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HomeMy WebLinkAbout07/17/2008Planning Commission Minutes 07/17/2008 CITY OF NEWPORT BEACH Planning Commission Minutes . July 17, 2008 Reqular Meetinq - 6:30 D.M. Page 1 of 9 file:HY: \Users \PLN\Shared \Planning Commission\PC Minutes\nm07l72008.httn 08/15/2008 INDEX ROLL CALL Commissioners Eaton, Unsworth, Hawkins, Peotter, McDaniel, Toerge. and Hillgren — Commissioners Hillgren and Toerge were excused, all others were present. STAFF PRESENT: David Lepo, Planning Director Aaron Harp, Assistant City Attorney David Keely, Senior Civil Engineer Patrick Alford, Planning Manager Rosalinh Ung, Associate Planner Russell Bunim, Assistant Planner anet Brown, Associate Planner Ian Burns, Esquire of Harper & Burns LLP, Special Counsel to the Planning Commission June Ailin, Esquire of Aleshire & Wynder, LLP, Special Prosecutor for the City of Newport Beach Ginger Varin, Planning Commission Secretary and Administrative Assistant ELECTION OF OFFICERS: ELECTION OF OFFICERS The following slate of names was presented for consideration. Scott Peotter, Chairman Bradley Hillgren, Vice Chairman Barry Eaton, Secretary Motion was made by Commissioner McDaniel and seconded by ommissioner Unsworth to close the nominations. yes: Eaton, Unsworth, Hawkins, Peotter and McDaniel bstain: None bsent: Toer a and Hillgren Motion was made by Commissioner McDaniel to approve the slate o Approved officers. Ayes: Eaton, Unsworth, Hawkins, Peotter and McDaniel Abstain: None Absent: Toer a and Hillgren PUBLIC COMMENTS: PUBLIC COMMENTS Chairman Peotter presented a plaque to the out -going chairman on behal of the Commission and staff noting the valuable insight and dedication demonstrated by Commissioner Hawkins during his tenure. file:HY: \Users \PLN\Shared \Planning Commission\PC Minutes\nm07l72008.httn 08/15/2008 Planning Commission Minutes 07/17/2008 Page 2 of 9 Commissioner Hawkins thanked the Commission and staff for their recognition. POSTING OF THE AGENDA: POSTING OF THE AGENDA The Planning Commission Agenda was posted on July 11, 2008. HEARING ITEMS SUBJECT: MINUTES of the regular meeting of June 5, 2007. ITEM NO.1 Motion was made by Commissioner Hawkins and seconded by Approved Commissioner McDaniel to approve the minutes as amended. Ayes: Eaton, Hawkins, Peotter and McDaniel Abstain: Unsworth Absent: Toer a and Hill ren SUBJECT: MINUTES of the regular meeting of June 19, 2007, ITEM NO. 2 Motion was made by Commissioner Hawkins and seconded by Approved Commissioner McDaniel to approve the minutes as written. Ayes: Eaton, Hawkins, Peotter and McDaniel Abstain: Unsworth Absent: Toerge and Hillgren SUBJECT: Fury Rok & Rol Sushi Lounge (PA2005 -087) ITEM NO. 3 4221 Dolphin Striker Way PA2005 -087 Update on the revocation of Use Permit No. 3162 and Use Permit No. Removed from 005 -018. calendar Ms. Ung noted that a settlement agreement had been made between the City and the property owner and operator. A new list of conditions o approval has been made to allow a modified restaurant with live ntertainment and dancing as ancillary uses. Ian Burns, Special City counsel, at Commission inquiry, noted he does not have standing to have opposition to the resolution as he was no involved with the settlement. otion was made by Commissioner Hawkins and seconded by Commissioner McDaniel to remove this item from calendar. yes: Eaton, Hawkins, Peotter and McDaniel, bstain: Unsworth bsent: Toer a and Hill ren SUBJECT: Sejour (PA2002 -167) ITEM NO. 4 3400 Via Lido PA2002 -167 file : //Y:1UserslPLN\SharedlPlanning CommissionlPC Minutes\mn07l72008.htm 08/15/2008 Planning Commission Minutes 07/17/2008 Page 3 of 9 Revocation of use permits for an off -site alcoholic beverage outlet withl Approved accessory on -site alcohol consumption, food service and live ntertainment. r. Harp, Assistant City Attorney, recused himself from this item. portion of minutes has been provided by Precise Reporting is attached. on was made by Commissioner Hawkins and seconded b missioner McDaniel to adopt resolution amending Use Permit 2001 and rescinding Use Permit 2002 -034 on property located at 3400 V with the incorporation of additional findings (Sejour Findings of Fact ared by special counsel. Burns added to Conditions 2 and 13 of Findings of Fact by stating lease was for a bar use. Ung added another condition regarding the approval expiration timing exercised. Eaton, Hawkins, Peotter and McDaniel None n: Unsworth ITEM NO.5 SUBJECT: Powers Residence (PA2007 -176) PA2007 -176 2223 Pacific Drive Approved Modification Permit to exceed the three -foot height limitation in the front and setback to allow for a vehicular- bridge driveway, for guard - railings associated with the vehicular- bridge driveway, and for walls located at th ide property lines. r. Harp returned to the proceedings. r. Russell Bunim, Assistant Planner, gave an overview of the staff report. on Jeannette, architect for the project, referring to a PowerPoint �sentation, noted the topography, grade, front yard setbacks, patios, veways and encroachments in the neighborhood. He noted he can not t a minimum of 50 percent landscaping in front yard setback due to size lot and driveway; turf block can be added at the street level for added idscape and presented a modified plan. t Commission inquiry • He noted the turf block addition would be in the city's right -of -way ar that he would apply for the appropriate permits if this was approved; • The elevator shaft height is below the allowed height limits in tt neighborhood; file: //Y: \Users \PLN\Shared \Planning Commission\PC Minutes \mn07l72008.htm 08/15/2008 Planning Commission Minutes 07/17/2008 . The neighbors had been made aware of the proposed project; comment was opened. Kendziorski, neighbor, noted his opposition to this project: It is a loss of his property rights (harbor view) and would set precedent; . Steep hill with this size house is a safety issue; . This project is too big for this size lot. imissioner McDaniel asked about the size of new homes being built area and individual view rights. Lepo answered there are very large homes that have been built unde older regulations; however, they would not be allowed to be built todal to the policies that have been adopted in the new General Plan an( :al Coastal Land Use Plan. He added that there is no statute inance, policy or otherwise that protect private views from privat( nmissioner Unsworth noted the driveway is to follow closely ography of the lot, which would have the guardrail exceeding ximum height. What staff is recommending and the proponent is a: seems to be of little difference. Mellon, property manager and employee of the owners of 221 ty, asked about the top of ridge line with the elevator shaft heigY ing further as that is problematic. comment closed. Commission inquiry, Mr. Lepo noted: . Decisions rendered are on a case by case basis. Staff is interel in direction from the Commission on the application of some of new design standards. It would not bind you any way in determii other cases; . Distributed a resolution of approval for the Planning Commission use; . This is a unique project due to the size of the lot. Staff and applicant have not agreed on the application of the new de standards and therefore, it is to you for a determination; . Discussed the differences presented in the staff report and presentation by the architect noting the main issue is the excavi of eleven feet to the front property line is not consistent with Cri Page 4 of 9 file: //Y: \Users\PLN\Shared \Planning Commission\PC Minutes\mn07172008.hun 08/15/2008 Planning Commission Minutes 07/17/2008 No. 7. Commission inquiry, David Keely noted that turf block would eptable. The City world require an encroachment agreement for 1 idard improvements in the public right -of -way. was made by Commissioner McDaniel and seconded ioner Hawkins to approve Modification Permit No. 2008 -020 located at 2223 Pacific Drive (PA2007 -176) with modification ing exhibit 24.1 presented this evening by the applicant. comment was re- opened. Commission inquiry, Mr. Jeannette noted the planter on this exhibit we iwn at 5 feet on both sides from the property line to the face of the wal ing. He noted he would look at the height of the elevator shaft to see if old be lowered. ,sioner Hawkins noted that staff circulated a draft resolution 1, if the Commission so decided. However, the resolu :d was somewhat confusing, incomplete and inconsistent. It additional findings to make it complete. on Peotter suggested taking a 5- minute break in order to for the Commission to adopt rather than continuing this item. Commission took a five minute break. Hawkins suggested the following changes to the findings: . Fifth Whereas clause: "Whereas, cutting into a bluff as proposed by the project is consist with Criterion No. 7 of the Residential Design Criteria, wh requires...add at the end,.... in that: the project grading is stepped e approximates the bluff contour, this lot is small and steep requir the proposed grading. The site has few or no natural features biological resources." . Sixth Whereas clause: . ' Whereas, providing landscaping in the manner proposed consistent with the intent of Criteria No. 6 of the Residential Dec Criteria, ...add at the end,.... in that: the site is narrow and stet sloped, the neighborhood has hardscape outdoor living areas sc below the street grade." . Seventh Whereas clause: . 'Whereas, locating an entry door and other streetside features in manner proposed is consistent with Criteria No. 4 of the Resides Page 5 of 9 file: //Y: \Users\PLN\Shared \Planning Commission \PC Minutes\mn07l72008.htm 08/15/2008 Planning Commission Minutes 07/17/2008 Design Criteria, which requires, add at the end of the last sentence of the criteria, ...in that the project site is steeply slopped and narrow and access is provided via a stairwell. Primary entrance is provided with a clear and connecting path to a public street or sidewalk. Lepo asked about the "stepped" reference. Dmmissioner Hawkins stated the grading is not an excavation but rather it a two- stepped grading, which approximates the slope and works down in stepped fashion. Jeannette noted that the height of the shaft can be lowered by 6 :hairman Peotter noted: . Condition No. 1 shall reference Sheet 24.1 that delineates the extra landscape plan. . Condition No. 17, the elevator shaft shall not exceed 3 feet above the ridgeline. . The action is to "approve" and the date to be changed to July 17th. comment was closed. Jeannette noted that on behalf of the applicant, he accepts all the iges to the findings and conditions of the resolution. Peotter and McDaniel bstain: None bsent: I Toerge and Hillgren SUBJECT: Santa Barbara Condominiums (PA2004 -169) ITEM NO.6 900 Newport Center Drive I PA2004 -169 Page 6 of 9 la Real Estate Partners, the new owner of the Santa Barbara dominiums project, is requesting additional time to review and accep Removed from proposed development agreement. This item will be removed from th calendar ming Commission calendar and re- advertised once it is ready. Director Lepo noted this item is to be removed from calendar. was made by Commissioner Hawkins and seconded ioner McDaniel to remove this item from calendar. file: //Y: \Users \PLN\Shared\Planning Commission\PC Minutes\nm07l72008.htm 08/15/2008 Planning Commission Minutes 07/17/2008 bstain: I None bsent: Toerqe and Hillqren x x x ITEM NO.7 PA2007 -211 SUBJECT: 930 Sushi (PA2007 -211) 930 West Coast Highway Approved quest to amend Use Permit No. 3649 to allow a change in operatior aracteristics from a full - service, small -scale to full - service, low tumor ;ing and drinking establishment. A 548 - gross- square -foot expansion )posed (including 390 square feet of net public area) for the purpose widing an additional dining area and a bar. Also requested is a chan the alcoholic beverage license from a Type 41 to a Type 47, and iver of 13 off - street parking spaces that would be required for t )ansion of the restaurant. An amendment to Accessory Outdoor Dini rmit No. 54 is requested to allow an 18.5- square -foot increase to t sting 138.5- square -foot outdoor dining area. ciate Planner, Janet Brown, gave an overview of the staff report. provided additional information: A widening of Coast Highway to six lanes in this area is a fi potential proposal and is included in the Master Plan of Streets Highways in the General Plan. A total of 20 parking spaces % be lost if this were to occur. The parking lot is divided into zones and according to the parl survey Zone 10 is never utilized with the exception of 1 car during weekday. Zone 10 is located across Coast Highway and is marl "no parking at any time." Restriction of the amount of square footage used during lunch tir hours, when other uses are most busy, has not been discussed w the applicant because observation indicates the restaurant is not 1 at this time. If Coast Highway were to be widened, there is condition of approval included that references changes to on -s parking, etc. shall be subject to review by Traffic Engineer and m require an amendment to this Use Permit. Olfati, architect for the proposed project, noted they have read the conditions. City Attorney Harp noted a reference to the widening of should be included in Condition 11. Commission inquiry, Mr. Olfati stated they would reluctantly agree tricting the floor area availability during the lunch hour if the widening Highway would occur. Hawkins noted his concern of the Type 47 liquor Page 7 of 9 file: //Y: \Users \PLN\Shared\Planning Commission \PC Minutes\mn07172008.htm 08/15/2008 Planning Commission Minutes 07/17/2008 rei Leontieff, co -owner of the restaurant, stated he wants to change 47 for monetary reasons as his rent has increased and he wants all of his employees. Samardzic, co -owner of the restaurant, noted that parking t ;s of other establishments happens during the day but after 5 or parking lot is available for their customers. When the highway there still should be no problem as the other tenants are close night. y Sokolich, local resident, noted parking issues, alcohol bey rice, the hours of operation, change of characteristic and evening speakers as his concerns. im Jordan, local resident, noted his support of this application and iat businesses such as this one be encouraged along this area. Leontieff clarified there is no outdoor sounds. ordana Samardzic noted that with the closure at 11 p.m. there is otential for a nightclub atmosphere. Ir. Olfati, at Commission inquiry, stated that the length of the counter ie bar is nineteen feet and that seven stools can fit at that counter, 1 -st of the area is dining room. The purpose of the bar is to serve 1 iners and anyone sifting at the bar would be waiting for available dini eating. Brown noted that the Police Department is aware and agrees with the s noted in Condition 7. Mon was made by Commissioner Hawkins and seconded b, mmissioner Unsworth to approve an amendment to Use Permit Nc 48 and Accessory Outdoor Dining Permit No. 54 for an eating am nking establishment located at 930 West Coast Highway (PA2007 -211 :h the findings and conditions as setforth as Exhibit A. )roposed alternate motion was made by Commissioner Eaton as state) :h an additional condition that if the widening of Coast Highway is complished, that the CUP will be brought back for consideration c citation on square footage devoted to lunchtime hours. motion died for lack of a second. nissioner Unsworth made a substitute motion that was seconded nissioner McDaniel to amend Condition 11 to include widening after vehicular circulation. nissioner McDaniel noted his concern of an approval for a Type ;e that runs with the land. We have seen so many problems and not see that this project needs this license. Page 8 of 9 file: //Y: \Users \PLN\Shared\Planning Commission \PC Minutes\mn07172008.1ttm 08/15/2008 Planning Commission Minutes 07/17/2008 Page 9 of 9 Commissioner Hawkins noted he shares the concerns and with respect to he alcohol use, the Police Department has no concern with the limited hours. yes: Eaton, Unsworth, Hawkins, Peotter goes: McDaniel bsent: Toerge and Hillgren ADDITIONAL BUSINESS: ADDITIONAL BUSINESS a. City Council Follow -up - Mr. Lepo noted the City Council received and adopted a progress report on the General Plan; and, the received a status report on terms of a settlement agreement with Sober Living by the Sea Residential Care facility; b. Planning Commission reports - Commissioner Hawkins reported ED met and received a report on traffic synchronization of Area 1 i Corona del Mar up through MacArthur Blvd, which should b completed by the end of the year or early next year; there will be a appointment to fill the vacancy created by the resignation o Commissioner Unsworth. c. Matters which a Planning Commissioner would like Staff to report on at a subsequent meeting - none. d. Project status - Commissioner Hawkins asked about the Panin project. Mr. Lepo stated that an appeal by a Councilmember did no get to the City Clerk's office within the 14 day appeal period and i was opined by the City Attorney that therefore there could be n appeal hearing. e. Requests for excused absences - none. ADJOURNMENT: 9:30 p.m. DJOURNMEN BARRY EATON, SECRETARY CITY OF NEWPORT BEACH PLANNING COMMISSION file: //Y: \Users \PLN\Shared\Planning Commission\PC Minutes\mn07l72008.htm 08/15/2008 REPORTER'S TRANSCRIPT - 7/17/2008 1 (Pages 1 to 4) Precise Reporting Service 714 - 647 -9099 Page 3 BEFORE THE PLANNING COMMISSION OF THE 1 who is serving as Counsel to the Planning Commission on CITY OF NEWPORT BEACH 2 this case. Those findings were made on the assumption 3 that the Commission might want the option of approving 4 revised conditions to the use pemmt consistent with your IN RE: ) 5 direction the last time we discussed this matter. REVOCATION OF USE PERMIT ) 6 The findings were made in more detail than what NOS. 2001 -005 & UP2002 -034 ) 7 had originally been proposed, because its our PA2002 -167 ) 8 understanding that the Overstreets, the applicants, or SEIOUR EUROPEAN BISTRO & ) 9 permit holders, are not willing or not interested in LOUNGE, 3400 VIA LIDO ) 10 changing the conditions. So you, essentially, have the 11 option of changing them unilaterally. That's why we have 12 more detailed findings. 13 The other option is to just go ahead. And we 14 would suggest if you want to go with a revocation, you've NEWPORT BEACH, CALIFORNIA 15 taken the testimony, you can just discuss them amongst THURSDAY, JULY 17, 2008 16 yourselves, and take that action to revoke. 17 1 As a courtesy, anybody who wants to speak, we 18 suggest a public hearing and let them speak, but not for 19 the purposes of providing testimony, in case the attorney 20 or the applicants have any comments about any of the 21 findings for the revocation hearing. But no new 22 testimony needs to be taken. I do understand that the 23 applicants are going to be requesting a continuance to 24 the August 7th meeting. 25 So if you're interested, you have those three -- Page 2 _ - -- Page 4 1 NEWPORT BEACH, CALIFORNIA; JULY 17, 2008 1 different options. Again, adopting the resolution to 2 APPEARANCES: 2 make these findings consistent with Mr. Bums' submittal 3 CHAIRMAN SCOTT PEOTTER, COMMISSIONER 3 to you this afternoon, go ahead and deliberate, and make 4 ROBERT HAWKINS, COMMISSIONER CHARLES 4 findings to revoke or not to revoke the use permit. 5 UNS WORTH, COMMISSIONER BARRY EATON, 5 But in any event, we do understand the 6 COMMISSIONER EARL MC DANIEL. 6 applicants are asking for a continuance, so you might 7 7 want to open it to public hearing and ask them to come 8 CHAIRMAN PEOTTER: Item number 4 is Sejour. 8 up. And I think Mr. Bums also has some comments to 9 This is a revocation hearing. And this is a public 9 make. 10 hearing on the public -- well, its a public revocation 10 CHAIRMAN PEOTTER: Mr. Bums. 11 hearing to adopt the resolution modifying the subject of 11 MR. BURNS: Mr. Chairman, thank you. 12 findings and conditions, and we have a staff report. ' 12 I think Mr. Lepo did cover it pretty well. You 13 MR. LEPO: 'Mr. Chairman, this, again, is a 13 did close the hearing last time, so the hearing should 14 continuation of this item If you recall the hearing, 14 not be reopened. All the evidence is now before you. 15 the testimony's already been received on the grounds, 15 There has been some additional submittals to 16 basis for revoking the permiS and rebuttal. And that 16 you from -- possibly from staff and from the applicant, 17 testimony was provided by the defendant's attorney in 17 and those should not be considered in any decision as to 18 this case. - 18 whether or not to revoke or modify the permit. You can 19 So tonight, there's no need to open the public 19 certainly consider those for other purposes, but not for 20 hearing on the revocation testimony for purposes of 20 the main matter that is before you tonight. 21 taking more testimony on the revocation, if that's what 21 Only those persons who did hear the evidence 22 the -- if revocation is what planning conunission decides 22 should be voting on this. And I guess we have a new 23 to pursue. 23 Coxmnissioner, so he should probably abstain from that, 24 A couple of options here. I believe you all 24 unless he read all the evidence. And you certainly have 25 received an additional set of findings from Mr. Burns, 25 a resolution before you tonight, and you'd have to count Precise Reporting Service 714 - 647 -9099 REPORTER'S TRANSCRIPT - 7/17/2008 Page 5 6 l rayt- -6 J t-V O ) Page 7 1 the votes and see if there's enough to pass that 1 CHAIRMAN PEOTTER: Let's bring it back to the 2 resolution to move it on. 2 Commission just to discuss that portion of it before we 3 CHAIRMAN PEOTTER: The entire evidence that 3 open it up for public hearing. 4 you're talking about for Commissioner Unswonh — 4 Commissioner Hawkins? 5 MR BURNS: Yes. 5 COMMISSIONER HAWKINS: Thank you, Mr. Ch 6 CHAIRMAN PEOTTER: — was the staff report, and 6 I have a question of Mr. Bums. And that 7 it was in his notebook. So if he read that entire 7 question is, there was a tentative direction at the last 8 packet -- 8 hearing after we closed the public comment portion. But 9 MR. BURNS: It would require the transcript and 9 that was only tentative, and we could move to revoke or 10 all of the exhibits that were in the charging documents 10 not do anything at all; isn't that right? 11 back in March. That's really the body of the evidence. 11 MR. BURNS: That's correct. It was only your 12 It's really quite -- I have basically two volumes of 12 tentative decision. 13 evidence that should be read. 13 COMMISSIONER HAWKINS: Okay. Okay. So 14 CHAIRMAN PEOTTER: So, Mr. Unsworth, I presume 14 everything's up for grabs possibly? 75 you will abstain from that? 15 MR. BURNS: Correct. 16 COMMISSIONERUNSWORTH: Yes. 16 COMMISSIONER HAWKINS: Okay. Thank you. 17 CHAIRMAN PEOTTER: Go ahead, Mr. Burns. 17 CHAIRMAN PEOTTER, discussion. 18 MR. BURNS: I was just going to also add that 18 Mr. Eaton? 19 it would be appropriate to allow persons to speak on this 19 COMMISSIONER EATON: Mr. Chairman, I had a 20 matter but not to present evidence in the issue about 20 question for Mr. Bums, too. 21 whether or not to modify or revoke the permit but for 21 Mr. Bums, you provided the Commission some 22 purposes of asking for the continuance or challenging, 22 findings to go along with the possible modification. One 23 possibly, the findings, or the way that the decision is 23 of the conditions in the possible modification was 24 worded, or something like that, but not to put additional 24, actually the rescission, as 1 read it, of the entire 25 evidence in before the evidence before you. 25 permit granted in 2002. And I didn't sea any of your Page 8 findings that were directed to that possible condition. Should there be findings for that possible condition? MR. BURNS: The way I wrote the findings was to justify a new CUP that was modified and that would supersede the other CUPS. I wasn't sure if that was not the intent, but that's the way read it COMMISSIONER EATON: So the fact that — MR. BURNS: One new CUP would replace the two CUPs that were previously in existence. COMMISSIONER EATON: Okay. Maybe I need clarification for staff. I thought the proposed resolution was modifying the first CUP and rescinding the second CUP. Am I incorrect on that? CHAIRMAN PEOTTER: rat sorry, Mr. Chairman. Mr. Eaton, would you repeat that question? COMMISSIONER EATON: My understanding was the proposed resolution would modify the first CUP and rescind the second CUP, as opposed to granting an entirely new CUP which would supplant both of the original CUPS. Do I misunderstand that? MR, BURNS: No, that's clearly what the title is, how it's worded in the staff report. MS. UNG: That's correct Precise Reporting Service 714 - 647 -9099 Page 6 1 CHAIRMAN PEOTTER: Thank you very much. 1 2 So, then to summarize staff, basically we have 2 3 the option to revoke the CUP tonight, we can 3 4 take -- well, we can revoke, we can modify, or we can 4 5 continue, and the public hearing that we would -- public 5 6 hearing that anybody might want to help or join us in is 6 7 not for evidence in deciding whether to revoke or not, 7 8 but purely input to the Commission as far as whether we 8 9 want to modify, maybe, some of the conditions or findings 9 10 that you prepared for that modification, or whether to 10 11 ask for a continuance and give reasons for their 11 12 continuance. 12 13 MR. BURNS: That's correct. And maybe, if I 13 14 could just add that, at your last -- when you did close 14 15 the public hearing, you did determine that you were going 15 16 modify and not revoke, and -- but allow the parties an 16 17 opportunity to try to work that out. 17 18 And it's my understanding as of Monday, that 18 19 that had not occurred, and, therefore, you directed them 19 20 to come back. You had unilaterally imposed a 20 21 modification of the CUP. 21 22 That's the way you were leaning towards in your 22 23 intended decision back when you made that decision. And 23 24 it wasn't the decision that night. It was your intended 24 25 decision. That's the status of the matter. 25 Page 8 findings that were directed to that possible condition. Should there be findings for that possible condition? MR. BURNS: The way I wrote the findings was to justify a new CUP that was modified and that would supersede the other CUPS. I wasn't sure if that was not the intent, but that's the way read it COMMISSIONER EATON: So the fact that — MR. BURNS: One new CUP would replace the two CUPs that were previously in existence. COMMISSIONER EATON: Okay. Maybe I need clarification for staff. I thought the proposed resolution was modifying the first CUP and rescinding the second CUP. Am I incorrect on that? CHAIRMAN PEOTTER: rat sorry, Mr. Chairman. Mr. Eaton, would you repeat that question? COMMISSIONER EATON: My understanding was the proposed resolution would modify the first CUP and rescind the second CUP, as opposed to granting an entirely new CUP which would supplant both of the original CUPS. Do I misunderstand that? MR, BURNS: No, that's clearly what the title is, how it's worded in the staff report. MS. UNG: That's correct Precise Reporting Service 714 - 647 -9099 REPORTER'S TRANSCRIPT - 7/17/2008 .5 lrages V t_c1 icI Page 11 Mr. Stockton has testified that the Overstreets have no responsibility for the violations of this use permit They are owners of the property, and they have a vested right that, by revocation, would be taken away from them. And that's just simply not appropriate, unfair, and it's a violation of their due process when they didn't do this. And Mr. Stockton put that in the record. So at this point, they've got a lease. There's -- this lease is for a realty company called Hom Realty. It's not going to be an alcohol bar, or anything like that. So why are we having this hearing? Why don t you just let the lease or let the permit lapse? That's what we propose, absolutely. So if we -- but if we can't do that, all right, then, for the record, we object to these findings, because we think these findings that are being proposed here are defective. And from a legal standpoint, they we particularly defective. At the end, I think the finding is, and the Corrimission is asked to make a finding, that the Overstreets are responsible for the conduct of then tenant. And I realize that it's not a court of law, but I submit to you that that's completely contrary to the law. Page 12 So if this happens here, they get their vested rights taken after investing literally hundreds of thousands of dollars into this location. We all know what the next step's going to be, so why go there when we can just let this lapse? They do not want the stigma They have been in the restaurant business, the bar business, for years with an excellent reputation in Los Angeles and in Orange County. Everybody knows that they operate La Quad. Everybody knows that they did the Wine Merchant And at no time when Mr. and Mrs. Overstreet operated either one of these was there a citation. Ever. The only citation was to their tenant, which they were never given notice of to go to try to correct So let's just let it lapse. CHAIRMAN PEOTTER: Thank you, Mr. Thomas. MP- THOMAS: Mrs. Overstreet would like to have a few minutes to address you. CHAIRMAN PEOTTER: That would be great MRS. OVERSTREET: Thank you, Commissioners. I promise I'll make it extremely brief. I just wanted to say, honestly, that Dennis and I have worked incredibly diligently the last six weeks to negotiate this lease, because we really felt it was in the best interests of not only what the Planning Commission wanted Precise Reporting Service 714 - 647 -9099 Page 9' 1 COMMISSIONER EATON: So were modifying one 1 2 CUP, and yo the given us findings for most of those 2 3 modifications, virtually all of them. -But the one Pin 3 4 curious about was the condition that rescinded the other 4 5 CUP. 5 6 Do we need findings for that? 6 7 CHAIRMAN PEOTTER: Mr. Burns? 7 8 MR. BURNS: No,1 don t think so, Mr. Chairman. 8 9 Because you just have to have findings to justify taking 9 10 away the vested right the person had. And the proposed 10 11 findings would give you the evidence that you need to 11 12 modify. 12 13 I'm not sure there's a technicality that needs 13 14 to be corrected, but I think the evidence supports the 14 15 decision here youre about to make. And it should be 15 16 fine, unless there's some technicality in the way that 16 17 resolution lines up or something like that. 17 18 COMMISSIONER EATON: Okay. As lung as you say 18 19 were covered, that's all I wanted to know. Thank you. 19 20 CHAIRMAN PEOTTER: Other Commission discussion 20 21 before we open the public hearing? 21 22 (No audible response.) 22 23 CHAIRMAN PEOTTER: Okay. Well open the public 23 24 hearing. We do have a time limit, and we are interested 24 25 in hearing not new evidence but your comments regarding 25 Page 10 1 either of the optional decisions we have before us. 1 2 MR. THOMAS: Yes. Good evening. My name is 2 3 Chris Thomas, and I'm the attorney for the Overstreets. 3 4 CHAIRMAN PEOTTER: Pm sorry. You said 4 5 Chris -- 5 6 MR. THOMAS: Chris Thomas, I'm sorry. And this 6 7 is Mrs. Overstreet 7 8 CHAIRMAN PEOTTER: If you both wouldn"t mind 8 9 signing in, that would be great. 9 10 MR- THOMAS: Thank you for giving us the 10 11 opportunity to address you briefly on this matter. I 11 12 just want to say — and I think all the Counsel or 12 13 Mr. Lepo would agree with us -- that we've been working 13 14 very hard this week to try to resolve things short of a 14 15 hearing. 15 16 And to that end, I old Mr. Lepo when I came m 16 17 tonight that we have a signed lease for 3400 Via Lido I 17 18 from HOM Realty, and it's a five -year lease with options. 18 19 So the point is -- and I think erne of the Commissioners 19 20 said this, and I believe it was 20 21 Mr. Hawkins -- technically, at this point, you don t have 21 22 to do anything at all. _ 22 23 We're agreeable to simply have this use permit 23 24 lapse, because the Overstreets — everybody knows -- and 24 25 1 know the evidence is in, but everybody knows, and even 25 .5 lrages V t_c1 icI Page 11 Mr. Stockton has testified that the Overstreets have no responsibility for the violations of this use permit They are owners of the property, and they have a vested right that, by revocation, would be taken away from them. And that's just simply not appropriate, unfair, and it's a violation of their due process when they didn't do this. And Mr. Stockton put that in the record. So at this point, they've got a lease. There's -- this lease is for a realty company called Hom Realty. It's not going to be an alcohol bar, or anything like that. So why are we having this hearing? Why don t you just let the lease or let the permit lapse? That's what we propose, absolutely. So if we -- but if we can't do that, all right, then, for the record, we object to these findings, because we think these findings that are being proposed here are defective. And from a legal standpoint, they we particularly defective. At the end, I think the finding is, and the Corrimission is asked to make a finding, that the Overstreets are responsible for the conduct of then tenant. And I realize that it's not a court of law, but I submit to you that that's completely contrary to the law. Page 12 So if this happens here, they get their vested rights taken after investing literally hundreds of thousands of dollars into this location. We all know what the next step's going to be, so why go there when we can just let this lapse? They do not want the stigma They have been in the restaurant business, the bar business, for years with an excellent reputation in Los Angeles and in Orange County. Everybody knows that they operate La Quad. Everybody knows that they did the Wine Merchant And at no time when Mr. and Mrs. Overstreet operated either one of these was there a citation. Ever. The only citation was to their tenant, which they were never given notice of to go to try to correct So let's just let it lapse. CHAIRMAN PEOTTER: Thank you, Mr. Thomas. MP- THOMAS: Mrs. Overstreet would like to have a few minutes to address you. CHAIRMAN PEOTTER: That would be great MRS. OVERSTREET: Thank you, Commissioners. I promise I'll make it extremely brief. I just wanted to say, honestly, that Dennis and I have worked incredibly diligently the last six weeks to negotiate this lease, because we really felt it was in the best interests of not only what the Planning Commission wanted Precise Reporting Service 714 - 647 -9099 REPORTER'S TRANSCRIPT - 7/17/2008 4 keayCS 1J 4V 101 Page 15 your attorney, you are suggesting that we let the permit lapse, because it has not been used? Is that the theory? MRS. OVERSTREET: Yes, sir. COMMISSIONER HAWKINS: Okay. MRS. OVERSTREET: It's been vacant for seven rmondms. COMMISSIONER HAWKINS: Yes. Yes, it has. that goes to my point Rather than wait 180 days -- because we have always assured you in these proceeding that we would not take any action on the lapse issue because you have not been using it But if your proposal is to simply let it lapse, you can waive all of those reservations that you've made, and we could today find that it had lapsed, l believe, for the period since the disuse. I think it was like January 1, right, or something like that, when they vacated? Hasn't been used since January 17 So 180 days has already expired. MR THOMAS: Could I address that? MR. BURNS: Mr. Chairman — CHAIRMAN PEOTTER: Yes, please. Hold on a second. Mr. Bums, why don't you go ahead. MR. BURNS: Thank you. If I could add just a little bit on the law of Page 16 lapse CUPS, the law does provide under the Fort Brag case that if a CUP is being terminated for lack of me, there has to be a hearing before that detem»nation is made. If the applicant were to restart a CUP, then it could not have been lapsed, then it triggets the fact that its live again. CHAIRMAN PEOTTER: Could this hearing then function as that hearing on the lapse? MR. BURNS: No, because they don't have notice to that effect And they can waive that right, like they can surrender their CUP tonight, or surrender it on a certain date, or something like that, an irrevocable surrender. CHAIRMAN PEOTTEIR Do they need to follow it up in writing, or can they surrender it tonight at the hearing? MR. BURNS: Well, I think they can put it -- I think you want it both ways, but they can make that offer on the record and then give you something in writing later. But you'd want to have it irrevocable, effective on a date certain. But that may not work with what she's trying to do. Shejust leased the property. Pinjust offering that in case that works any solution. CHAB2MAN PEOTTER: Okay. Mr. Thomas? Precise Reporting Service 714 - 647 -9099 Page 13 1 but what was in the best interests for the community. 1 2 Because there's so much -- concern about 2 3 various activities going on in Newport Beach. And even 3 4 though, again, I really didn't feel we were responsible 4 5 for what our previous tenants did, I understand there's 5 6 concerns about whoever's in a property like that, that 6 7 there's concerns. But 1 really would be grateful if you 7 8 would look into that. 8 9 We spoke with Mr. Lepo and Mr. Alford on 9 10 Tuesday of this week, and we were hoping to have this 10 11 signed lease yesterday, but attorneys like to dot every 11 12 "I" and cross every "T." And they did, and we do have an 12 13 executed lease here. This is the original in my hand 13 14 1 know I'm not allowed to submit evidence, 14 15 so -- but it is here. And 1 justwould like to say that 15 16 if we can just lapse this use permit -- it should lapse 16 17 in 180 days, because that's what the Code says, I 17 18 believe. Mr. Lepo and Mr. Alford are more familiar with 18 19 the exact wording -- Pd be grateful. 19 20 Thank you very much. 20 21 CHAIRMAN PEOTTER: Thank you, 21 22 Mrs. Overstreet. 22 23 NIT. Hawkins, Mr. Robert Cl? 23 24 COMMISSIONER HAWKINS: Thank you, Bruce. 24 25 Mr. Burns, I have a question for you in terms 25 ._ _.._.__..._—.--_-.__......._.__ Page 14 1 of the — receiving evidence. Certainly we can — 1 2 CHAIRMAN PEOTTER: Its a quick interrupt Do you 2 3 have any question of the applicant? 3 4 COMMISSIONER HAWKINS: I do have questions of 4 5 the applicant, and I was leading to that question. 5 6 Is there a reason why we cannot receive the 6 7 lease? 7 8 MR BURNS: No, you can receive the lease for e 9 purposes of considering that she's — 9 10 COMMISSIONER HAWKINS: The request— 10 11 MR BURNS: Yes. It doesnY go to the heart. 11 12 COMMISSIONER HAWKINS: Right Okay. 12 13 MR BURNS: The issue is ifs going to a 13 14 request to do something different in terms of your 14 15 ultimate decision. 15 16 COMMISSIONER HAWKINS: Okay. 16 17 Mrs. Overstreet, would you tender the lease, 17 18 assuming we will return it to you after we make copies? 18 19 MRS. OVERSTREET: Yes, sir. 19 20 COMMISSIONER HAWKINS: Okay. Could you hand it 20 21 to Mr. Lepo? Would you confirm that it's fully executed, 21 22 and we — all right. 22 23 My second question is for the permit holder. 23 24 MRS. OVERSTREET: Yes. 24 25 COMMISSIONER HAWKINS: Yes, Mrs. Overstreet, or 25 4 keayCS 1J 4V 101 Page 15 your attorney, you are suggesting that we let the permit lapse, because it has not been used? Is that the theory? MRS. OVERSTREET: Yes, sir. COMMISSIONER HAWKINS: Okay. MRS. OVERSTREET: It's been vacant for seven rmondms. COMMISSIONER HAWKINS: Yes. Yes, it has. that goes to my point Rather than wait 180 days -- because we have always assured you in these proceeding that we would not take any action on the lapse issue because you have not been using it But if your proposal is to simply let it lapse, you can waive all of those reservations that you've made, and we could today find that it had lapsed, l believe, for the period since the disuse. I think it was like January 1, right, or something like that, when they vacated? Hasn't been used since January 17 So 180 days has already expired. MR THOMAS: Could I address that? MR. BURNS: Mr. Chairman — CHAIRMAN PEOTTER: Yes, please. Hold on a second. Mr. Bums, why don't you go ahead. MR. BURNS: Thank you. If I could add just a little bit on the law of Page 16 lapse CUPS, the law does provide under the Fort Brag case that if a CUP is being terminated for lack of me, there has to be a hearing before that detem»nation is made. If the applicant were to restart a CUP, then it could not have been lapsed, then it triggets the fact that its live again. CHAIRMAN PEOTTER: Could this hearing then function as that hearing on the lapse? MR. BURNS: No, because they don't have notice to that effect And they can waive that right, like they can surrender their CUP tonight, or surrender it on a certain date, or something like that, an irrevocable surrender. CHAIRMAN PEOTTEIR Do they need to follow it up in writing, or can they surrender it tonight at the hearing? MR. BURNS: Well, I think they can put it -- I think you want it both ways, but they can make that offer on the record and then give you something in writing later. But you'd want to have it irrevocable, effective on a date certain. But that may not work with what she's trying to do. Shejust leased the property. Pinjust offering that in case that works any solution. CHAB2MAN PEOTTER: Okay. Mr. Thomas? Precise Reporting Service 714 - 647 -9099 REPORTER'S TRANSCRIPT - 7/17/2008 5 (Pages 17 to 20) Page 19 agree not to contest a public hearing after the 180 days. CHAIRMAN PEOTTER: Okay. Your position is clear. Any Commission comments for Mr. Thomas? Questions? (No audible response) CHAIl2MAN PEOTTER: All right. Thank you both. Is there anybody else in the public that would wish to speak on this issue? (No audible response.) CHAIRMAN PEOTI'ER: Seeing none, well close the public hearing, and bring it back to -- COMMISSIONER HAWKINS: Mr. Chairman, I wouh like to hear from Ms. Aitn. MS. AILIN: Pm not -- Good evening. Let me introduce myself again. rm June Ailin, appointed Counsel for the staff on this matter. I don't know whether I qualify as a member of the public exactly. But the concern that I have about the proposal is where will this be if, for some reason, the realty office that theyjust entered into a lease with decides that this location doesn't work for them and they leave in less than six months? Yeah, were going to have an agreement that says that the CUP lapses in six months, but it leaves Page 20 them with a CLIP in place that is problematic. And there's the potential for some other tenant to come in behind the realty company, and then you have somebody in there operating under a CLIP that supposedly is going to lapse in a few months. And its just kind of working toward another situation where you're going to be in this kind of revocation hearing, and you're going to have problems bringing this to a conclusion. CHAIRMAN PEOTTER: So your preference, then, if I can short you out there, is would be to modify it per the request tonight? MS. AILIN: At a minimum CHAIRMAN PEOTTER: And than perhaps let it lapse? MS. AILRV: At least if its modified, you should have a more workable CLIP than what you have now it the event [fiat the new tenant decides the location doesn't work out and decides to depart. And frankly, if you have a more workable CUP, I'm not sure that having it lapse in six months without a hearing is particularly necessary; although, I haven't discussed that specific option with the staff, but that may not be necessary if you have a more workable CUP. CHAIRMAN PEOTTER: All right. Thank you Commissioner Robert C.? Precise Reporting Service 714 - 647 -9099 Page 17j 1 MR THOMAS: Yes, sir. Thank you. 1 2 Here's the situation. They are not going to 2 3 surrender it, obviously, because they feel they have a 3 4 vested right. However — all right The proposal is 4 5 that they have got the lease. It was just signed at 6 5 6 o'clock tonight. You'll see. That's the date on the 6 7 lease. So their proposal is to run the 180 days from the 7 8 date of the decision of the Commission, which is fair. a 9 And the only issue here with them is -- and 9 10 they have to protect themselves in this sense, and I 10 11 think anybody who's a businessman would as well -- if, 11 12 for some reason, unlikely reason, HOM Realty decided to 12 13 blow up this lease within that six -month period, that 180 13 14 days period, if they surrendered all their rights under 14 15 that use permit, then they can't have any opportunity to 15 16 use that building for what's already -- its already set 16 17 up to use. 17 18 And, I mean, that would take -- that would 18 19 take — that would effect them economically in the event 19 20 that this happened. And -- 20 21 CHAIRMAN PEOTTER: Mr. Thomas, one of die 21 22 requests that this Commission made last time was that 22 23 they resubmit their CUP application to address that 23 24 issue. Whether or not they had another lease going or 24 25 not didn't make any difference to us. If they wanted to 25 Page 18 1 continue in a modified form, they gave them a lot of 1 2 opportunity. 2 3 So what you're asking to us do is to wait 180 3 4 days — I'mjust clarifying this. You re asking us to 4 5 wait the 180 days, then hold a hearing saying that its 5 6 lapsed, the CUP would be suspended or lapsed. 6 7 MR. THOMAS: No, sir. I made the suggestion to 7 8 Counsel, Ms. Allen, and I've also spoken to Mr. Lego 8 9 about Us just this everting. I said they can draft an 9 10 agreement that says that they will not require a public 10 11 hearing. They will not contest in a public hearing. At 11 12 the end of that 180 days, if they have not exercised or ! 12 13 attempted to exercise any rights on that lease, theyjust 13 14 won't contest it 14 15 So I propose an agreement that Counsel draft 15 16 and that the Overstmas -- we would work out the 16 17 language, and they would sign it. So there would no need 17 18 for a public hearing. They would basically waive their 18 19 right to that public hearing. 19 20 CHAIRMAN PEOTTER: Do you have that agreement 20 21 tonight? 21 22 MR. THOMAS: No. I said Counsel, who has been 22 23 appointed by the City, draft the agreement Well work 23 24 out the language. If the Commission approves this, we'll 24 25 work out the language for that part of it But we would 25 5 (Pages 17 to 20) Page 19 agree not to contest a public hearing after the 180 days. CHAIRMAN PEOTTER: Okay. Your position is clear. Any Commission comments for Mr. Thomas? Questions? (No audible response) CHAIl2MAN PEOTTER: All right. Thank you both. Is there anybody else in the public that would wish to speak on this issue? (No audible response.) CHAIRMAN PEOTI'ER: Seeing none, well close the public hearing, and bring it back to -- COMMISSIONER HAWKINS: Mr. Chairman, I wouh like to hear from Ms. Aitn. MS. AILIN: Pm not -- Good evening. Let me introduce myself again. rm June Ailin, appointed Counsel for the staff on this matter. I don't know whether I qualify as a member of the public exactly. But the concern that I have about the proposal is where will this be if, for some reason, the realty office that theyjust entered into a lease with decides that this location doesn't work for them and they leave in less than six months? Yeah, were going to have an agreement that says that the CUP lapses in six months, but it leaves Page 20 them with a CLIP in place that is problematic. And there's the potential for some other tenant to come in behind the realty company, and then you have somebody in there operating under a CLIP that supposedly is going to lapse in a few months. And its just kind of working toward another situation where you're going to be in this kind of revocation hearing, and you're going to have problems bringing this to a conclusion. CHAIRMAN PEOTTER: So your preference, then, if I can short you out there, is would be to modify it per the request tonight? MS. AILIN: At a minimum CHAIRMAN PEOTTER: And than perhaps let it lapse? MS. AILRV: At least if its modified, you should have a more workable CLIP than what you have now it the event [fiat the new tenant decides the location doesn't work out and decides to depart. And frankly, if you have a more workable CUP, I'm not sure that having it lapse in six months without a hearing is particularly necessary; although, I haven't discussed that specific option with the staff, but that may not be necessary if you have a more workable CUP. CHAIRMAN PEOTTER: All right. Thank you Commissioner Robert C.? Precise Reporting Service 714 - 647 -9099 REPORTER'S TRANSCRIPT - 7/17/2008 6 (Pages 21 to 24) Precise Reporting Service 714 - 647 -9099 Page 21 Page 23 1 COMMISSIONER HAWKINS: Yes. 1 introduced during the hearing. 2 Mr. Chairman, I'll make a motion to move 2 CHAIRMAN PEOTTER: Okay. Other changes? 3 approval of staffs recommendation for resolution of the 3 MR. BURNS: And then also under condition 13, 4 Planning Commission's permit number -- amending use 4 at the end of my little matrix box -- 5 permit number 2001-005, and rescinding use permit number 5 CHAIRMAN PEOTTER: That would be page -- 6 2002 -034, Sejour European Bistro & Lounge, on the 6 MR. BURNS: Page 4, I'm sorry. 7 property located at 3400 Via Lido, PA2002 -167, together 7 CHAIRMAN PEOTTER: Page 4, and line - 8 with the findings that Mr. Bums prepared for our 8 MR. BURNS: Line 24, 25, very end of that 9 consideration. 9 block, after -- where it talks about there was music, 10 CHAIRMAN PEOTTER: Thank you. 10 bouncer and dancing. And then if we could add to it, 11 Motion is on the float. Is there a second? 11 "And by the lease which stated that the tenancy was for, 12 MR. BURNS: Mr. Chairman, I know its highly 12 quote, bar, restaurant and live entertainment business . 13 unusual for me to speak at this time, but Mr. -- the 13 attached to the January 10, 2008, letter, from 14 maker of the motion did actually have a couple of 14 Overstreet." 15 suggestions on the findings that I would want the 15 CHAIRMAN PEOTTER: Other suggestions? 16 Commission to consider also. 16 MR. BURNS: I think that's it. 17 THE COURT: Let's me see if there's a second 17 CHAIRMAN PEOTTER: Is that acceptable to the 18 first, then we'll come back and address it. - 18 maker of the motion of the second? 19 Is there a second? 19 COMMISSIONER HAWKINS; Yes, it was or is. 20 COMMISSIONER MC DANIEL: Mr. Chairman, I 20 COMMISSIONER MC DANIEL: Yes. 21 second, but I have comments. 21 I do have some questions. 22 CHAIRMAN PEOTTER: You've got discussion? 22 CHAIRMAN PEOTTER: Yes. 23 You're than welcome. 23 MR. MC DANIEL: Thank you. 24 Mr. Bums? 24 I think I was in the office, and I got a good 25 MR. BURNS: I just wanted to add that 25 look at that, but I didn't bring a copy -- is the -- oh, Page 22 Page 24 1 Mr. Hawkins did point out that the findings should 1 good. Thank you. 2 probably have added to it some information about what the 2 1 guess what Pm looking at is the conditions 3 lease said, because the lease was for a bar use, and I 3 that are for the type 42 -- is it a type 42 liquor 4 think that's very appropriate that we should add that. 4 license? Is what we're talking about, OR is 47 still in 5 CHAIRMAN PEOTTER: Exactly which page and which line 5 there? 6 are we modifying? 6 CHAIRMAN PEOTTER: We're eliminating the type 7 MR. BURNS: On page 2, the lease stated the _ 7 47. 8 tenancy was for bar use, and we bring this back in 8 COMMISSIONER MC DANIEL: Okay. So that would 9 another version for you to sign. But tonight, you could 9 go to a 42 at that point, for beer and wine, Mr. - 10 adopt it in concept. 10 CHAIRMAN PEOTTER Mr. Lepo. 11 CHAIRMAN PF -OTTER I didn t follow where you 11 COMMISSIONER MC DANIEL., If you remember last 12 were at. 12 time, I was very concerned that the 47 was not there, 13 MR BURNS: Okay. That was page 2, under the 13 because thafs what got us into trouble. And I 14 condition 4, about - - 14 had - I'm the only Commissioner that was on the 15 CHAIRMAN PEOTTER: You have line numbers to the 15 Commission at the time this was originally done. And my 16 left. Do you have a line number? 16 recollection of my conversation was I was concerned about 17 MR BURNS: Line 28, just to add - 17 that 47, that might get us into trouble, and that's 18 COMMISSIONER EATON: Mr. Burns, you're talking 18 kind of what the deal was. 19 about your documents, are you? 19 So I really want to - I really want to make 20 MR. BURNS: ft sorry, I am The docunents I 20 sure that we address that I'rn happy with the 42, beer 21 prepared, the findings of fact Its on numbered paper. 21 and wine. We have no problem with that. Its the hard 22 CHAIRMAN PEOTTER: So you add to the end of i 22 spirits that get us into trouble. 23 that last sentence? I 23 CHAIRMAN PEOTTER: Mr. Lepo, do you have a 24 MR. BURNS: Yes, that lease state that tenancy 24 comment on that? 25 was for bar use. If youll remember, that is a lease 25 MR. LEPO: I believe we have that as a revised Precise Reporting Service 714 - 647 -9099 REPORTER'S TRANSCRIPT - 7/17/2008 Page 25 7 (Pages 25 to.28) Page 27 1 condition that that -- 1 asked for, and IYn comfortable that. 2 MR MC DANIEL: As long as its in there 2 You know, we're not going to take away their 3 someplace. I'd like the maker of the motion -- if that's 3 rights. We're going to give them exactly what they asked 4 a part of that, rd like to just -- in term; of 4 for in the first place. The 47 request wasjust kind of 5 motion, I'd like that in there to make sure that its not 5 just -in -case kind of thing. So Rn very comfortable at 6 a 47. 42 is fine. 6 this point that we've given them what they originally 7 CHAIRMAN PEOTTER: Is there -- are there other 7 asked for, and hopefully that will — whatever. 8 comments on this, other discussions? 8 And if this lease doesn't work out, whatever 9 COMMISSIONER MC DANIEL: The other comment I 9 they end up with, you know, if it comes backs to them, 10 have is, one of the three things that was requested this 10 the original, IM okay with that, because that's what we 11 evening was an extension, and Ive heard no information 11 approved pretty much originally. So that's what we going 12 tonight why there would be an extension. 12 to approve. And that's the thing that we 've gotten in 13 So I guess rm not going to be concerned about 13 trouble, and we can stay out of it. So it makes some 14 that. So -- but I've heard nothing about an extension, 14 sense to me. 15 why we would want one. So I guess thafs off the 15 That's it, Mr. Chairman. 16 table. 16 CHAIRMAN PEOT rER: Mr. Hawkins? 17 CHAIRMAN PEOTTER: With the modification, it's 17 COMMISSIONER HAWKINS: Thank you, Mr. Chu 18 not part of the modification. is I have a question, Mr. Bums, if you may. 19 Rosalinh? 19 Because we're talking about two different 20 MS. UNG: Mr. Chairman, if I may clarify a 20 documents, and I think there was some confusion before. 21 couple of things? 21 Mr. Bums, you prepared findings and fact to support the 22 The draft resolution attached to your staff 22 resolution; is that right? 23 report, specifically condition number 15, 15 basically 23 MR. BURNS: That's correct. 24 says that this approval supereedes and rescinds the use ; 24 COMMISSIONER HAWKINS: So the resolution is 25 permit that carries the type 47. ' 25 that document which carries the amended or modified Page 28 conditions, right? MR. BURNS: Correct. COMMISSIONER HAWKINS: Okay. Ijust want to make that clear. And I do have some other further comments when the time is appropriate. CHAIRMAN PEOTTER: Please proceed. COMMISSIONER HAWKINS: I understand Ms. Overstreet's concerns here, and I applaud their efforts- Ifs unfortunate that after more than six months those effortsjust now lire firuit. This is not an easy process. It was clear that the permits were being abused by the tenant. It is also clear to me that the lease which the Overstreets proposed to the tenant and the tenard signed authorized or said the tenancy was for a bar, restaurant, live entertainment business. That flew in the face of the permits, and thars why I can't support any further extension at this time. I think we've carried on long enough. It was clear when I asked Mr. Thomas if they were willing to somehow either surrender today or allow the permit to — permits to lapse today that there was still the thought of operating a restaurant of a similar fashion, and thatjust can't happen. Precise Reporting Service 714 - 647 -9099 Page 26j 1 So when we are doing that, then we effectively 1 2 eliminate the approval of the 47 license. We keep the 2 3 original approval of the 21 and then the 42 license, 3 4 which allow them to do the retail and the wine tasting as 4 5 ancillary use. 5 6 So the original findings for the use permit, 6 7 the original use permit, still carry through with this 7 8 approval. And that is one of the findings that I 8 9 identify on page -- 9 10 CHAIRMAN PEOTTER: And condition I also. 10 11 MR. MC DANIEL: Condition 1, which is here. 11 12 MS. UNG: Right. And that's one of the 12 13 "Whereas," the very last "Whereas" in the draft 13 14 resolution, page 2. It basically says that, "The 14 15 findings stated for the approval of the original use 15 16 permit, which is 2001 -005, remain valid and are hereby 16 17 readopted." 17 18 CHAIRMAN PEOTTER: Mr. Mc Daniel? 18 19 COMMISSIONER MC DANIEL: But, Ms. Ung, the 19 20 original request from the Ovmhwts was to have a beer 20 21 and wine, and I questioned Mr. Overstreet at the lime, 21 22 saying, "Why do you need spirits ?" And that was supposed 22 23 to be totally ancillary, just in case somebody wanted a 23 24 very old Scotch, if I remember right. So I am 24 25 comfortable with -- because thars what they originally 25 Page 28 conditions, right? MR. BURNS: Correct. COMMISSIONER HAWKINS: Okay. Ijust want to make that clear. And I do have some other further comments when the time is appropriate. CHAIRMAN PEOTTER: Please proceed. COMMISSIONER HAWKINS: I understand Ms. Overstreet's concerns here, and I applaud their efforts- Ifs unfortunate that after more than six months those effortsjust now lire firuit. This is not an easy process. It was clear that the permits were being abused by the tenant. It is also clear to me that the lease which the Overstreets proposed to the tenant and the tenard signed authorized or said the tenancy was for a bar, restaurant, live entertainment business. That flew in the face of the permits, and thars why I can't support any further extension at this time. I think we've carried on long enough. It was clear when I asked Mr. Thomas if they were willing to somehow either surrender today or allow the permit to — permits to lapse today that there was still the thought of operating a restaurant of a similar fashion, and thatjust can't happen. Precise Reporting Service 714 - 647 -9099 REPORTER'S TRANSCRIPT - 7/17/2008 0 gages a7 w 3Z1 Page 31 of my motion. CHAIRMAN PEOTTER: Motion has been restated. The second is okay with you? MS. UNG: Mr. Chairman, before you make the motion -- CHAIRMAN PEOTTER: Motion has already been made. MS. LING: All right. CHAIRMAN PEOTTER: Twice. MS. UNG: Staffjust wanted to request for an addition of one condition, which basically addressed the expiration of the approval if not exercised. It's a standard condition that staff did not add in in this form. So basically it say, 'This approval shall expire unless exercised within 12 months from the end of the appeal period for a specific in -- as specified in section 20.89 of the Newport Beach Municipal Code." CHAIRMAN PEOTTER: Why is it 12 months instead of six? MS. UNG: Because it's under the ABO section, rather than the use permit section. CHAIRMAN PEOTTER: Okay. So we're going to add condition number 35 saying that, "This shall expire if not exercised within 12 months." MS. UNG: Correct. CHAIRMAN PEOTTER: Is that okay with the maker of the motion? COMMISSIONER HAWKINS: Maker of the motion accepts. CHAIRMAN PEOTTER: Okay with the second? COMMISSIONER HAWKINS: Amend the conditions as stated by Ms. Ung. CHAIRMAN PEOTTER: Is that okay with the second? COMMISSIONERMC DANIEL Yes. CHAIRMAN PEOTTER: Okay. We have a motion and asecond. Any further Commission discussion? - (No audible response.) CHAIRMAN PEOTTER: Please vote. MS. VARIN: Motion passed with four "ayes" and one abstaining. CHAIRMAN PEOTTER: Thank you very much, Ms. Overstreet and Counsel. We are moving on. And Mr. Bums, thank you. (Proceedings ended.) Precise Reporting Service 714 - 647 -9099 Page 29 1 So that's the reason for try motion. I do it 1 2 reluctantly. This is not something that the City enjoys 2 3 doing, but its something under its police power it is 3 4 forced to do. 4 5 Thank you, Mr. Chairman. 5 6 CHAIRMAN PEOTTER: Any further Commission I 6 7 discussion? We have a motion and a second. 7 8 MR. THOMAS: Could I be heard further before B 9 you vote? 9 10 CHAIRMAN PEOTTER, No. 10 11 MR. LEPO: Mr. Chairman, I want to be clear 11 12 that the resolution taking the action directed clearly 12 13 incorporates the findings that Mr. Bums has prepared and 13 14 submitted to you. 14 15 COMMISSIONER HAWKINS: My motionincomporated 15 16 both. 16 17 MR BURNS: I think there's an issue that the 17 18 findings are titled "Amending a CUP," whereas the 18 19 resolution has rescinding one and modifying another. 19 20 It's meant to support the resolution you had before 20 21 you. 21 22 CHAIRMAN PEOTTER: To you need to make a 22 23 correction to these findings or to the resolution before 23 24 we vote? 24 25 MR. LEPO: Could we, again, read back the 25 0 gages a7 w 3Z1 Page 31 of my motion. CHAIRMAN PEOTTER: Motion has been restated. The second is okay with you? MS. UNG: Mr. Chairman, before you make the motion -- CHAIRMAN PEOTTER: Motion has already been made. MS. LING: All right. CHAIRMAN PEOTTER: Twice. MS. UNG: Staffjust wanted to request for an addition of one condition, which basically addressed the expiration of the approval if not exercised. It's a standard condition that staff did not add in in this form. So basically it say, 'This approval shall expire unless exercised within 12 months from the end of the appeal period for a specific in -- as specified in section 20.89 of the Newport Beach Municipal Code." CHAIRMAN PEOTTER: Why is it 12 months instead of six? MS. UNG: Because it's under the ABO section, rather than the use permit section. CHAIRMAN PEOTTER: Okay. So we're going to add condition number 35 saying that, "This shall expire if not exercised within 12 months." MS. UNG: Correct. CHAIRMAN PEOTTER: Is that okay with the maker of the motion? COMMISSIONER HAWKINS: Maker of the motion accepts. CHAIRMAN PEOTTER: Okay with the second? COMMISSIONER HAWKINS: Amend the conditions as stated by Ms. Ung. CHAIRMAN PEOTTER: Is that okay with the second? COMMISSIONERMC DANIEL Yes. CHAIRMAN PEOTTER: Okay. We have a motion and asecond. Any further Commission discussion? - (No audible response.) CHAIRMAN PEOTTER: Please vote. MS. VARIN: Motion passed with four "ayes" and one abstaining. CHAIRMAN PEOTTER: Thank you very much, Ms. Overstreet and Counsel. We are moving on. And Mr. Bums, thank you. (Proceedings ended.) Precise Reporting Service 714 - 647 -9099 Page 30 1 motion? I want to make sure that it is very clear. I 1 2 apologize, because we were trying to figure out where we 2 3 were going. 3 4 COMMISSIONER HAWKINS: 1 will be happy to 4 5 restate the motion. 5 6 MR. LEPO: Would you do that, sit? 3 6 7 CHAIRMAN PEOTTER: Go ahead, Mr. Hawkins. 7 8 COMMISSIONER HAWKINS: Thank you. I'm sorry, 8 9 Mr. Chaim> m. Old habits die hard. Please bear with me 9 10 for the next 12 months. - 10 11 I make a motion to approve staffs 11 12 reconmtendation for a resolution of the Planning 12 13 Commission amending use pert number 2001 -005, and 13 14 rescinding use permit number 2002 -034, Sejour European 14 15 Bistro & Lounge, on property located at 3400 Via Lido, 15 16 PA2002 -167, together with the findings which support that 16 17 resolution that have been prepared by the special city 17 18 attorney, Mr. Allen Bums. is 19 That was my motion at that time. 19 20 MR- BURNS: Mr. Chairman, we just have, for the 20 21 record, out of an abundance of caution, to the extent the 21 22 findings have any kind of an inconsistent title, the 22 23 title should be disregarded. The findings support the .23 24 resolution that's before you. 24 25 COMMISSIONERHAWKINS: And that would be parts 25 0 gages a7 w 3Z1 Page 31 of my motion. CHAIRMAN PEOTTER: Motion has been restated. The second is okay with you? MS. UNG: Mr. Chairman, before you make the motion -- CHAIRMAN PEOTTER: Motion has already been made. MS. LING: All right. CHAIRMAN PEOTTER: Twice. MS. UNG: Staffjust wanted to request for an addition of one condition, which basically addressed the expiration of the approval if not exercised. It's a standard condition that staff did not add in in this form. So basically it say, 'This approval shall expire unless exercised within 12 months from the end of the appeal period for a specific in -- as specified in section 20.89 of the Newport Beach Municipal Code." CHAIRMAN PEOTTER: Why is it 12 months instead of six? MS. UNG: Because it's under the ABO section, rather than the use permit section. CHAIRMAN PEOTTER: Okay. So we're going to add condition number 35 saying that, "This shall expire if not exercised within 12 months." MS. UNG: Correct. CHAIRMAN PEOTTER: Is that okay with the maker of the motion? COMMISSIONER HAWKINS: Maker of the motion accepts. CHAIRMAN PEOTTER: Okay with the second? COMMISSIONER HAWKINS: Amend the conditions as stated by Ms. Ung. CHAIRMAN PEOTTER: Is that okay with the second? COMMISSIONERMC DANIEL Yes. CHAIRMAN PEOTTER: Okay. We have a motion and asecond. Any further Commission discussion? - (No audible response.) CHAIRMAN PEOTTER: Please vote. MS. VARIN: Motion passed with four "ayes" and one abstaining. CHAIRMAN PEOTTER: Thank you very much, Ms. Overstreet and Counsel. We are moving on. And Mr. Bums, thank you. (Proceedings ended.) Precise Reporting Service 714 - 647 -9099 REPORTER'S TRANSCRIPT - 7/17/2008 9 (Page 33) 1 2 3 i 4 I, the undersigned, a Certified Shorthand 5 Reporter for the State of California, do hereby certify: 6 That prior foregoing proceedings were taken 7 before me at the time and place herein set forth; that 8 any witnesses in the foregoing proceedings, prior to 9 testifying, were placed under oath; that a verbatim 10 record of the proceedings was made by me using machine 11 shorthand which was thereafter transcribed under my 12 direction; father, that the foregoing is an accurate 13 transcription thereof. 14 I further certify that I am neither fuuncially 15 interested in the action nor a relative or employee of 16 any anomey of any of the parties. 17 IN WITNESS WHEREOF, I have this date subscribed 18 my name. 19 20 Dated: 21 22 Laura A. Millsap, RPR 23 CSR No. 9266 24 25 Precise Reporting Service 714 - 647 -9099