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HomeMy WebLinkAbout08/05/1999CITY OF NEWPORT BEACH 0, Planning Commission Minutes August 5, 1999 Regular Meeting - 7:00 p.m. ROLL GALL Commissioners Fuller, Tucker, Ashley, Selich, Gifford, Kranzley and Hoglund. Commissioners Ashley, Gifford and Hoglund were excused. STAFF PRESENT: Sharon Z. Wood - Assistant City Manager, Economic Development Robin Clauson - Assistant City Attorney Rich Edmonston - Transportation and Development Services Manager Ginger A. Varin - Planning Commission Executive Secretary Marc Myers - Associate Planner Patrick Alford - Senior Planner . Minutes of July 22, 1999: Motion was made by Commissioner Fuller and voted on, to approve the minutes of July 22, 1999 as amended. Ayes: Fuller, Tucker, Selich, KranzJey Noes: None Absent: Ashley, Gifford, Hoglund Abstain: None Public Comments None Postina of the Agenda: The Planning Commission Agenda was posted on Friday, July 30, 1999 0 INDEX Minutes Approved Public Comments Posting of the Agenda City of Newport Beach Planning Commission Minutes August 5, 1999 SUBJECT: Newport B 2920 Newport Boulevard • Use Permit No. 3485 (Amended) An amendment to an existing use permit to allow a change in Alcoholic Beverage Control license type to allow full alcoholic beverage service. Senior Planner Patrick Alford noted the following: • The application is for a change from a Type 23, Small Beer Manufacturer to a Type 75, On Sale General Brewpub. Under the provisions of the Alcoholic Beverage Outlet Ordinance, it requires an amendment to the existing use permit. • The Planning Commission must consider these factors: use serves public convenience or necessity; the crime rate in the reporting district; the number of alcoholic licenses per capita within the reporting district; the number of alcohol related calls for service, crimes and arrests within the reporting district and the proximity of the alcohol beverage outlet to residential districts, day care centers, park and recreation facilities; basic religious assemblies and schools. • The issue of public convenience or necessity - there are currently 24 on -sale establishments providing full alcohol service in the area. • However, the project is the only brewpub in the City. • The issue of crime rate in the reporting district - significantly exceeds the citywide average. Under state law, this constitutes an undue concentration of licenses and the Alcohol Beverage Commission is required to deny the application unless the City determines that the public convenience or necessity is served by the issuance of the license. The Police Department has reviewed the project and recommends that the Planning Commission review the application in light of the larger issue of the intensification of alcohol and related uses on the Balboa Peninsula, especially in the Cannery Village area. • The issue of over - concentration - the number of alcoholic beverage licenses per capita in the Census Tract 635.00 exceeds that of the County. This also constitutes undue concentration under state law. The ABC is required to deny the application unless the City determines that the public convenience or necessity is served by the issuance. • The issue of alcohol related arrests - in the Police Reporting District No. 15, 65% of the arrests in the area are alcohol related which compares to 44% of such arrests citywide. • The issue of adjacent uses - it is a mixed commercial residential zoning district and there are residential units across 30th Street. There is always the potential of impacts to residents. Concluding, Mr. Alford noted that the facts support the finding that the use would be detrimental to the area because the public convenience or • necessity would not be served by the proposed ABC license change. Also, INDEX Item No. 1 Use Permit No. 3485 A Denied . City of Newport Beach Planning Commission Minutes August 5, 1999 due to the large number of alcohol related arrests in the area and to the over - concentration of alcohol beverage outlets in the area, this use would be detrimental to the area. However, the Planning Commission could also find that the issues have been adequately addressed by the current conditions of approval and the change in license type may not necessarily effect that operation. The public convenience or necessity could be served by the sale of distilled spirits in a restaurant brewpub setting. Commissioner Fuller noted that it is stated in the staff report that the Police Department has reviewed the proposed project and has no serious concerns with the current operation. Does that mean the existing operation with the existing liquor license or the proposed operation? Referencing Page 5. Table 1 he also asked what the units of comparison were per capita. Mr. Alford answered that it deals with the past operation and with what occurred in the past. The way the Alcohol Beverage Ordinance is set up, the concentration issue is addressed by way of a Census Tract. The information is not necessarily at a Reporting District level Assistant City Manager, Sharon Wood added that the population ratio is shown on Table 3, Page 6, that is by Census Tract which is a different • geographic area. Mr. Alford added that the area is a mixed use, the population is relatively low compared to other areas on the peninsula, so that the number of licenses in that area to the ratio of population is fairly high. He further added that District No. 13 has more residential, there is very little if any, commercial. In District No. 16, it is predominately residential with some commercial. Commissioner Kranzley clarified with staff that Census Tract No. 635 added to Census Tract No. 628 would represent the entire population of the peninsula. Chairperson Selich asked the percentages of restaurant versus brewery pub? He was told that there are 3,244 square feet on the first floor, and the brewery occupies approximately 1,500 square feet of that. He then asked what the original intent of how the operation was going to be run. Planning Director Patricia Temple answered that the intent of the operation as originally presented was to be a restaurant with a brewpub, where they actually did on -site brewing of custom beers. It was predominately to be used as a restaurant, certainly alcohol was a feature of the operation as that was their niche in the market. It has been run primarily as a restaurant. Commissioner Kranzley noted that taking the entire population on the peninsula by adding Census Tracts 635 and 628, the population is 11,141 with . 65 on sale licenses which is still 1 per 171 persons on the peninsula. INDEX • City of Newport Beach Planning Commission Minutes August 5, 1999 Mrs. Wood noted that the state law mandates that comparisons should be made to the average of the County, which for on sale licenses is 1 per 893 persons and we are at 1 per 171 persons which represents a significant difference. Ms. Clauson noted that the operation was also conditioned in the original use permit that require the service of alcohol as ancillary to the restaurant business and that there is no approval for any type of bar or nightclub. Chairperson Selich asked if other businesses such as this in other communities typically have hard liquor service? Staff answered that one approved in Manhattan Beach similar to this project was recently approved with full alcoholic beverage service. Commissioner Tucker added that one across from the UCI in the Irvine Market Place has a full liquor license. Public comment was opened. Sean Niedelman, operations manager of the Newport Beach Brewing • Company noted: • This is an established restaurant that also brews its own beer, catering to all types of customers. • The restaurant has been looking for ways to improve service and acquiring this liquor license is one of those ways. • The current menu offers variety of foods resulting in food sales of 65% of totalsales. • The restaurant is losing customers due to lack of cocktail service. • We want to compliment the enhanced menu and capture a more diverse clientele by acquiring this license. At Commission inquiry, Mr. Niedelman answered that they are applying for a new license. Captain Tim Newman of the Police Department commented that it is the Police Department's position that there already is a significant impact in this general area of the peninsula due to alcohol consumption. The Police Department is not comfortable advocating a change one way or another and felt that would be something most appropriately handled by this policy making level of government. The Police Department wanted the Planning Commission to address that specific issue. All the statistics used by staff came from the police records and indicates that the police do have a problem and it does effect our level and volume of DUI's and alcohol related offenses that occur in this area. In answer to Commission inquiry, he added that it is difficult • to predict if a change in the license from beer to hard liquor would make a INDEX . City of Newport Beach Planning Commission Minutes August 5, 1999 difference. It depends on the operator. The City has bars with a wide variety of conditions and restrictions on their ability to conduct business and some the Police Department has chronic and current problems with and others never have problems. The Police Department doesn't have problem that end up being detrimental to the community, with an operator whose staff is well trained and who runs a good operation. In this particular case we are dealing with a land planning issue and since this will be with the property, regardless of who the operator is, the Police Department is not in a position to say what this operation will be like in the future. Since the first of the year, the police have arrested 941 individuals for either DUI or who were drunk in public. Of that number, 375 of those individuals were in this Reporting District No. 15. This district is the area between 20th Street to 32nd Street, between the ocean and the Rhine Wharf /Lido Peninsula area inclusive. It has always been a very active area of the City. In response to where they have been drinking. the 681 who responded only 5 of them said they had been consuming alcohol at this establishment. Stepping up from a beer license only, to a full alcoholic beverage service can step up the number of incidents, but it depends on the operator and how he handles his staff. Commissioner Kranzley asked about the number of responses (681) where were they drinking and how many of those bars were on the peninsula? He • was answered that the greatest response had to do with people who were drinking at a private party, 193 were drinking at locations outside the City, 32 said they were drinking at home. Continuing, Commissioner Kranzley noted the following: 407o of the DUI's and drunk in public has to do with alcohol on the peninsula. A year ago, we added a policeman that basically covered Cannery Village. Is that 40% consistent with prior years? Is the 375 up because we have greater enforcement in the area? Captain Newman answered that over the last several years, the crime rate has continued to diminish. As a result of that, the officers have more time to do other things. Resulting from that efficiency, the officers can be and are more proactive to deal with problems. The additional efforts put into Cannery Village last year involved a police presence on 3 -4 nights on a weekend. In Reporting District 15,488 said they were drinking in town and 300 of those were drinking in this area. Commissioner Kranzley asked if the officer being in the Cannery Village area helped? He was answered that it helped by providing crime deterrence with a police presence. The private security guards are no longer being funded. Chairperson Selich asked if the police department view this business primarily • as a restaurant, to which he was answered, yes. INDEX . City of Newport Beach Planning Commission Minutes August 5, 1999 Commissioner Tucker noted that there seems to be so many licenses in this district that if you converted one from beer and wine to full alcohol, you are not making available a produce that is not already available in the district. Does it really make a difference? Captain Newman stated that is a decision that the Planning Commission is going to have to make. In this particular case, the police have not had a problem with this operator under the current conditions. Buzz Person, 507 29+^ Street noted that he has been an advocate for this establishment and is a current customer. This proposed application is a land use issue and has nothing to do with the operator. The City Council has indicated in recent actions taken that there is a problem in this particular area. The switch from beer and wine to hard alcohol is an intensification of use. While this operator is a good operator, I would be concerned with what might come down later on. Two years ago in the Village, there were a lot of problems. Since then, things have gotten much better. Part of that is due to action taken by the City Council and the Police Department. What the residents don't want is to have an unbearable living environment. Things are much better today. • Chairperson Selich asked about the approval for Aubergine's conversion from beer and wine to full service alcohol and the difference between that and this project. Ms. Temple noted that the Aubergine restaurant has more limited hours of operation and is a much smaller establishment. There is no area within the restaurant set aside exclusively for the consumption of alcohol. The Newport Brewing Company, while primarily a restaurant, has an area where alcohol is consumed more exclusively. Mike Madlock, 113 31st Street, Vice President of Newport Beach Brewing Company noted the following: • Most of the new brewpubs are opening up with full liquor license, which is something that we could not do when we opened up 4 and % years ago. • As a local resident, I want to keep peace in the neighborhood. One of the problems that existed in the past is being taken care of with the closing of Snug Harbor and the Cannery Restaurant. • We have no pool tables and no entertainment. • This is a clean operation and concluded by encouraging the Planning Commission to approve this application. Commissioner Fuller clarified with staff that wine was allowed under the existing license. • INDEX • City of Newport Beach Planning Commission Minutes August 5, 1999 Keith Vohr, 415 Town Square Lane, Huntington Beach noted the following as a share holder of the Newport Beach Brewing Company: • Agrees with concerns mentioned in previous testimony. • The issue of undue concentration is moot. We are not adding a new license in the area, rather, we are asking to modify an existing license. • We are a small subset of District 15. • The issue of crime with 5 arrests out of 680 is approximately 0.7 %. We are a good operation as shown by the numbers. • The idea of adding alcohol service is to stay competitive and improve the restaurant. • The convenience is for those in the neighborhood. • We have had no protests from the mailings. • The hours are from 11 a.m. to 1 a.m. on the weekends and 11 a.m. to 11 p.m. during the week. • All of the staff is ABC trained. • We are in compliance with zoning regulations as we exist now. • There will be no special events or promotions at the restaurant. Roz Salomony, 2600 Newport Boulevard, President of the Newport Beach . Brewing Company noted the following: • The people who spoke before me operate the brewery. • We have been successful from the time the pub was opened. As we grew into a restaurant, we find that our guests are seeking other flavors with their dinner. • We are asking for the alcohol to compliment these new requests. • I live in the area of the brewery and will do everything possible to maintain harmony. At Commission inquiry, Mr. Alford noted that the current condition of closing hours is until 2:00 a.m. Friday and Saturday, which was approved in 1993 by the City Council. However, the ABC license does restrict them to 1:00 a.m. closing on Friday and Saturday. Public comment was closed. Commissioner Kranzley noted that the Peninsula and specifically the Cannery Village have been an issue for a number of years. Citizens, Police Department and restaurants have spent a lot of time on trying to RX the problems in Cannery Village. As the Chairman of the Commission when it passed Bill Hamilton's Cannery Restaurant live entertainment and dancing, I voted in favor of that after offering a condition that required the addition of a policeman to walk that beat and that would be funded by the applicant. The Planning Commission decision was overturned by the City Council. That sent a message to me, as well as the Alcohol Beverage Ordinance that was • passed, that the City Council was serious about fixing the issues on the INDEX . City of Newport Beach Planning Commission Minutes August 5, 1999 peninsula that account for 40% of the arrests for DUI and drunk in public for the entire City. The concentration on the peninsula will not be increased but it would be intensifying a license because of the over concentration of alcohol serving establishments on the peninsula. The ABC has made it clear that they have to deny the application for the license unless it is determined that the public convenience or necessity would be served by this issuance. We have a number of establishments that serve liquor on the peninsula, and I don't believe we can find that the public convenience or necessity would be served by this upgraded license. The operator is a good operator, but this use and what we do tonight will run with the land. The next operator may not be as conscientious as this operator. I am not in favor of this application. Commissioner Fuller stated he was not in favor of this application due to the statistics presented specifically: • the 24 on -sale full alcohol service licenses in this area, the crime rate that exceeds the City crime rate by 258 %, • the alcohol licenses per capita at 1 per 134 persons, whereas the County is 1 per 893 persons, • the alcohol related calls for service is 65% in this District and 44% city -wide • concern for the residential standard of living • Continuing, he noted that he was around during the Cannery Restaurant discussion and it was very apparent that the residents in this area were most concerned with these alcohol - related problems. It would intensify problems that may exist if this application was approved. I like the concept of the brewing company and that is the use that was approved. Commissioner Tucker stated that Newport Beach is a visitor serving community and always has been. Comparisons to what the alcoholic beverage license is in other communities are not germane to our community. Switching the license will not make much difference; there are plenty of places for hard liquor. The addition of another location would not create more opportunities to drink when there are plenty of opportunities virtually next door. I believe it would serve the public convenience or necessity and therefore I support this license conversion. Chairperson Selich noted that if this is primarily a restaurant and we give the full alcohol service to other restaurants, it seems somewhat discriminatory to me to single this use out and say we are not going to give them a full service alcohol permit. Again, thinking back to Aubergine realizing that there is a difference in scale, etc. the permit runs with the land. Another operator could come in and intensify that use. If we had a policy that we were going to hold the number of licenses fast within the area and people could trade the licenses around; I might feel more comfortable. 0 Discussion on Aubergine by staff noted that if the bar or any area exclusively INDEX • City of Newport Beach Planning Commission Minutes August 5, 1999 for the service of alcoholic beverages was increased by more than 15% they would need a new use permit. Right now, there is only about 15 square feet. Commissioner Kranzley stated that comparing these two facilities is not a fair comparison, especially if there was intensification at Aubergine's it would come before the Planning Commission and I would not be in favor of it. Commissioner Tucker noted that at what point do you stop being a restaurant and start trending towards a bar. Is it proper to zero in on percentage of alcohol sales and how do you enforce that? Ms. Clauson answered that it is in the Code as far as a definition of a bar and how it operates. There are already conditions on the use permit that specifies the primary use has to be as defined in the Code and is with the service of alcohol as ancillary. We have an enforcement mechanism, the percentages of food service to alcohol service as one of the factors considered in the enforcement method. They have to report this information as part of the ABC license requirement. Commissioner Kranzley stated that there is also a land use issue in this area. There is a concentration of alcohol and liquor licenses, and it has caused . problems and is currently causing problems. We are going to be losing a license there and maybe a second. This over - concentration has caused a burden on the residents as well as the Police Department. I don't get a sense that there is an economic issue and I don't think this is the time for us to be considering changing any liquor licenses. Chairperson Selich noted that the Council has spoken on the issue of alcohol service in the area and the intensification of license. I would like some kind of policy that would restrict the number of license and allow transference of the licenses within the area. I will support the staff recommendation. Motion was made by Commissioner Kranzley to deny the amendment of Use Permit No. 3485A subject to the findings contained in Exhibit A. Ayes: Fuller, Selich, Kranzley Noes: Tucker Absent: Ashley, Gifford, Hoglund Abstain: None Exhibit "A" FINDINGS FOR DENIAL FOR USE PERMIT NO. 3485 (AMENDED) FINDINGS: • INDEX . City of Newport Beach Planning Commission Minutes August 5, 1999 The proposed project is located in Police Reporting District No. 15, which has a crime rate that exceeds the citywide crime rate by over 258 %. This constitutes an "undue concentration" of licenses under the provisions of Section 23958.4 of the Calif omia Business and Professions Code. 2. The proposed project is located in Census Tract 635.00, which has a ratio of alcoholic beverage licenses to population that is above the average ratio of Orange County. This constitutes an "undue concentration" of licenses under the provisions of Section 23958.4 of the California Business and Professions Code. 3. The public convenience or necessity would not be served by the granting of the amendment to Use Permit No. 3485 to allow a change in Alcoholic Beverage Control license type to full alcoholic beverage service because of the undue concentration of licenses in the area. . 4. Due to the undue concentration of alcoholic beverage outlets and their impact on the Cannery Village area, and because the public convenience or necessity would not be served, the proposed project would be detrimental to the health, safety, peace, morals, comfort, and general welfare of persons residing or working in the neighborhood of such proposed use and would be detrimental or injurious to property and improvements in the neighborhood or the general welfare of the City. ••s SUBJECT: Mock Residence Retaining Wall 1821 BoyadereTerrace • Modification Permit No. 4903 • Acceptance of a Negative Declaration Request to permit the construction of a 20 foot high rear yard retaining wall which exceeds the permitted 6 foot height limit in the side and rear setback areas. The proposed retaining wall is intended to stabilize an unsafe slope and reclaim a portion of rear yard lost due to erosion. The retaining wall will reclaim approximately 21 feet of rear yard surface area previously slope. In accordance with Section 20.33 of the Newport Beach Municipal Code the approval of a modification permit is required for the height and location of the proposed retaining wall. 10 INDEX Item No. 2 Modification Permit No. 4903 Negative Declaration Approved City of Newport Beach • Planning Commission Minutes August 5, 1999 Public comment was opened. Brian Mock, 1821 Bayadere Terrace owner of the property introduced his wife and structural engineers. Referencing an exhibit board, he noted the following: • Bought the propertywith the landslide erosion already having taken place. • The homes along Bayadere Terrace have a pad on top and a lower pad that have been developed into a back yard or swimming pool area. You can not building a housing structure on it. • He referenced the soil erosion pictures of the residence and nearby lots. • Solution for the restoration and stabilizing is the construciton of a 21 foot crib wall. • This crib wall will be landscaped with trees planted in front for a double visual barrier to the wall. This wall will be set back 24 feet from the curb and will rise up to no higher than the level of the lowest pad which is consistent with the Community Association. • This presentation was given to the Irvine Terrace Architectural Committee, adjoining neighbors and members of the Yacht Club, all of whom have given approval. At Commission inquiry, he answered that the pad area, when completed, will • be larger. The lowest pad has eroded and is about half the size of the area that will result with the construction. It will move out approximately 24 -25 feet and will be consistentwith the rest of the neighbors along the front of Bayadere. The plan is to install a swimming pool with deck area and fence. The only other option would be a cut and fill which would result in losing the total pad area. He has received letters of approval from neighbors on either side. Public commentwas closed. Motion was made by Commissioner Kranzley to approve Modification Permit No. 4903 and for the acceptance of a Negative Declaration with the findings and conditionsas contained in Exhibit A. Ayes: Fuller, Tucker, Selich, Kranzley Noes: None Absent: Ashley, Gifford, Hoglund Abstain: None • INDEX • City of Newport Beach Planning Commission Minutes August 5, 1999 EXHIBIT "A" FINDINGS AND CONDITIONS OF APPROVAL FOR Modification Permit No. 4903 and Negative Declaration A. Mitigated Negative Declaration: Findings: An Initial Study and Mitigated Negative Declaration have been prepared in compliance with the Environmental Quality Act (CEQA), the State CEQA Guidelines, and Council Policy K -3. 2. On the basis of the analysis set forth in the Initial Study and Mitigated Negative Declaration, including the mitigation measures listed, the proposed project does not have the potential to significantly degrade the quality of the environment. 3. There are no long -term environmental goals that would be compromised by the project. • 4. No cumulative impacts are anticipated in connection with this or other projects. 5. There are no known substantial adverse affects on human beings that would be caused by the proposed project. 6. The contents of the environmental document have been considered in the various decisions on this project. Mitigation Measures: During construction activities, the project is required to comply with the erosion and siltation control measures of the City's grading ordinance and all applicable local and State building codes and seismic design guidelines, including the City Excavation and Grading Code (NBMC Section 15.04 or applicable sections). 2. Prior to the issuance of a grading permit, the applicant shall submit a comprehensive geotechnical investigation to the Planning and Building Department for review and approval. 3. Prior to the issuance of a grading permit, the applicant shall submit a construction traffic control plan which includes the haul routes, truck • hauling operations, construction traffic flagmen, and construction 12 INDEX City of Newport Beach • Planning Commission Minutes August 5, 1999 warning /directional signage to the Planning and Traffic Department for review and approval. 4. The applicant shall implement each of the design recommendations stipulated in the geotechnical reports prepared for the proposed project. Those reports shall serve as the definitive guides to geotechnicol mitigation requirements for the construction of the proposed retaining wall structure, in addition to standard engineering practice and local and State building codes. S. A geotechnical engineer shall observe all excavations, subgrade preparation and fill placement activities. Sufficient in -place fill density tests shall be performed during fill placement and in -place compaction to evaluate the overall compaction of the soils. Test areas that do not meet minimum compaction requirements should be reworked and re- tested prior to placement of any additional fill. b. The retaining wall construction system shall be approved by a recognized testing agency and installed per the applicable conditions of approval and mitigation measures contained herein. • 7. At the time of plan .submittal to the Building Department, the applicant shall submit a formal request for the use of alternative materials or methods of construction for review and approval by the Building Official. 8. The project shall conform to the requirements of the National Pollution Discharge Elimination System (NPDES) and shall be subject to the approval of the Public Works Department to determine compliance. 9. During construction activities, the applicant shall ensure that the project will comply with SCAQMD Rule 402 (Nuisance), to reduce nuisance due to odors from construction activities. 10. During construction activities, the applicant shall ensure that the following measures are complied with to reduce short-term (construction) air quality impacts associated with the project: a) controlling fugitive dust by regular watering, or other dust palliative measures to meet South Coast Air Quality Management District ( SCAQMD) Rule 403 (Fugitive Dust); b) maintaining equipment engines in proper tune; and c) phasing and scheduling construction activities to minimize project - related emissions. 11. Construction activity mitigation shall include the following measures: • Dust Control 13 INDEX City of Newport Beach Planning Commission Minutes August 5, 1999 • Limit the disturbance area and use enhanced dust control measures. The menu of enhanced dust control measures includes the following: • Water all active construction areas at least twice daily. • Cover all haul trucks or maintain at least two feet of freeboard. • Apply water four times daily to all unpaved parking or staging areas. • Sweep or wash any site access points within 30 minutes of any visible dirt deposition on any public roadway. • Use street sweepers to clean and pick up trailing dust from roads in the vicinity of the project. • Cover or water twice daily any on -site stockpiles of debris, dirt or other dusty material. • Suspend all operations on any unpaved surface if winds exceed 25 mph. • Hydro -seed or otherwise stabilize any cleared area which is to remain inactive for more than 96 hours after clearing is completed. Emissions Control • Require 90 -day low -NOx tune -ups for off -road equipment. . Limit allowable idling to 10 minutes for trucks and heavy equipment. Off -Site Impacts • Encourage car pooling for construction workers. • Limit lane closures to off -peak travel periods. • Park construction vehicles off traveled roadways. • Wet down or cover dirt hauled off -site. • Wash or sweep access points daily. • Encourage receipt of materials during non -peak traffic hours. • Sandbag construction sites for erosion control. 12. The applicant shall submit a traffic control plan and a construction access plan to address construction traffic and parking in order to maintain safe access to the site during construction. The construction access plan shall include alternative pedestrian and bicycle path routes and an employee parking plan. The plan shall be reviewed and approved by the Traffic Department and the Planning Department. Additionally, the applicant shall obtain a haul route permit from the Public Works Department and a street /sidewalk closure permit from the Revenue Division. Additionally no construction equipment shall be permitted to park overnight on Bayside Drive. 13. The applicant shall ensure that the project will comply with the • provisions of the City of Newport Beach General Plan Noise Element 14 INDEX • City of Newport Beach Planning Commission Minutes August 5, 1999 INDEX and the Municipal Code pertaining to noise restrictions. During construction activities, the hours of construction and excavation work are allowed from 7:00 a.m. to 6:30 p.m. on weekdays and 8:00 a.m. to 6:00 p.m. on Saturdays, and not at any time on Sundays and holidays. B. Modification No. 4721 Findings: The land Use Element of the General Plan designates the site for "Single Family Detached Residential" uses and a retaining wall structure is considered an accessory use which is a permitted use within this designation. 2. On the basis of the analysis set forth in the Initial Study and Mitigated Negative Declaration, including the mitigation measures listed, the proposed project does not have the potential to significantly degrade the quality of the environment. • 3. The granting of a modification to exceed the permitted height limit in a setback area will not be detrimental to persons, property or improvements in the neighborhood and the modifications as approved are consistentwith the legislative intent of Title 20 of the Newport Beach Municipal Code for the following reasons: • The use is compatible with the surrounding residential uses since retaining wall structures are typically allowed in residential districts. • Conditions have been added to address potential problems associated with landscaping, and height. • The height of the retaining wall is 10 feet lower than the building pad elevation of the homes above. • The retaining wall will stabilize an unsafe eroding slope condition. • The location of the retaining wall at the rear property line is 24 feet from the face of curb on Bayside Drive. • The location of the retaining wall protects against impacts on residential neighbors and minimizes impacts from the public right -of -way. • Additional landscaping has been provided on -site and in the right of way in front of the wall to enhance the aesthetics of the project and minimize the impacts of the wall height. • The design of the proposed improvements will not conflict with any easements acquired by the public at large for access • through or use of propertywithin the proposed development. 15 • City of Newport Beach Planning Commission Minutes August 5, 1999 Conditions: The development shall be in substantial conformance with the approved site plan, cross sections, landscape plan and elevations, except as noted below. 2. A landscape and irrigation plan for the site shall be submitted to the Building Department in conjunction with plans for construction of the project and shall be approved by the Public Works, General Services and Planning Departments. Landscaping shall be provided in a combination of trees, low shrubs and ground cover consistent with the approved landscape plan and acceptable to the Planning Department, Public Works Department and General Services Department. Additionally, the slope area between the sidewalk and the front of the retaining wall shall be appropriately landscaped with bushes and trees specified in the approved landscape plan to obscure the direct view of the wall. A combination of low shrubs and ground cover shall be provided on the slope along the rear property line consistent with the approved landscape plan. Prior to issuance of the final of building permits for the retaining wall, the applicant shall schedule an • inspection by the Code Enforcement Division to confirm installation of the landscaping specified by this condition of approval. The approved landscaping shall be installed in accordance with the approved plan and shall be permanently maintained in a clean and orderlyfashion. 3. An encroachment agreement shall be executed for the landscaping provided in the public right -of -way along Bayside Drive. The landscape plans shall be reviewed, approved and installed in accordance with the Public Works Departmentwith an encroachment permit. 4. The elevation of the grade at the top of the retaining wall shall be limited to elevation 142 as indicated on the approved plans. 5. A guardrail shall be required on top of the retaining wall in accordance with the requirements of the Uniform Building Code, and the construction material shall be limited to open wrought iron or clear glass. Other than the required guardrail specified by this condition, any new construction including, but not limited to fences, walls or hedges shall be prohibited within 32 feet of the rear property line unless an amendment to this Modification Permit is first approved. 6. Disruption caused by construction work along roadways and by movement of construction vehicles shall be minimized by proper use of traffic control equipment and flagmen. Traffic control and • transportation of equipment and materials shall be conducted in 16 INDEX • City of Newport Beach Planning Commission Minutes August 5, 1999 7. The construction of the proposed wall will require traffic control plans to handle construction traffic and activities adjacent to Bayside Drive. The applicant is required to obtain a haul route permit from the Public Works Department and a street /sidewalk closure permit from the Revenue Division. 8. No construction equipment shall be allowed to park overnight on Bayside Drive. 9. The retaining wall landscaping shall be installed and maintained in accordance with the approved plans. Standard Requirements The project is subject to all applicable City ordinances, policies, and standards, unless specifically waived or modified by the conditions of approval. 2. Public improvements may be required of a developer per Section • 20.80.060 of the Municipal Code. 3. All improvements shall be constructed as required by Ordinance and the Public Works Department. • 4. Arrangements shall be made with the Public Works Department in order to guarantee satisfactory completion of any required public improvements, if it is desired to obtain a grading or building permit prior to completion of the public improvements. 5. Public easements and utilities crossing the site shall be shown on the grading and building site plans. 6. This Modification shall expire unless exercised within 24 months from the date of approval as specified in Section 20.80.090A of the Newport Beach Municipal Code. SUBJECT' Wormington Residence (Jim WarmingtonJr.,Applicant) 701 West Bay Avenue • Variance No. 1229 • Modification Permit No. 4955 17 INDEX Item No. 3 Variance No. 1229 Modification Permit No. 4955 • City of Newport Beach Planning Commission Minutes August 5, 1999 Request to approve a variance for the construction of a new single family dwelling which exceeds the allowable 2.0 times the buildable area of the site. Included in the variance is a request to exceed the basic height limit by approximately 1 foot with a portion of sloping roof over an exterior stair landing located at the southwest corner of the building. The proposal includes a modification to the Zoning Code to permit the structure to encroach 6 feet into the 9 foot front yard setback, 7 feet into the 10 foot rear yard setback, and 1 foot into the 4 foot side yard setback. Public comment was opened. Jim Warmington, Jr., 701 West Bay Avenue noted the following: • This application asks to be brought up to the same standards as the neighbors. • This lot was oriented to the opposite direction in order to gain more of the bay view. However, the setbacks were not changed. • The current plan allows for a 2, 268 square foot house on a 2,400 square foot lot, whereas the neighbors on a 2,100 square foot lot are allowed to build just under 2,800 square feet. • We are asking for a Floor Area Ratio variance which will be the some as the neighbors have. • • We are asking for modifications on the setbacks. We have worked with the neighbors, staff and architect to make the impacts as minimal as possible. Referencing a model, he explained views, lowering of roof pitch and impact on back corner. We meet the 24 -foot height limit except for one small section. • Because there is a third floor a secondary emergency egress is required per building codes and that is what we did with the rear stair landing located at the southwest corner of the building. In order to meet the access requirementwe had to do the slope. The house is already a foot and one - half subterranean and we can't lower it any more or the driveway would not work. We can not lower the deck because it goes into a bedroom and it would make the ceiling height lower than seven feet, which is not allowed in a habitable space. This roof area represents 2% of the entire roof area and is below the ridge. Lee Rogaliner, 705 West Bay Avenue, stated his support of this application. Public comment was closed. Commissioner Kranzley stated that after reading the staff report he was inclined not to approve the variance of the one -foot sloping roof. However, looking at the model has decided that it is a lovely design and that there is no visual impact, he is in support of this variance. • Motion was made by Commissioner Kranzley to approve Variance No. 1229 18 INDEX Approved • City of Newport Beach Planning Commission Minutes August 5, 1999 and Modification Permit No. 4955 as long as there was a condition that includes the applicant's desire to have the roof the same as it is on the model. Associate Planner Marc Myers stated that condition 3 in Exhibit A could be modified to read that, 'The height of the new single family residence and attached garage shall not exceed the 24 foot height limit for the district with the exception of the shed roof area over the rear stairway." Chairperson Selich agreed stating that when you see the model you can see it is because of the cut out and where the mid point of the roof gets measured. Commissioner Fuller stated that with the reasonable setbacks, the size would be 3,128 square feet and what we are asking for is 3,281 square feet. They are asking for more than what is typical in the neighborhood. That is the only problem I have with this. What would happen if the size were held to the 3,128 rather than the 3,281 ? Mr. Myers stated that during the design process discussions, the two standards that the Commission use in determining a variance finding for a lot of this nature were kept in mind. That is what the applicant designed the structure around. For the reasons explained in the staff report, we could find both ways, • and it would be up to the Commission to decide. Commissioner Tucker expressed his concern with the square footage. The last variance addressed by the Planning Commission ended up paring back the requested floor area increase. How do we distinguish this case where we have effectively said that this lot with reasonable setbacks and allow the applicant to go over the square footage. Are we going to have problems in the future with people coming in and saying it's only going to be 150 feet for example? How do we deal with that? Chairperson Selich stated that in the past, variances are not supposed to be setting precedence. Each one is evaluated on its own merits. We have dealt with lots like this that were either subdivided one direction and then re -cut in another direction later on which meant the side yards were turned around or they were half lots with much higher FAR than here. Mr. Myers noted that while the proposed project exceeds the number, it should be noted that the reasonable setback and the buildable area are merely standards that have been devised to try to make a reasonable proportional comparison versus similarones in the neighborhood. Commissioner Fuller asked about the variances that were approved, were the proposed sizes exceeding the suggested sizes with the reasonable setbacks? • Staff answered that they generallywere within that analytical standard. 19 INDEX • City of Newport Beach Planning Commission Minutes August 5, 1999 At Commission request, the applicant was asked about the 3,128 square foot limit. Public comment was re- opened. Mr. Warmington stated that the area covered by the house would not be any taller than any other two -story houses in the neighborhood and it will cover less of the lot than many of the other houses. Most of the houses cover 65% of the lot and this covers 527o. To lower the square footage will be difficult because of how tight many of the spaces in the house are and because it is a three story. We did design the house around what staff told us were reasonable square footage. The circulation area is comprised of the landings and stairs and is a small percentage of the square footage. Commissioner Fuller stated that the applicant has done a good job on the design, the only problem is the excessive size in relation to what is reasonable. Public comment was re- closed. Assistant City Manager Sharon Wood stated that staff was not able to provide • findings for the height with regard to the Variance and if the Commission wishes to approve that a finding should be included in the record. Ms. Clauson commented that the way the laws of variances have been interpreted over the years, the focus is on the property itself, the zoning, topography and setbacks. In this case, setbacks would by why it is appropriate to look at the impact of the ability to build the property. The topography in this case would not be a standard. If the Planning Commission feels there is something about the setbacks that have somehow resulted in the need for the additional Floor Area Ratio but in a smaller space that relates to the height, that might result in a finding to support a height variance. Generally, the need for architectural design for building standards is not the basis for findings to support a variance. Chairperson Selich stated that the special circumstance that justifies all of this is the fact that these lots were originally oriented in the other direction and had a full alley access. Now they have been re- oriented 90 degrees and the property does not have the benefit of the full alley access. It is a totally different configuration of the property than a typical lot for which we designed the zoning regulations. This opens it up for a variance and the reasonableness for the design for the lot. Ms. Clauson stated that is her suggestion; if the Commission felt there was something about the lot itself, setbacks that somehow generated the need for • that height variance in order to get the square feet the owner needs to go up 20 IT TrT�I • City of Newport Beach Planning Commission Minutes August 5, 1999 three stores. That might be the way to reach the finding that would be necessary in this case. Ms. Temple noted that there was a lot of work done on this particular part of the structure. One of the things the designer attempted to utilize was the provision for extra height for enclosed stairwell accesses. For whatever reason, that design simply couldn't be worked out. Basically we are looking at a circumstance where a stairwell access that was enclosed could have exceeded the height by 5 feet for a footprint area of 25 feet but because this one is open it does not qualify for that provision. At Commission inquiry, Mr. Myers, referring to the plans, noted that an open space analysis is provided. The zoning code requires in this particular area to have certain cubic volume of open space and this particular project provides an excess of that volume. The required would be 24 x 52 x 6 which comes to approximately 7,000±. They have provided 12,642 cubic feet. Commissioner Fuller stated he was "on the bubble" on this only because of the extra size. I think the applicant has made a good faith effort as evidenced by the support of the neighbors and with the open space, I am going to support this. • Ms. Clauson provided the following for language for a finding for the roof. The variance is necessary because the property's restricted setbacks and resulting restrictions on buildable floor area requires a three -story structure. The variance for height is necessary to preserve the substantial property rights of the applicant because a second access from the third floor is required and the second open stairwaywould otherwise be permitted if it were enclosed. The Motion was amended to include that additional finding language. Ayes: Fuller, Tucker, Selich, Kranzley Noes: None Absent: Ashley, Gifford, Hoglund Abstain: None EXHIBIT "A" FINDINGS AND CONDITIONS OF APPROVAL FOR VARIANCE NO. 1229 Variance No. 1229 Findinas: 1. The proposed development is consistent with the Land Use Element of • the General Plan and the Land Use Plan of the Local Coastal Program 21 INDEX • City of Newport Beach Planning Commission Minutes August 5, 1999 since a single family dwelling is a permitted use within the "Single Family Residential' land use designation. 2. This project has been reviewed, and it has been determined that it is categorically exempt from the requirements of the California Environmental Quality Act under Class 3 (New Construction or Conversion of Small Structures). 3. Exceptional or extraordinary circumstances apply to the land and building referred to in this application, which circumstances or conditions do not apply generally to land, building and /or uses in the some District since the subject property is subject to greater than normal setback requirementswhich restrict the buildable area of the site. 4. Because of special circumstances applicable to the property, strict application of the zoning will deprive the property of privileges enjoyed by other properties in the vicinity and under the same zoning classification since the subject property is comprised of the front one - half of two lots of the original subdivision. This results in its unusual orientation towards the street, and makes it subject to greater than normal setback requirements, which restrict the buildable area of the • site. 5. The approval of Variance No. 1229 is necessary for the preservation and enjoyment of substantial property rights of the applicant since the proposed project is generally proportional in size, bulk and height and is compatible with other buildings in the surrounding neighborhood and strict application of setback requirements would result in a reduced buildable area in which to construct a dwelling. 6. The granting of the application is consistent with the purposes of this code and will not constitute a grant of special privilege inconsistent with the limitations on other properties in the vicinity and in the same zoning district since there are no other lots of this sae in the vicinity. The granting of the variance will allow development of a dwelling that is compatible with the surrounding neighborhood, comparable in size, bulk and height to other buildings in the surrounding neighborhood and provides setbacks that are the same or similar to the standard setbacks applied to other properties in the district. 7. The granting of a variance to allow the structure to exceed the permitted gross structural area will not be detrimental to the health, safety, peace, comfort and general welfare of persons residing or working in the neighborhood of the subject property and will not under the circumstances of the particular case be materially • detrimental to the public welfare or injurious to property improvements 22 INDEX • City of Newport Beach Planning Commission Minutes August 5, 1999 in the neighborhood because: • The proposed project will improve the aesthetics of the property and enhance the overall neighborhood. • The use of the property for a single - family dwelling is consistent with the developmentin the neighborhood, the Zoning, and the General Plan. • A new home on this lot will provide more on- street parking due to the parking spaces provided on site. • The applicant has obtained written support of the adjacent and potentially affected neighbors. • The design of the proposed improvements will not conflict with any easements acquired by the public at large for access through or use of property within the proposed development since conditions have been included in regards to development within the public right -of -way. 8. The granting of a modification to allow encroachments into setbacks will not be detrimental to persons, property or improvements in the neighborhood and the modifications as approved are consistent with the legislative intent of Title 20 of the Newport Beach Municipal Code • because: • The main structure is setback 3 feet and the garage is setback 10 feet from the 7}h Street property line. • The increased garage setback preserves the peripheral views of the neighboring properties and provides a smoother transition between the setbacks provided on the two lots. • A setback of 5 feet, which is greater than the 4 foot side yard setback requirementfor other properties in the neighborhood, is provided along West Bay Avenue. • The 7 foot encroachment into the rear yard setback will provide a 3 foot setback, which is similar to the 3 foot side yard setback on the adjacent lot to the west and provides light and air between properties. • The western propertyline between the two sites is more similarto a side yard than a rear yard. • With the exception of the exterior stairway, the main portion of the structure provides a 9 foot clear setback from the side property line. • The 3 foot setback from the property line the proposed stairway maintains is comparable to the side yard building setbacks provided on the adjoining lot and on similar sized lots in the neighborhood. Three foot side yards are standard on lots 30 foot wide, which is • the standard width of the underlying original lot. 23 INDEX • City of Newport Beach Planning Commission Minutes August 5, 1999 9. The variance is necessary because the property's restricted setbacks and resulting restrictions on buildable floor area requires a three -story structure. The variance for height is necessary to preserve the substantial property rights of the applicant because a second access from the third floor is required and the second open stairway would otherwise be permitted if if were enclosed. Conditions: 1. The development shall be in substantial conformance with the approved site plan, floor plan and elevations, except as noted below. 2. The gross square footage shall not exceed 3,281 square feet. 3. The height of the new single family residence and attached garage shall not exceed the 24 foot height limit for the district. 4. Two enclosed parking spaces shall be provided on site for the parking of vehicles only, and shall be available to serve the residential unit at all • times. 5. The existing drive approach shall be removed and replaced with curb, gutter and sidewalk along the West Bay Avenue frontage. All work shall be completed under an encroachment permit issued by the Public Works Department. 6. A 5 foot radius corner cutoff at the comer of West Bay Avenue and 7m Street shall be dedicated to the public. Standard City Requirements: 1. The on -site parking, vehicular circulation and pedestrian circulation systems shall be subject to further review by the Traffic Engineer. 2. All work within the public right -of -way shall be constructed under an encroachment permit /encroachment agreement issued by the Public Works Department. 3. All public improvements shall be constructed as required by Ordinance and the Public Works Department. 4. Disruption caused by construction work along roadways and by • movement of construction vehicles shall be minimized by proper use of 24 INDEX • City of Newport Beach Planning Commission Minutes August 5, 1999 traffic control equipment and flagmen. Traffic control and transportation of equipment and materials shall be conducted in accordance with state and local requirements. 5. Overhead utilities serving the site shall be undergrounded to the nearest appropriate pole in accordance with Section 19.24.140 of the Municipal Code unless it is determined by the City Engineer that such undergrounding is unreasonable or impractical. 6. This variance shall expire unless exercised within 24 months from the date of approval as specified in Section 20.80.090A of the Newport Beach Municipal Code. SUBJECT- Outline of a Process to Update the Newport Beach General Plan Chairman Selich reported that the outline included in the staff report will be transmitted to the City Council on Monday. He had requested that it be placed on the agenda tonight, so that the Commission could take a look at • the result of the committee work of Commissioners Kranzley, Gifford and himself. The Committee has been trying to come up with a road map to update the City's General Plan within the constraints that the Council had adopted at their goal setting session in the first part of the year. The Committee is working on the Newport Center Plan while at the same time looking at the whole General Plan. At the March Council presentation the Committee said that in addition to the privately initiated projects discussed, the City may be initiating an update to its LCP and the General Plan amendments and a Specific Plan to the airport area. Both the Planning Commission and the City Council have indicated that inter- relationships amongst these projects should be studied. The City Council had also indicated an interest in undertaking a community visioning process. It would be consistent with the earlier discussed Planning Commission's role to assist the City by providing direction and leadership in these areas. As with the privately initiated projects, study sessions as these plans are being formulated will help the Commission see how they impact one another and where adjustments should be considered. Regular communication between the Council and Commission on progress and direction would be necessary to ensure that the Commission does not get ahead of the Council or go beyond its advisory role. By sending this to the Council, it is giving an update on how we see things going. I know that staff is making a presentation at 4 on planning priorities which include all the things on the official work program. We want to get their • comments and direction on how they want us to go with the General Plan and 25 INDEX Item No. 4 General Plan Update Process Recommended • City of Newport Beach Planning Commission Minutes August 5, 1999 how they see it proceeding. Commissioner Tucker asked about the urban design element and what it would entail. Chairperson Selich answered that these are suggestions only. Urban design would be looking at the design concepts within the City primarily for the public sector projects. There is no process to review the design of all the stuff we are building. Sometimes it's nice and sometimes it is not, it depends on money, who is designing it and who is looking at it. I have heard comments from Councilmembers about the disjointed monument signs coming into the City, lack of theme or consistency, street furniture, landscaping, all types of things. It could get into design review of private sector projects as well. Commissioner Tucker asked about the development of comprehensive General Plans for airport area; was this going to be Specific or General Plan? How will the general plan work for the Banning Ranch if the County is the one that taking the lead. How do we give input to the County? Ms. Temple answered that staff is working closely with the County in reviewing • all the environmental preliminary documents for the Banning Ranch and have been since the process was initiated and will continue to do so. Commissioner Tucker asked for an update on the Banning Ranch on the next agenda. • Chairperson Selich noted that at every Commission meeting there would be a section devoted to the Newport Center where the committee can report what has happened. The Committee envisions that in the areas of the City where we are not making policy or land use changes, we rationalize them somehow and get them into a general plan that is consistent and comprehensive, readable and useable. One of the weakest areas is adding specific policies for each statistical area. There may be policies existing, whether formal or informal and they need to be gathered and set down somewhere they can be useful. Motion was made by Commissioner Kranzleyto forward to the City Council with a recommendation that this project be placed on the priority project list of the Planning Department for the upcoming year. Ayes: Fuller, Tucker, Selich, Kranzley Noes: None Absent: Ashley, Gifford, Hoglund Abstain: None ss• INDEX • City of Newport Beach Planning Commission Minutes August 5, 1999 ADDITIONAL BUSINESS a.) City Council Follow -up - Oral report by the Assistant City Manager regarding City Council actions related to planning- Mrs. Wood reported that the Council approved the changes for the Balboa Bay Club; affirmed action with regard to the Fletcher residence on Bay Island, Councilmember Noyes called up Jiffy Lube as well as Blockbuster Sign for review on Monday night. b.) Oral report from Planning Commission's representative to the Economic Development Committee - the timeshare presentation by the Marriott has been rescheduled to August 25th. The committees are working to accomplish their directions in particular the Airport Committee as well as staff working on a scope of services and budget. The hotel committee is working on Lido Village and Marina Park, strategic planning is working on economic development and the image enhancement is working on marketing under the guidance of Rosalind Williams. • c.) Oral report on status of Newport Center General and Specific Plan program - Mrs. Wood reported that there have been two meetings with the major property owners group. We have shown them a time schedule that would get to public hearing by May of next year and a budget per square footage. The Committee wanted to make sure we looked at this on a long range so we are looking at properties that have special land use restrictions that will be coming off in several years and looking at the potential development on those sites. We are asking the City Council to authorize a random sample telephone survey of residents to try to get visioning ideas from the broad community over the long term for the Center. Meetings have been set up every two weeks. A planning consultant firm has been retained as the project manager, Hogle Ireland. They have been a help to staff keeping this task on line. 1] d.) Matters that a Planning Commissioner would like staff to report on at a subsequent meeting - Commissioner Tucker asked for an update on the Banning Ranch. At Commissioner inquiry about the Dunes, Mr. Alford stated that they had a meeting on the EIR and are finalizing the screen check. The draft EIR hopefully will be out for review at the end of August. Ms. Temple stated that there has not been much new information on the Banning Ranch since the last presentation to the Commission. Extensive comments have been made on the LCP as well as County. Until we get a revised document, there may not be much substance to bring to the Commission. 27 INDEX Additional Business • City of Newport Beach Planning Commission Minutes August 5, 1999 1] • e.) Matters that a Planning Commissioner may wish to place on a future agenda for action and staff report - none. f.) Requests for excused absences - Commissioner Fuller will be absent on August 19th. ADJOURNMENT: 9:15 p.m. RICHARD FULLER, SECRETARY CITY OF NEWPORT BEACH PLANNING COMMISSION OT . INDEX Adjournment