant to apply for the use permit. • The applicant is requesting a change in how the live entertainment is conducted. The present live entertainment permit allows for a piano, keyboard, flute and saxophone limited to inside the building as well as the • doors and windows to be closed. The applicant wishes to have guitars and drums; there is no prohibition presently on sound amplification. INDEX City of Newport Beach • Planning Commission Minutes June 20, 2002 INDEX • The applicant has indicated the hours and days of operation they wish to conduct. In hearing comments from the public and observing the use, staff felt that with live entertainment the central Issue Is the noise emanating from the establishment. • The applicant has submitted a noise study with some suggested mitigation measures including a new sound system as well as other operational items. • Staff has looked at and recommends additional measures to mitigate sound. Staff has observed that during live entertainment when doors and windows are left open, the noise emanating from the establishment does create a nuisance. There are suggested conditions of approval if the Commission believes the use permit needs to move forward. • The essence of the application is to add drums and guitars and operate Tuesday through Sunday each week. The hours requested are 9 p.m. to 1 a.m. Tuesday through Saturday and 5:00 p.m. to 9:00 p.m. Sunday. Right now there is no limit. Commissioner Selich, referring to page 6 of the staff report, asked for clarification about the establishment of live entertainment regulations and the non- conforming right the Balboa Village Inn may /or may not have. • Mr. Campbell answered that staff does not believe there is a privilege to the live entertainment. Live entertainment permits have been issued in the past. Ms. Clauson clarified that the Village Inn has a legal right to live entertainment; but that entertainment right has been established by the permits they have received. If the Planning Commission deems that is not a limitation, they can have as many instruments or people singing that they want, and it is not an expansion, then that is for the Commission to act upon. Chairperson Tucker noted that the scope of the legal, non - conforming use changes with every change in the permit. They had a right established by the permit and by amending the permit to have any group that would become their legal non - conforming use and can change at any point in time. Ms. Clauson noted that is how the Village Inn has established the prior types of entertainment that they had. Commissioner Gifford stated that the non - conforming right was articulated in the live entertainment permit (the first one issued). If they subsequently get permits that are different from the first one, then It is not necessarily a non - conforming right again. It does not maintain Its status as a non - conforming right. Ms. Temple clarified that the statements questioned by Commissioner Selich in the staff report are correct. One of the contentions of the applicant in their application is that live entertainment quite similar to that which they are desirous . • City of Newport Beach Planning Commission Minutes June 20, 2002 INDEX of performing today has on occasion been performed over the past 15 years even though perhaps the live entertainment permit did not reflect that characteristic. What these statements are saying is that the Village Inn does not have a legal non - conforming right to a type of entertainment that they have utilized over the past fifteen years if in fact it was not authorized by the live entertainment permit. The only non - conforming right they have is that which was actually authorized in the live entertainment permits. Ms. Clauson added that for legal non - conforming use it is up to the applicant to show or establish what the prior uses were. The City has issued live entertainment permits in the past that have authorized certain types of entertainment that has been limited to the types of instruments. It is my understanding that the Village Inn has never been issued a live entertainment permit that allowed them to have the kind of expanded instruments that they are requesting. That Is the reason why staff determined that It was a change in the operational characteristics. Commissioner Selich noted his interpretation Is If Lawrence Welk was playing there before live entertainment regulations then he could come back and play today. You are saying that the only non - conforming right the Village Inn may possess is live entertainment conducted prior to the establishment of live entertainment regulations. So, if he was there before that and come back today, he could • because that is what they were doing before the City had live entertainment permits. Ms. Wood added that the Issue of whether the Commission could deal with noise from people who exit the premises and are outside, is not something that is part of what is being considered this evening, which is the live entertainment permit. Our Zoning Code does include provisions for alcoholic beverage outlets and one of the issues addressed In that part of the Code is noise from people who have left the establishment and it is related to the service of alcohol. So, if that is a problem that is identified from this hearing, there are provisions in that part of the Code that we might be able to use to address that issue. Commissioner Kranzley stated his concern of the Planning Commission hearing this item. If the Village Inn is violating the noise ordinance, that is being done whether it is with a singer or with a drum. I am perplexed by an addition of two Instruments. There are a lot of people here to talk about an issue where there is a noise ordinance. I don't get the number of musicians or the number of drums. The noise ordinance is to protect the residents that surround these establishments, who cares if they have four musicians or a drum, it doesn't really matter if they are violating the noise ordinance. He then asked that the Commission be polled to ascertain jurisdictional authority. Chairperson Tucker asked to hold off on the jurisdictional issue and proceed with the substance and see if we come up with any recommendations. The matter will end up at the Council anyway. Commissioner Gifford asked if the applicant was currently in conformance with City of Newport Beach • Planning Commission Minutes June 20, 2002 INDEX the live entertainment permit he has. If the applicant is not in conformance and the Planning Commission didn't have jurisdiction, it would go back to the City Manager's office. The City Manager would not, I presume, look at an expansion of the live entertainment permit if they were not In conformance with the current one, is that correct? Ms. Temple answered no, the applicant Is not in conformance. If the Planning Commission determines this is not a significant enough change in the character of the live entertainment, and that it doesn't warrant the requirement for a new use permit, then one course of action the applicant could pursue could be a newer amended live entertainment permit through the City Manager's office to gain authorization for an expansion within whatever limits we might feel comfortable with as your determination. If you say the numbers and types of instruments are of no issue in terms of a change of character of the music, then I think that would be taken as direction and then staff would proceed with the licensing procedure. At Commission inquiry, Ms. Clauson stated that there would have to be a determination on gaining compliance with the permit if the determination would be it is not an expansion. This is the way we gain compliance, by getting a modification or a new permit for a new use with new conditions. This is not a common situation where live entertainment was determined by the Commission that the number of musicians and instruments was a legal, non - conforming right and it is not an expansion and it goes back to the City Manager to decide what . to do with it. Most of the live entertainment permits that the Commission has approved in the past had a condition that dealt with the number of instruments or the number of people who can play. Their current permit has specific numbers and specific types of Instruments that can be played. Commissioner Kranzley asked for a straw vote of the Commissioners that this is not an issue that is within our jurisdiction and not an issue that we can vote on tonight. Commissioner Kiser stated: • Ready to hear this issue tonight. • Is allowing dancing something that we would approve tonight? • Is the applicant in conformance with the noise ordinance and their live entertainment permit? • The City Attorney has advised that we have jurisdiction and our Planning Director has given us the citations and the staff report includes information for us to act tonight. I would hear all the testimony and make a decision. Ms. Temple answered: • Section 20.82.060 discusses the changes in operational characteristics of an eating and drinking establishment, which may require new permitting. • Section 82 states the introduction of live entertainment consisting of 3 or more individuals, or live entertainment performing with amplified sound, or dancing, or a significant change in the character of the live entertainment constitutes a major change in operational characteristics.. • • Introduction of dancing, not a historic non - conforming use of the property, . City of Newport Beach Planning Commission Minutes June 20, 2002 would require a use permit. Applicant is requesting special. event permits as well as a cafe dance permit 6 times a year. They are not asking for dancing all the time. With regard to conformance with the permit and enforcement, the Planning Director had issued a temporary permit to allow for a 90 -day period on the expansion of the live entertainment. This was to allow sound measurements and acoustical study within the actual facility. That permit has since expired, yet the applicant has continued with that form of live entertainment. We have been dealing with the premise principally through the community noise ordinance and have Issued Notice of Violations for the property when they have conducted live entertainment with either the doors or windows open or when there was a significant amount of noise coming out of the facility. This has been dealt with as a noise issue and not as compliance with the specifics of the live entertainment permit pending the decision on this issue. Commissioner McDaniel stated If there is a chance that we can mitigate some of the Issues he is willing to hear this item. Commissioner Agajanian stated he does not see this as a distinction between who • has jurisdiction as much as which jurisdiction we want to push this to. Based on the evidence, I would support staff's findings that there is a significant change going on here. The Village Inn is moving away from a restaurant with secondary music to in some cases a nightclub with full music rather than strictly a restaurant. There is a significant functional change but I don't want to wrap that up in a use permit. I would like to see the jurisdiction go to the noise ordinance and move back to the live entertainment permit with the City Manager. My straw vote at this time would be to not hear the testimony this evening and let it go to the City Manager and then eventually to the City Council if that is the case. Chairperson Tucker stated he would like to hear the testimony. I don't think it is our jurisdiction, however, all these people are here and we can establish a record for the Council to look at. Commissioner Gifford noted that if the Commission decides that this matter is not within our jurisdiction then it would not serve any purpose to hear public testimony tonight. Ms. Clauson stated that the alcoholic beverage ordinance talks about when a use permit is required. We have a lot of legal non - conforming uses in the City that do not have a legal non - conforming right to conduct a nuisance. One of the provisions is that a use permit will be required when there is a substantial change In the operational characteristics. One of those substantial changes is when the Planning Commission finds that the outlet is operating or is maintained under objectionable conditions. Once those conditions have been identified per the provisions of the • Code, then the operator is provided notice and given thirty (30) days to fix those conditions. If that is not done, then the Commission is to hold a hearing on the INDEX City of Newport Beach Planning Commission Minutes June 20, 2002 objectionable conditions and make a determination if a use permit should be required. The Commission can make that determination of what those are and provide notice. If enough information comes out in this particular meeting, that Is the process that the Commission would decide. Motion was made by Commissioner Kranzley that the Planning Commission does not have jurisdiction over this issue. Ayes: Agajanian, Tucker, Kranzley, Selich Noes: McDaniel, Kiser, Gifford Motion was made by Commissioner Kranzley that since it had been determined that the Planning Commission does not have jurisdiction over this Issue then public testimony regarding this item should not be heard. Ayes: McDaniel, Kiser, Agajanian, Gifford, Kranzley, Selich Noes: Tucker SUBJECT: Thaifoon Restaurant #3 857 Newport Center Drive Use Permit No. 2002 -018 (PA2002 -082) Request for a Use Permit pursuant to the Alcoholic Beverage Outlet Ordinance (ABO) to authorize the sale of alcoholic beverages for on -site consumption at a proposed restaurant to be located within Fashion Island. Public comment was opened. Mr. Michael Chow, 3991 MacArthur, representing the applicant asked that this item be approved. He noted agreement with the staff report. Public comment was closed. Motion was made by Commissioner Kranzley to approve Use Permit 2002 -018 (PA2002 -082) by adoption resolution entitled: "A Resolution of the Planning Commission of the City of Newport Beach approving Use Permit No. 2002 -018 (PA2002 -082) for property located at 857 Newport Center Drive.' Chairperson Tucker noted that the Condition 7 should have the word to added. Commissioner Kiser noted that condition 19, ' ....as a restaurant and as a bar /nightclub operation after regular meal service ceases in the restaurant.' We have meal service throughout and do not have the bar /nightclub, is that correct? It directly conflicts with condition 12 providing that the restaurant have full menu food service at all times. 10 INDEX Item 3 PA2002 -082 Approved • •. • • City of Newport Beach Planning Commission Minutes June 20, 2002 Mr. Weber answered that condition 12 is the reigning condition and condition 19 INDEX should. be modified to conform to condition 12. Commissioner Kiser asked for clarification of condition 13. It was determined to be satisfactory. The maker of the motion agreed to the edits in condition 19. Ayes: McDaniel, Agajanian, Kiser, Tucker, Gifford, Kranzley, Selich Noes: None SUBJECT: Media Spot Item 4 1550 Bayside Dr. PA2002 -077 • Use Permit No. 2002 -016 (PA2002 -077) A request to waive the off - street parking requirement resulting from the enclosure of Approved an existing 383 square foot open patio to additional building space. The size of the addition requires 2 parking spaces be waived. • Commissioner Kiser recused himself from this item. Public comment was opened. John Douglas, consultant representing the applicant noted their agreement with the staff report and asks for approval. Public comment was closed. Motion was made by Commissioner Kranzley to approve Use Permit No.2002 -016 (PA2002 -077) subject to the findings and conditions of approval attached as Exhibit No. 1 through the adoption of Resolution No. 1562 entitled, "A Resolution of the Planning Commission of the City of Newport Beach approving Use Permit No. 2002 -016 and granting a waiver of the off - street parking requirements associated with property located at 1550 Bayside Drive." Ayes: McDaniel, Agajonian, Tucker, Gifford, Kranzley, Selich Recused: Kiser SUBJECT: Verizon wireless Item 5 1155 Camelback Street PA2002 -075 Use Permit No 2002 -015 (PA2002 -075) • Request for a Use Permit to allow the installation and operation of an unmanned wireless telecommunications facility on an existing Southern California Edison sub- Approved • 11 City of Newport Beach Planning Commission Minutes June 20, 2002 station site. The proposed new monopole tower will be 50 feet in height which exceeds the base height limitation by 18-feet. Zoning Code Section 20.65 permits structures up to 50 feet in height upon approval of a Use Permit. Ms. Temple noted that the Planning Department received one letter of opposition to this request. Public comment was opened. Michael Blackwell, with Americom Corporation on behalf of Verizon Wireless noted that they have read and understand the findings and are In agreement. He commented that he was most appreciative of the way staff handled this application and that it was handled very professionally and efficiently. Chairperson Tucker asked for Inclusion in condition one, '...of a 2 foot width monopole.... and remove 'plot plan and floor plan', as they do not apply. Public comment was closed. Motion was made by Commissioner Kranzley to approve Use Permit no. 2002 -015 (PA2002 -075) by adopting Resolution No. 1563 entitled "a Resolution of the Planning Commission of the City of Newport Beach approving Use Permit no. 2002- 007 for property located at 1155 Camelback Street (PA2002 -047) as amended.' Ayes: McDaniel, Kiser, Agajanian, Tucker, Gifford, Kranzley, Selich Noes: None YM• SUBJECT: Mortazavl Triplex 1324 W. Balboa Boulevard Modification Permit No. 2001 -109 (PA2001 -193) Request for an addition and alteration of an existing non - conforming triplex. The existing triplex is non - conforming due to the fact that it is located in the R -2 District where two dwelling units are the maximum allowed. The triplex is also non- conforming in that the property provides only three parking spaces where the Zoning Ordinance requires a minimum of six spaces (2 per unit). Commissioner Gifford stated that her reason for calling this matter up was that after seeing this as an approval in the Modifications Committee report not too long after we heard the Van Cleve residence that there were similar issues. I felt that based on what I saw, there was not much consistency with what we did and what happened at the Modifications Committee. I wanted to learn more about the situation. Chairperson Tucker asked for clarification of the issues on this item. 12 • INDEX •. Item 6 PA2001 -193 Modifications Committee Derision Reversed • • City of Newport Beach Planning Commission Minutes June 20, 2002 Mr. Campbell noted: • The Modification Permit was approved and authorized the addition to a triplex. • The addition is approximately 18 by 20 and was recently built without permits. • The triplex Is non- conforming in three ways per Chapter 20.62: parking, non - conforming structure because it does not comply with setback standards and a non - conforming use because there are three units on a property that is designated for two units (R -2). • Non - conforming structures are dealt with through Section 20.62.40. • Non - conforming uses are dealt with through Section 20.62.50. • Non - conforming parking is handled through Section 20.62.60. • Modest expansions are allowed subject to permit requirements, one being a Modification permit, and a Use Permit is required for more extensive expansions or intensification up to 75 %. • A non - conforming use could be a house in a commercial zone, an industrial use in a commercial zone or even a commercial use in a commercial district that is not expressly permitted in that district. • A non - conforming structure could be a structure that does not comply with applicable standards, i.e., building height, setbacks, etc. • With non - conforming parking you are allowed to expand that non- conforming use providing there is no net increase in habitable rooms. • There are sub sections within that Chapter to address non - conforming use. • One of the nonconformities in this situation is the number of units. • The Modification Permit allows an addition of approximately 350 square feet to the non - conforming use. Staff recommends that this determination be overturned. The Planning Commission reviewed the non - conforming chapter, the application, the staff report and exhibits, and determined that Section 20.62.050 is precedent when considering a situation with multiple non - conformities. Also, it was determined that additional square footage constitutes the expansion of the non- conforming use and is not allowed pursuant to Section 20.62.050. Monica Mraz attorney spoke on behalf of the applicant noting: • Back in 1989, this was an R -3 zone. • Pretty expensive to bring this back Into conformance, about $50,000 has been spent by the applicant for this enclosure to date. • The contractor that was hired In 1999 did not obtain the permits for the work that he did. • Since then, there are building /electrical permits obtained to bring this into compliance. • Modifications Committee has given their approval for these 300+ square feet of enclosed deck. • Request that this enclosure be maintained and allow the applicant to obtain the proper permits for the second floor addition to remain. • The applicant has performed all conditions outlined In the Modifications letter. 13 INDEX City of Newport Beach • Planning Commission Minutes June 20, 2002 INDEX Chairperson Tucker noted that the structure is there without a permit. Now, we are being asked to say that yes, permits should be granted for this. I did not hear why this should be something that we should grant you a permit for. Ms. Mraz answered that the only history is that the applicant has gotten permits since 1999 to attempt to bring this into compliance. The Modifications Committee approved this application. Commissioner Kranzley stated that the applicant already built the unit. It wasn't that he was striving to get someplace, he built a unit and now you are trying to justify the unit. It Is not that you are coming in for a permit to do this and asking to have this done, he built it. You are saying that the actions of the City Indicated that it was okay to do it, that just seems counter logical. The Modifications determination is appealable, which is why we are here. The Planning Commission can make a ruling that is appealable to the City Council. Chairperson Tucker added that it was already built before the Modifications Committee was asked for a determination. Is the background history as set forth in the staff report correct? Ms. Mraz answered she understood. At Commission inquiry, she noted that there were two contractors hired. The second contractor was hired to go through the permit process and go through it. Essentially the information is correct. Steve Briscoe, applicant noted the following: • The rear unit was built in 1926. • The forward duplex was built In the late 40's to early 50's. • These are all single - family residences; they are not apartments. • The setback issue did not exist in 1926 nor In the 40's or 50's. • The main triplex was always there, with a single- family residence in the rear and a legal duplex in the front. Commissioner Kranzley noted his agreement that you have a legal non- conforming triplex. You do not have a legal non - conforming four -plex. What we are here to talk about is the use, which is a triplex that you are trying to add square footage on. That is the issue. Mr. Briscoe added: • No increase in density. • All we wanted to do was to make the stairway legal. • Fourth unit was done by the previous owner before and was a bootleg. • The current owner purchased this approximately 1985. • No intensification because there will be the some amount of occupants living in the rear unit. Chairperson Tucker stated that this is a non - conforming use and there needs to be a statutory authority for adding square footage. The Modification Permit process • 14 • City of Newport Beach Planning Commission Minutes June 20, 2002 requires that every modification not have an adverse impact, but that is not what grants_the authority, nor can it be a detriment. My question is where do your have the authority to add the square footage? Mr. Briscoe answered that there are exceptions to the Code. If Mr. Mortazavi had a legal general contractor he would not have been led to believe that this was being done with the permits from the City. At Commission Inquiry, staff noted that the Modifications Committee relied upon Section 20.62.060 dealing with the non - conforming parking section to reach their decision. Mr. Briscoe stated that there is an existing second floor deck off of the single- family residence. I, by adding or covering that existing deck, have not Increased the number of habitable rooms. We have offered a better quality of life for the tenants. Chairperson Tucker answered that statutorily there is no authority for the Planning Commission to grant this addition and alteration of an existing nonconforming triplex. . Commission Kranzley added that this application has three non - conforming issues to deal with; those are parking, use and structure. Public comment was closed. Commissioner Selich stated: • Illegal fourth unit is in an area on the first floor. • Floor plan is rather jumbled up. Ms. Temple noted that when the' Building Department dealt with the Issue of the illegal fourth dwelling unit and the Building Code Issues related to it, all of that clean up and permitting was done with the understanding that all of that floor area existed. Because It was an existing condition, it was allowed to remain, but we agree that area could with very little effort become a fourth unit again. The applicant did take the actions at the time we required by removing the food preparation area. Commissioner Kiser clarified that the addition of the 300+ square feet was done without a building permit and that is why we are here tonight. So, without the City's process of determining whether the expansion complied with the Code, the applicant was given the option to get the proper permits or to remove the illegal construction and seek the proper permits that led to the Modification Permit. Motion was made by Commissioner Kiser to reverse the approval of Modification Permit No. 2001 -109. is Commissioner Kiser stated that his motion is based on Section 20.62.050 (A) having 15 INDEX City of Newport Beach Planning Commission Minutes June 20, 2002 to do with expansion increase and intensification of non - conforming uses. It says In essence that the use normally permitted which is non - conforming by virtue of the required conditions of the district may be expanded, increased or intensified by way of a change in operational characteristics upon the approval of a use permit. Continuing, he requested that the City Counsel give the Planning Commission an opinion on the revisions to the modification to the structure. A brief discussion followed. Ayes: McDaniel, Kiser, Agajanian, Tucker, Gifford, Kranzley, Selich Noes: None SUBJECT: JWA Settlement Agreement Extension General Plan Amendment, GPA 2002- 001(PA2001 -222) An amendment to the Land Use Element and Noise Element of the General Plan relating to the extension of the John Wayne Airport Settlement Agreement. Ms. Temple noted that staff requests that this item be removed from the calendar. Ayes: McDaniel, Kiser, Agajanian, Tucker, Gifford, Kranzley, Selich Noes: None w w w SUBJECT: Bernard A. Leckie on behalf of Robert Butler, property owner 911 W. Bay Avenue Modification Permit No. 2002 -018 (PA2002 -037) The permit requests the retention of a deck extension completed without benefit of a building permit. The deck area was formerly a solid roof patio cover that encroaches 2 -feet 10- inches into the required 10 -foot front yard setback. The extension Increases the depth of the deck 2 -feet 10- inches and maintains the required 3 foot side yard setbacks. The property is located in the R -2 District. Ms. Temple noted that staff received a lengthy report from the appellant's representative yesterday afternoon that merit analysis and response. Therefore, staff requests that this item be continued to July 1811. The applicant has retained the services of a court reporter. Chairperson Tucker asked the applicant if he would agree to the continuance. Mr. Lawrence Davidson, attorney, 537 Newport Center Drive representing the applicant stated that the applicant opposes the continuance and are prepared to go forward. Staff has all the information and facts that they need to respond to any 16 INDEX Item 7 PA 2001 -222 Removed from calendar Item 8 PA2002.037 Continued to 07/18/2002 • • • City of Newport Beach Planning Commission Minutes June 20, 2002 of the issues we will discuss tonight. Chairperson Tucker noted that the information was delivered to the Planning Commission after 5 p.m. last evening. Mr. Blair Bryant 909 /z West Bay Avenue noted that his concern that if the Commission needs more time in order to understand the information and to respond appropriately, asked that the Commission defer this item. Additionally, he stated he had not seen it either. Ms. Clauson stated that staff has not had a chance to review the additional information received at a late date and in order to provide information relative to the decision making process, staff will need time to review it. The Commission could continue this Item or allow the applicant the opportunity to make a presentation and then the Commission could make the determination if they wish to continue this item. Following a brief discussion, motion was made by Commissioner Gifford to continue this meeting to July 18th. Ayes: McDaniel, Kiser, Agajanian, Tucker, Gifford, Kranzley, Selich • Noes: None x.* ADDITIONAL BUSINESS: a) City Council Follow -up - Ms. Wood noted at the last Council meeting, Pacific Bay Homes appealed the denial of the Planning Commission and have requested that the item be continued to June 25th; the Environmental Quality Affairs Committee made a recommendation that Council have staff work on ways to deal with 'mansionization' through the General Update Committee and the General Plan Advisory Committee. b) Oral report from Planning Commission's representative to the Economic Development Committee - none. c) Report from Planning Commission's representatives to the General Plan Update Committee - the next meeting is July 22nd. d) Report from Planning Commission's representative to the Local Coastal Plan Update Committee - no meeting. e) Matters that a Planning Commissioner would like staff to report on at a subsequent meeting - Commissioner Kiser asked legal counsel to prepare an opinion on the applicability of the Code Sections dealing with non- conforming uses. . 0 Matters that a Planning Commissioner may wish to place on a future 17 INDEX Additional Business City of Newport Beach • Planning Commission Minutes June 20, 2002 INDEX agenda for action and staff report - Commissioner Agajanlan asked for a workshop on the Code Section 20.62 et al. g) Status report on Planning Commission requests - no updates. h) Project status - none. ) Requests for excused absences - none. ADJOURNMENT: 9:30 p.m. EARL MCDANIEL, SECRETARY CITY OF NEWPORT BEACH PLANNING COMMISSION 18 Adjournment • •