HomeMy WebLinkAbout10/18/2001•
Planning Commission Minutes CITY OF NEWPORT BEACH
October 18, 2001
Regular Meeting - 6:30 p.m.
INDEX
ROLL CALL
Commissioners McDaniel, Kiser, Agajanian, Tucker, Gifford, Kranzley and Selich -
Commission Kranzley was excused, Commissioner Gifford arrived at
6:45 p.m.
STAFF PRESENT:
Sharon Z. Wood, Assistant City Manager
Patricia L. Temple, Planning Director
Robin Clauson, Assistant City Attorney
Rich Edmonton, Transportation /Development Services Manager
James Campbell, Senior Planner
Todd Weber, Associate Planner
Ginger Varin, Planning Commission Secretary
Minutes
Minutes of October 4, 2001:
Motion was made by Commissioner Selich, and voted on, to approve the
Approved
amended minutes of October 4, 2001.
Ayes: McDaniel, Kiser, Agajanian, Tucker, Selich
Abstain: None
Absent: Kranzley, Gifford
Public Comments:
Public Comments
None
Postina of the Agenda:
Posting of Agenda
The Planning Commission Agenda was posted on Friday, October 12, 2001.
• City of Newport Beach
Planning Commission Minutes
October 18, 2001
SUBJECT: Lo Salsa /Milestone Management (PA2001 -086)
4341 MacArthur Boulevard, Suite F
(Continued from 09- 20 -01)
• UP No. 2001 -018
Request to approve a use permit to expand the seating of an existing specialty
food establishment from 21 seats with no increase in net public area. The
increased seating changes the use classification from specialty food to full service,
high turnover, and increases the parking requirement by 7 to 17 spaces. The
restaurant (La Salsa) is located within a commercial center at the northwest corner
of Corinthian Way and MacArthur Boulevard. The item was continued from the
meeting of August 23, 2001.
Ms. Temple stated that the applicant has requested that this item be continued to
the next meeting on November 8,2001 .
Motion was made by Commissioner Selich to continue the public hearing on UP No.
2001 -018.
Ayes:
McDaniel, Kiser, Agajanian, Selich
Noes:
None
Absent:
Gifford, Kranzley
40 Abstains:
Tucker
SUBJECT:
Carmelo's Ristorante -
3520 E. Coast Highway
• Use Permit No. 1908A
Discussion of noise related complaints generated by live entertainment and
patrons.
Chairperson Tucker stated that the Planning Commission will hear the evidence
on this item and, if sufficient cause exists, will set Use Permit No. 1908A for review
on November 8, 2001. He then noted the correspondence that was received
and distributed to the Planning Commission: the memorandum from the Police
Department, and letters from Gary Martin and Robert Walchli. He stated that he
had a series of questions upon his review of the staff report and had faxed the list
to staff and the other Commissioners as well. He then stated he would go
through these questions and upon staff's answers the Commission could come in
With any follow -up questions:
How do the use permit and the live entertainment permit work together?
Statutorily, does one have superiority over the other?
Ms. Temple answered that use permits, as defined in State Planning Law and the
City's Zoning Code, are considered a land use permit, which is a discretionary
INDEX
Item No. 1
UP 2001 -018
Continued to
11/08/2001
Item No. 2
UP 1908A
Discussion
• City of Newport Beach
Planning Commission Minutes
October 18, 2001
approval. Once approved and exercised, it attaches and runs with the land. It
remains a vested right until the use either goes away entirely for a period of time
or through action of either the Planning Commission or City Council, it might be
revoked. The Live Entertainment Permit (LEP) is a permit whose basis is found in
Title 5 of the Municipal Code, which is our section on business regulations.
According to the Assistant City Attorney and our Revenue Manager, which is the
branch of the City that issues LEP's, they are licensing permits and non -
discretionary. However, they are only issued after authorization by either the
Planning Commission or City Council through a use permit approval. The use
permit sets forth the maximum parameters of the request of the issuance of the
LEP. It could be that over a period of time a live entertainment permit, which is
actually issued to the operator at the time, would have to be sought if the
restaurant changed hands, management or went out of business and a new
operator came on board. It can never be issued in a manner that exceeds the
authority granted in the use permit. However, should the applicant elect to
apply for a live entertainment permit with a lesser amount of live entertainment
anticipated, it could be issued with language that would reflect a lesser ability, to
conduct that entertainment then as accommodated by the use permit.
Chairperson Tucker reiterated that the applicant comes in and applies for a
permit, fills out a form that lists the information, and details what the applicant
intends to do and then as long as that request does not exceed what is
• authorized in the use permit, then it would be issued. Staff agreed.
Ms. Temple added that in terms of the question related to this particular use
permit and its associated live entertainment permit, the most recent amendment
to the use permit occurred in 1990. It was a request to change the character of
the live entertainment from a background, low -key non - amplified style of music
to what is characterized as a combo. It also included a request to add dancing
in addition to live entertainment to that use permit and was approved. Due to
somewhat of an administrative oversight, the associated live entertainment
permit amendments were not applied for, for some time. At the time it was
discovered, about 1999, the business owner applied to the Revenue Division for a
live entertainment permit and the application associated with that request did
once again include the characterization of a combo and dancing within the
establishment. When the actual permit was issued, the Revenue Division had
apparently added the language that was reflective of the use permit conditions
of approval but for some reason neglected to eliminate the prior condition that
indicated that the live entertainment was for background music, classical in
nature, with no amplification. On reviewing the record, we believe that was a
clerical oversight and we will take the measures necessary to revise that permit in
a way that reflects both the approved Use Permit of 1990 and the live
entertainment permit as accommodated by, and has been conducted by, the
establishment since that approval.
Chairperson Tucker then asked:
• Do we have three different places in our ordinances where the issue of noise is
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• City of Newport Beach
Planning Commission Minutes
October 18, 2001
addressed: Section 5.28.040(3) of the Municipal Code, the Community Noise
Control Ordinance and the Loud and Unreasonable Noise Ordinance? Any
other places? How do these Ordinances work together?
Ms. Temple answered that there are several parts of the Municipal Code that
deal with various aspects of not only live entertainment, but also just the violation
of the Municipal Code as it relates to any form of noise, be it music or any other
type of nuisance sound that the community may experience. Within Title 5 and
the chapter on live entertainment permits, there is an indication that the music
should be conducted in such a way that it does not go pass the property onto
other private properties or onto the public right of way. In this particular case, we
believe the standard is very difficult to enforce and most particularly since the
use permit actually allowed the conduct of live entertainment with the doors
facing Coast Highway open. You can't take advantage of the provision of the
use permit and meet that standard. It also has not been enforced since the use
permit was approved and implemented. We have been advised by the City
Attorney's office that it is a difficult enforcement issue. That doesn't mean that
we can't still look at the conduct of the live entertainment in light of all of the
other tools available to us in the Municipal Code as it relates to any form such as
sound that might be offensive to the neighborhood.
There are two other chapters that are specific on this point. One is Chapter 10.26
of the Municipal Code, which is our Community Noise Control Ordinance. This
particular ordinance actually sets very specific and objective standards of
limiting noise coming from properties, including music from live entertainment
establishments. It provides the City with objective standards to identify whether a
violation of this Code section is present. It sets decibel standards, and when we
received the most recent series of complaints, we had our Code Enforcement
staff visiting the Carmelo's location a number of times a week for many weeks
attempting to discern whether a violation of Chapter 10.26 was resulting from the
operation. There were three memos from our Code Enforcement Supervisor, Mr.
Jim Sinasek, conveying the information in his evaluation pursuant to 10.26 and
essentially determined that no violation of the objective standards of Section
10.26 were present. It is important to note that Code Enforcement staff did note
that, particularly at times when the cycle of traffic on Coast Highway was either
stopped by way of signal or diminishment of traffic volumes due to later night
hours, that the music was audible in the areas across Coast Highway from which
the principal complaints have been received.
Because there was no violation of the objective standard, we then proceeded to
present the Planning Commission information related to our other Noise
Ordinance, which is Loud and Unreasonable Noise Chapter in Section 10.28 of
the Municipal Code. This is the older Noise Ordinance from our Municipal Code
and is used by Code Enforcement staff and the Police Department to determine
in the field whether a violation is present because noise from any type of source
that raises to the level of being loud and unreasonable as described in the
chapter, a determination can be made whether a citation or other action would
. be warranted in those particular cases on a judgment basis. A copy of that
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• City of Newport Beach
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October 18, 2001
chapter of the Municipal Code is included in the packet. There is a series of
factors described to be used for the purpose of determining whether a violation
of this code section is present. This could certainly provide basis for Commission
discussion in terms of whether you believe that a violation of this section is present
upon which you could base a reason to call the use permit up for review in
addition to any other factors you receive tonight.
Chairperson Tucker reiterated that there are three ordinances, one of which is a
challenge to enforce and is fairly inconsistent with the terms of the use permit.
Another ordinance with objective standards 10.26 was found to not be violated
in visits by code enforcement. A third ordinance that is more subjective in nature
and has to do with loud and unreasonable noise, which takes account of the
time of day or night. Noise that might not necessarily violate 10.26 in terms of
sheer amount of noise might violate 10.28 depending on what time it happens.
Ms. Temple answered correct, as well as the source of the noise and whether
that source would commonly be expected to generate such sound and other
factors as described in Section 10.28.010 and factors 'a' through 'm' described
on handwritten page 60 in the staff report.
Chairperson Tucker then asked what the state of the use permits is, there is a 1983
permit, a 1990 permit that looks like it superseded the 1983 permit but there is a
. section in it that talks about terms of the earlier conditions would still apply. It
says that all previous applicable conditions of approval of Use Permit No. 1908
and related amendments shall be fulfilled. Does that amendment in the June 7,
1990 supersede the earlier amendment, if so what is the effect of that condition
number 2? There was a further amendment as well on October 4, 1990 that
seems to have dealt with leaving the front door open.
Ms. Temple answered that the Use Permit in 1990 was specifically to change the
character and nature of the live entertainment and to allow for caf6 dancing.
There were some specific conditions in regards to those specific requests and
some repetition of earlier conditions. The intent of this condition is to make sure
that should any relevant conditions not been brought forward into this set of
conditions, that they would still apply. At Commission inquiry she noted that the
1983 and 1990 permit and to the extent that the 1990 permit does not directly
contradict the 1983 permit, then the 1983 permit applies.
Chairperson Tucker stated that we have a permit in 1983 that talks about
classical music. We have a permit in 1990 that doesn't talk about classical music
but talks about a combo. We are then left not with classical music at all; we are
left with a dance combo.
Ms. Temple agreed adding that the restaurant had a use permit that allowed the
background music, classical and non - amplified. They began to change their
operation to a dance combo style of entertainment rather than background
type of live entertainment, and it was discovered by staff. At that point, the City
•
said they must amend their use permit in order to accommodate the changes in
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• City of Newport Beach
Planning Commission Minutes
October 18, 2001
live entertainment. The new application was filed and approved. As noted, that
approval did include a subsequent review by the Planning Commission after 120
days. At that time the Commission modified the approval further to allow the live
entertainment to be conducted at times when the doors facing Coast Highway
were open.
Ms. Clauson added that under land use and zoning, generally it is appropriate to
deal with the number of instruments, whether amplified or not. To get into the
type of music is something that I would not promote us doing anymore.
Chairperson Tucker stated that the reason we are even here tonight talking
about this item is condition 14 of the June 7, 1990 permit, which reads that the
Planning Commission may add to or modify conditions of approval to this use
permit, or recommend to the City Council the revocation of this use permit, upon
a determination that the operation which is the subject of this use permit, causes
injury, or is detrimental to the health, safety, peace, morals, comfort, or general
welfare of the community. We need to make a determination that one of those
things has happened. If this matter comes before us, do we have the luxury of
applying the standards we have today to a new permit or do we roll it back to
1990?
Ms. Temple answered that should this matter be called for review in order to
. modify conditions, yes, changes would have to be on the basis of facts in the
record and as they relate to the findings. One of the factors involved would be
the testimony taken.
Commissioner Selich questioned that if the Commission chooses not to add or
modify conditions of approval, where does that leave the City Council if they
want to take an action independent of the Planning Commission?
Ms. Temple answered that the Council may call for review any decision that the
Planning Commission makes.
Commissioner Selich noted that since the Live Entertainment Permit is not
discretionary, it can not be conditioned. Can the Live Entertainment Permit have
a condition to keep the doors shut even thought the Use Permit allows it to stay
open?
Staff answered that the City Manager does place conditions to assure that it
stays within the parameters of the Municipal Code and the use permit. But they
can not do conditions that are contrary to the use permit. Yes, the LEP can have
that type of condition as long as they applied for the permit to operate under
that certain condition to keep the door opened. The LEP's do not run with the
land and can be changed and that is the point with the licensing permit. The
City Manager has some discretion on live entertainment permits to impose
additional conditions.
40 Chairperson Tucker then referred to the letter from Mr. Martin. One of the claims
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• City of Newport Beach
Planning Commission Minutes
October 18, 2001
made in the letter was that over 120 calls were made about Carmelo's for the
last year. I had asked if we had an inventory of the complaints and whether that
was something we could verify, how many related to noise and how many from
Mr. Martin himself?
Ms. Temple answered that as you received a copy of the memo from Capt. Tim
Newman, the Police Department reviewed their records for the last year from
October 15, 2000 to October 15, 2001. There were 35 calls related to loud
music /noise and similar related disturbances. Of these events, 29 were the same
reporting party, 4 calls were from anonymous or unidentified persons and 2 were
from other identified persons. The common complaint was that the music was
too loud and /or that the establishment's doors were open.
Chairperson Tucker went on to say that Mr. Martin also states that Mr. Bludau told
him that Carmelo's was being fined for their noise violations, if true, how many
fines were levied and is there any documentation?
Ms. Temple answered that since the adoption of the Administration Citation
Ordinance, which occurred on or near the end of 1997, there have been a total
of 11 citations issued. All of these occurred in 1998 and 1999. Of these, two were
not related to sound violations. They were for prohibited discharges as related to
the NPDES permits (washing out behind the restaurant in the alley). Of the
remaining, 9 citations were for either violations of use permit conditions and
violation of loud and unreasonable noise ordinance 10.28. Of those 9, 3 were
subsequently cancelled. The business has paid a total of $2,600 in administration
citations including the two NPDES violations. In terms of those that were
cancelled, in 1999 a representative of the business owner came to the City and
indicated a disagreement with the foundation of all the citations on the noise
and upon review of the specific wording of the condition, the City Attorney's
office and the Planning Department concurred that the specific wording of the
condition was being complied with. Therefore, the last three citations were
cancelled. There have been no citations, either paid or cancelled, since
October 1999.
Ms. Clauson added that the condition states that the live entertainment shall
occur within the interior of the building was being interpreted by staff that was
citing them, as the sound could not leave the building. I agreed when
challenged with the interpretation and concluded that it wasn't accurate, that
music was in fact being played in the interior of the building. That is condition 10
on page 34 of the June 7, 1990 minutes.
Referring to page 31 of the June 7, 1990 minutes, Chairperson Tucker noted that
Mr. Hewicker stated that the Planning Commission has previously requested from
the applicants, the services of an engineer practicing in acoustics to advise what
measures can be taken so as to be assured that no sound is transmitted from the
building. Was that intended to be included in the conditions, I wonder.
• Ms. Temple answered that it was intended as a response to the previous speaker
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City of Newport Beach
Planning Commission Minutes
October 18, 2001
during that hearing who was interested in adding a condition regarding sound
attenuation to address the stated concerns in public testimony, but it does not
appear that the Commission chose to make that a requirement in the conditions
of approval. In the end, the Commission required that the use permit be
reviewed in 120 days with an acoustical report submitted at that time.
Ms. Clauson stated that the concept at the time they allowed the doors open,
they found that the noise from Coast Highway was much louder than any noise
that was going to be heard from the restaurant. I think that was the reason why
they let the doors stay open.
Chairperson Tucker went on to say that Mr. Martin says that the drums pound
through the ground and the whole house pulsates. Is that something we can
look into?
Ms. Temple answered that we did discuss that question with Mr. Sinosek this
afternoon. He indicated that while the base element or beat element of the
music was audible, he did not discern any vibration either from the ground or any
way that he felt.
Chairperson Tucker noted that this answers all the questions he had.
• Commissioner Kiser noted the memorandum of August 1 lih that is in our packet
on handwritten page 17. If refers in the last paragraph to two things. One is that,
based on this information the ambient automobile traffic noise would, therefore,
be a standard for the residential portion of this mixed -use property. I don't
understand that sentence. Mixed use property, are they referring to the
residential property behind the site at which they were observing the noise or the
site on which they were observing from?
Ms. Temple answered that what the Community Noise Ordinance has is a
standard where in an area where there are a mix of uses and if there is an
ambient sound source, that does affect the decibel standard involved used for
the measurement of compliance. However, the noise measurements were taken
on both the residential property and in the commercial district. The sound from
the live entertainment was found to be not only less than the ambient sound
from Coast Highway, but also in compliance with the decibel limits. The decibel
limits before the hour of 10 p.m. is 55 decibels and after is 50 decibels.
Commissioner Kiser, referencing to the same paragraph of that memo, noted it
refers to the Noise Zone III and a 100 -foot distance, is that contained in one of the
overlapping noise ordinances we have?
Ms. Temple answered that Noise Standard III actually does not apply and was an
erroneous interpretation by the code enforcement staff. However, the Noise
Standard that is applicable in any of the Zones 1, 11, or 111 of which residential is
Zone 1, is still altered by the ambient noise present on the property. The presence
• of the noise on Coast Highway does effect the evaluation. We tried to measure
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• City of Newport Beach
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October 18, 2001
any noise at my address.
Chairperson Tucker stated that the 1990 use permit, as far as the type of music,
superseded the requirement that it be classical music. When you have a four -
piece combo to dance to as part of live entertainment, it's generally not going
to be classical. The style of music is not limited. The number of instruments
appears to have been limited to four. The concerns expressed about the hours
of operation are definitely what we are concerned about. That is what the use
permit is there to do; they can conduct the activities they are permited to do
during the hours that are permitted. If they are going beyond the hours that are
authorized, that is a concern. The crowds on the patio is more of an issue of who
controls the crowd and if the crowd is out in the public right of way, then you
know why they are there, but how much ability does the City have for oversight?
At Commission inquiry, Mr. Martin added:
• Drinking on the patio was a problem. Maybe with no alcohol, they
would not be screaming as they do now. If something could happen to
change that, it might improve the situation.
• He does not know the number of musical instruments being played in
Carmelo's.
Commissioner Gifford noted the copy of the live entertainment permit included
in the staff report that is dated May 19, 2000. It has, as a reason for revocation,
that the live entertainment shall be limited to incidental background music shall
be limited to non - amplified acoustical instruments. No sound amplification, brass
or percussion instruments shall be permitted at any time. The style of music in
terms of classical, country or rock, we do have some further limitations on the
music based on the live entertainment.
Chairperson Tucker noted that the permit could be revised to be consistent with
what is allowed under the use permit, which is amplified music with the front door
open.
Ms. Clauson noted that this is what was discussed earlier and noted as a clerical
error done by the department that issues those permits. That was the original
language of the original permit and when it was amended they put the new
provisions in but did not delete the old provisions. It was our determination it was
a clerical error and did not come to light until this hearing.
At Commission inquiry, Mr. Martin noted he has lived at that residence for 13
years. He and the neighbors have been tolerant regarding the noise and have
put off coming to the City. However, it is to the point now that it's intolerable.
The crowds he can deal with, but not the music.
Walt Nadus, 418 Yz Narcissus Avenue (3rd house from the alley that parallels Coast
Highway) noted that on Thursday, Friday and Saturday nights, people who exit
• the Carmelo's restaurant are very loud and rowdy. Sometimes there are fights,
they urinate on buildings in the alley as well as throw up on people's private
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• City of Newport Beach
Planning Commission Minutes
October 18, 2001
property. This usually happens between 12:30 and 2 in the morning and it is
pretty hard to go back to sleep once you have been awakened. The next
problem I have is the patrons leaving beer bottles in the alley for other people to
either pick up or run over with their cars. The next thing I have is the driving.
When either the patrons or employees leave the establishment, they come up
my alley and rev up their engines and speed up driving down the alley. The next
thing would be on Friday, Saturday and Sunday mornings the help from
Carmelo's come out and take the bottles and throw them into a big dumpster
and that makes a loud noise. I am sure most people do not appreciate it on a
weekend as most people like to sleep in. My next -door neighbor is a police
officer and he encouraged us to come down and talk about the complaints
because the police patrol the neighborhood quite often and they are known to
be over at Carmelo's through either complaints or rowdiness. As I am behind the
restaurant, I hear the people when they come out the back door. I do not hear
the music that much. I have gone to Carmelo's and talked to the bartender
who said they have had quite a few complaints and recommended that the
establishment close earlier as it appears to be the only establishment on Coast
Highway that is open until 2 in the morning.
Mark Carrol, property owner of 418 Narcissus stated that his tenants have told him
of the problems and it wasn't until yesterday that he found out the magnitude of
the problem. I am very concerned about Corona del Mar. I have talked to my
tenants and they tell me that basically the annoyance starts about midnight and
lasts to 2 a.m. They hear alarms, keys, talking, fighting and cussing between the
houses, which is two feet from some of the bedroom windows. Some of tenants
are scared to death. I think this has taken away from the health and safety of
these people and if nothing else, a good night's sleep. I am talking about the
secondary noise, once the people leave the premises of Carmelo's that's when
the problem starts for my property, it is not the music, it's the spillover from the
crowds. The tenants in the front unit say the music is really not the problem, the
problem is the patrons.
Tom Ronk, 417 F Orchid Avenue, located behind Carmelo's stated he has no
music problem. The problem that we do have during the summertime between
12 and 3 in the morning is people leaving Carmelo's restaurant drunk and loud. I
wasn't shy about yelling to the people to move along, etc. I bought air -
conditioning so that with the windows closed, the noise is more muffled from the
people who are out in the front. Things then started to disappear from the front
yard, empty bottles were left in the grass and I would have to go out and clean
up the next morning. I like Carmelo's and I have been pretty tolerant; what
happens between 12 and 3 in the morning is a real problem that needs to be
addressed. Perhaps the security that works at the restaurant could walk out with
the patrons and keep them moving along. With the energy crisis going on, the
cost of the air conditioning is 200 to 300 dollars. I am not complaining about the
cost, but it would be nice if something could be done in terms of monitoring the
infiltration of the neighborhood with people who are belligerent. Somebody is
going to get hit or hurt at some point in time because this does wear on the
• nerves.
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October 18, 2001
Captain Tim Newman of the Newport Beach Police Department noted the
memorandum that was presented in the packet. The information is based on the
35 calls directly related to noise /disturbances at the address. Mr. Martin spoke
earlier and stated he had a greater number of police calls and I would need
time to verify that information. The volume and rate of calls is fairly consistent. I
have been patrolling the streets here for 23 years at various times during my
police career. At 2 in the morning, these events occur all over our community
where we have mixed use and bars with patrons leaving. It is the nature of the
beast. With 300 liquor licensees, somewhat like this, the problems happen
everywhere. The likelihood that the police would focus on an individual
establishment, is not practical. The later hours gives the patrons more time to
drink, which diminishes reflexes and judgment significantly. This is a significant
problem within the entire community. At Commission inquiry, he noted that the
problems heard tonight are comparable to the other establishments (serving
meals and staying open late) throughout the City. Carmelo's is a popular place.
I have the Vice and Intelligence office, we work with the ABC folks. My office
generally gets any trends or problems that appear to recurrent as it relates to the
City's alcohol establishments. Right now, I am not getting a lot of complaints
about the businesses in the Corona del Mar area. At Commission inquiry he
noted that there is a noticeable reduction in volume of the traffic around
midnight or 1 o'clock on Thursdays, Fridays and Saturdays.
• Diane Martin, 323 Narcissus Avenue stated that she and Gary live in the front of
Carmelo's and that the sound comes forward into their house. For one whole
summer, they played Zorba the Greek really late at night and the pounding
sound is like a jackhammer going through their house. When you are trying to
sleep, you can really feel it as well as hear it. There are some nights when the
sound is not so loud, it is not consistent. Our complaint is the pounding base
sound.
Gene Rooten, Goldenrod resident, stated she is not directly impacted by
Carmelo's, however noted:
• Similar complaints from many different areas with restaurant
establishments.
• The need to follow our rules, variances and laws within the City.
• Maybe there is some way to acoustically control the sound.
• Security guard use.
• Laws not being enforced.
• Possibility of closing off patios at 10:00 p.m.
Judy Manto, Proprietor of Carmelo's Restaurant at 3520 E. Coast Hwy noted the
following:
• At that location for 22 years.
• Will do anything to make life easier for everybody.
• 1 have done structural changes to Carmelo's to help with noise
problems.
• 0 1 employ security people and have given them the directive that if
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• City of Newport Beach
Planning Commission Minutes
October 18, 2001
both to find what the level of impact was.
Commissioner Kiser noted in the last paragraph on handwritten page 18, the
sentence says, when the traffic noise was absent, the noise from the crickets was
as loud as the crowd noise absent any screams or high - pitched laughter from the
facility. What does this mean?
Ms. Temple noted that these notes were never intended for the use of being
looked at in the fashion that they are, however, the intent was to indicate that
there were times when loud voices and laughter did occur. At that time, they
were definitely audible, but that the general crowd noise that was not
accentuated by these things was essentially overcome by other environmental
factors.
Commissioner Kiser stated for the record that whenever representatives of the
City prepare a memorandum, they should assume the memorandum will be
looked at very critically, possibly by the public. We should be careful about the
way they are written and the impressions that they lead whenever they stray
from the facts.
Ms. Wood added that with regard to the screams and laughter, I recall talking to
Mr. Sinasek shortly after he had gone out for this particular evening visit, and the
• way Ms. Temple described it is the way I recall Mr. Sinasek telling me that day.
Public discussion was opened.
Mr. Martin, 323 Narcissus noted the following:
• He lives about 350 feet from Carmelo's.
• He has no problem with crickets or the traffic noise.
• He has a problem with the noise from the band that comes out of
Carmelo's.
• His main problem is the drum as you hear and feel the pulsating.
• The noise disturbs his sleep until after 2 in the morning.
• He presented a packet for review that includes:
1. Copy of web site page that advertises Latin, Big Band, Rock and
Roll, Swing, funk rock, R & B. Hip -Hop and Reggae music is played
Thursday through Saturday until 2: a.m.
2. Picture of banner displaying that Brazilian music is being played,
not classical.
3. Police Reports listing from 1998 - 2000 by code.
4. Copies of letters written to the City and to Judy Manto.
5. A copy of a signed petition that was circulated to neighbors
around Carmelo's with 26 people signatures.
Continuing he noted alcohol is served out on the patio and the patrons become
very loud. At Commission inquiry he noted that his main complaint was the
. drums that pound until 2:00 a.m. which becomes a problem on Thursdays as he
has to get up and work on Fridays. No one from the City has come to measure
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City of Newport Beach
Planning Commission Minutes
October 18, 2001
problems arise, call the police.
• We no longer have Brazilian music, never had reggae.
• We have a tiny dance floor.
• Patrons are not allowed to remove beer bottles from the establishment,
it is against the law.
• 1 am doing my best for the neighborhood and certainly to keep mine a
viable business.
• I am tired of being put on the defensive.
• 1 have a clean establishment.
• 1 want to stay in this community and be a good neighbor.
• I like what I am doing and employ a lot of nice people.
• 1 don't want to sell, but if I do the next person who goes in there might
not be as law- abiding as I am.
Commissioner Kiser asked what structural changes had been made to mitigate
noise. Does the entertainment include more than four individuals playing? Do
you leave the main front door towards Coast Highway open during the time
when the music is played? If your operation ended up being conditioned to
require the front door to be used as it is now, just opened for patrons exiting and
entering when live music is being played, that would not create a problem for
your business? The reason I ask is because if that is in fact the way you have
been operating the restaurant, then that wouldn't be a change at all in the
operation.
Ms. Manto answered that we now keep the French doors on either side of the
entrance closed at all times; put up glass partitions around the patio; and plants
are placed against the area where the bands play, which is the lounge area.
We are primarily a restaurant with entertainment. The entertainment is made up
of usually 4 instruments and on occasion a singer. The doors are no longer kept
open, however, it is the only way patrons come in and out. I would be willing to
go along with that condition, however, I don't relish further restrictions nor being
put under the spotlight and defending myself, but if that is the case, of course I
will do it.
Commissioner Gifford asked if the show ever included dancers as well
Ms. Manto answered that at one time they had two Brazilian girls who would
come out, but that ended over a year ago during the summer.
Chairperson Tucker asked about the closing times on Thursdays, Fridays and
Saturdays and what time does the music stop.
Ms. Manto answered that the music stops at 1 o'clock and all liquor is to be off
the tables by 1:30 a.m., and lights off by 2 o'clock.
Chairperson Tucker asked staff about the hours of operation including live
entertainment.
• 13
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City of Newport Beach
Planning Commission Minutes
October 18, 2001
Ms. Temple, referring to handwritten page 36, answered that condition 6 limits
the restaurant operation as well as dancing and live entertainment until 12:30
a.m. Sunday through Thursday and 1:30 a.m. on Friday and Saturday. The live
entertainment is not allowed before 9:00 p.m. nor the dancing before 10:30 p.m.
Chairperson Tucker stated that the band music on Thursday needs to stop at
12:30 a.m. The terms of the permit says that the subject restaurant, including
dancing and live entertainment shall be permitted to operate until 12:30 a.m.
Sunday through Thursday and 1:30 a.m. on Friday and Saturday.
Ms. Manto noted that the band takes a break at that time and so records are
played. We are going a bit beyond that 12:30 a.m. sometimes.
Thomas Edwards, appearing on behalf of Carmelo's noted the following:
• Operational changes - physical changes were made around
November 1999; no citations have been received since that time.
• The citations up to October 1999 occurred as a result of open windows,
which was a violation. However after the policy of instituting windows
being closed at all times, no further violations have been cited.
• There has been an increase in the amount of security.
• Security people have been known to remove bottles and glasses from
patrons who leave the premises.
• • The complaint record of 1999, of the 23 complaints, 22 were from Mr.
Martin.
• The changes made with the glass partitions and series of plants were
made after Mr. Sinasek had made the original citations earlier in 1999.
• The restaurant has never been cited for their hours of operation.
• Regarding the rules and ordinances, Carmelo's is in full compliance with
the use permit, they are presently not in violation of any existing
ordinance.
• No citations issued for a period of two years.
• The applicant has been responsive to any and all concerns.
• Security is present on the patio and at the entrance.
At Commission inquiry, Mr. Edwards noted that the noise activity occurring is that
as patrons leave, there is valet parking that causes noise from keys and moving
cars. Kitchen people come in at 6 in the morning to clean up and get ready for
the day. Patrons may be walking to other bars in the area and leaving their cars
in the parking lot. We have not had a particular complaint about beer bottles
until it was raised here this evening.
Commissioner Gifford stated that with respect to condition 10 that the music and
live entertainment be confined to the interior of the building, we have based on
the memos that Code Enforcement has submitted, an absolute statement that
the music is carrying over to See's parking lot and behind Christof's Salon, so
obviously outside the interior of the building.
Mr. Edwards stated that on or about June 7th as amended October 1990,
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City of Newport Beach
Planning Commission Minutes
October 18, 2001
Carmelo's obtained the amended Use Permit 1908. The Planning Commission at
that time approved condition 10 that states, 'that live entertainment in the
restaurant shall be limited to a four piece combo and that all music and live
entertainment shall be confined to the interior of the building and all doors and
windows of the restaurant and lounge shall remain closed during such activity,
except for the main entrance door facing East Coast Highway.' What they were
speaking about at that time was the music and live entertainment was going to
be put in the body of the building /restaurant and confined to the interior and all
the windows and doors were to be closed. The idea being that it could not be
out in the patio area. There were a series of restaurants in 1990 that were
allowed to have amplification out in the patios. Carmelo's took care of closing
the doors and windows except the door on PCH and they instituted voluntarily
on top of that the closing of that door. All the music is in fact in the interior of the
building. They have not allowed at any time, speakers or amplification since
then.
Commissioner Gifford noted that the music is heard outside the building and
therefore, not confined. The problem is there is no distinction between the
playing of the music and the sound of the music. The playing of the music is
taking place inside the building, whereas the Planning Commission has
processed a lot of use permits for restaurants around town and it has always
been considered that the reason the doors and windows are closed is part of
that to contain the sound in side.
Mr. Edwards added that in 1990 as a Planning Commissioner, the concern
voiced was for people who were trying to create more than a restaurant. There
may have been places in the Cannery Village area and the Lido Marina Village
where the way they got around that is that they would start the music very early
so it really became a nightclub as opposed to a restaurant with music. That was
the distinction.
Commissioner Selich, referring to condition 10, asked staff if they concur with Mr.
Edward's interpretation?
Ms. Clauson answered yes. I agreed that it was a valid interpretation. It does
not say that sound shall not be heard or the sound shall not escape and in the
context of the entire condition, I agreed that was a reasonable interpretation.
Commissioner Gifford asked about the terms of intent. Mr. Hewicker's comments
during the June 7, 1990 hearing looking for how it could be achieved to assure
that no sound is transmitted from the building. I know that we have processed a
lot of applications since I have been on the Commission where the condition is
that sound is contained in the interior.
Ms. Clauson stated that is correct, but in this case the condition was determined
to be sufficient to make sure no sound left the facility as opposed to a condition
that no sound shall leave the facility. I agreed that it was a reasonable
. interpretation that if they confined the live entertainment to the interior and
15
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City of Newport Beach
Planning Commission Minutes
October 18, 2001
closed all the doors and windows that the sound would be confined. That
condition was sufficient to accomplish that result. However, you are making an
analysis tonight as to whether the conditions need to be changed because that
has not been accomplished. The sound does leave. They were meeting the
condition because all the windows were closed.
Public discussion was closed.
Commissioner Selich stated that from what we have heard tonight there are two
major issues before us, the noise from patrons leaving the restaurant and music.
The decision before us is, has sufficient evidence been presented to us tonight
that conditions of the use permit are being violated or that detrimental activity
to the surrounding community is taking place that we should call this back up for
review and have a public hearing on it. It seemed like we had more testimony
on the noise related to people departing the restaurant and the activities
around the restaurant as it is closing. I have not heard anything presented
tonight that indicates that the noise coming out of here is any different or any
more disruptive than the noise we have coming from other restaurants in Corona
del Mar. One of the problems we have is the interface between the
commercial and residential area there and the businesses have different types
of noise during different times of the day. We have a situation when you live
next to commercial property there is a higher level of noise to be expected than
if you are living three or four blocks off Coast Highway. I have not heard
anything that would cause me to bring this back for review. It gets down to the
businesses of trying to be a good neighbor and do what they can to control the
noise from the patrons in their area. I would guess that if you took a petition
around every restaurant in Corona del Mar, you would get 26 signatures
complaining about after hour noise from people leaving the restaurants. If it is a
problem, it is a lot bigger than Carmelo's and to single them out on this issue, is
not particularly fair. In terms of the music coming out of the restaurant, I have
been involved with this for some time. Some of the remedies that were done to
the property came out of the homeowners association interests. My conclusions
are similar to those of the Code Enforcement staff and I believe are valid in terms
of the noise. I never noticed the vibrations, you could hear the music when the
traffic was cycling but it was not overly loud or obnoxious and in my opinion we
have all these code standards we can adhere to. I have listened to the noise as
recently as three weeks ago and I don't hear anything that was overly disturbing
or loud. I have heard no evidence tonight to change that opinion. My
inclination is not call it up for review.
Commissioner Gifford noted that we sometimes put residents in a difficult
position because if they come before us and have not complained, we ask
them why they haven't complained and if they make regular complaints to
document their disturbances, then we perhaps say that they complain too
much. I believe that the standard that has been set, while we have looked at
permits such as for the Maritime Museum, Mama Gina's and for Windows, when
we talk about sound being confined to the interior, it has always meant that no
• sound of music or of loud crowds should leave the building. That has gone to the
16
•I.i571
• City of Newport Beach
Planning Commission Minutes
October 18, 2001
point where we have had people install baffles to protect just against the
opening of the main ingress and egress either to a deck or to the front of a
building. I believe that the fact that sound is leaving the building is showing that
the use permit as it is currently in effect, doesn't meet the standard we have set
for ourselves for protecting the health, safety and welfare of residents. We need
to look at the use permit and conform it however it needs to be conformed to
meet the standard that we have been applying to all the other restaurants. I
certainly thank Commissioner Selich for addressing the fact that there may be
other restaurants who are no worse or better than Carmelo's. But they are not
the ones that are before us tonight and I think we have to deal with the issue
that is before us and my recommendation would be to call the permit up and to
do what we need to do to conform it to the standard that I believe we have set
so that it is the intent that sound not leave the building is implemented by the
conditions that are in the use permit. The conditions that are in there currently,
do not give that result.
Commissioner Agaianion noted he is sensitive to the noise issue and that the
quality of life is very important for our residents and supports Commissioner
Gifford's position on this and would be inclined to call this up and see if there is
something we can do to help.
Commissioner Kiser noted he does not agree with things that have been said
about the reasonableness of trying to confine all noise or sound from music or
entertainment within a building. I personally don't think that is reasonable and I
don't know if it is even possible. Given that we have had credible testimony that
there could be a detriment to the peace and welfare of the community related
to the operation of the restaurant, and because there has been some question
raised tonight about compliance with hours of operation and hours of
entertainment, I think it is appropriate to bring the matter for hearing to consider
the present use permit. Personally, I think the most important thing we could do
is to integrate and clarify these various use permits that have been issued over
the years so that we have something clear and the live entertainment permit
could be conformed so that we would not have these questions. I would call it
up. There may be solutions that are not far from the present allowed use once
we clarify what that use is. For instance, I suggested before just keeping the
door closed in the evenings when there is live entertainment would be a partial
solution, possibly the full solution. I think the combination of looking at it, there
has been enough evidence tonight that it should be looked at more carefully
and possibly with the increase enforcement and minor changes we would have
a restaurant and operation that does not raise such concerns within the
community.
Commissioner McDaniel noted he is not in favor of calling this back up. I agree
with Commissioner Selich comments about this being a mixed -use area that will
have its concerns for activities throughout the day. My main concern is what is
going on in the parking lot in the evening and I am not sure that the applicant or
. owner con do a whole lot about that. I know if you play a drum, it is difficult for
that noise to stay within the walls. I don't know how that noise could be
17
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• City of Newport Beach
Planning Commission Minutes
October 18, 2001
contained although I understand what we are trying to do there. I would not be
in favor of calling this up.
Chairperson Tucker stated these are tough matters and involve balancing many
interests. Anytime there is commercial next to residential we have these issues.
We have to make a decision on what we have heard. I am bothered by the
lack of people on the south side of the highway, we seem to have most of the
complaints being the ones that are just north of the facility with the crowds
leaving at night. The police complaints seem to have come mainly from Mr.
Martin as opposed to some of the other neighbors who were also on the south
side. I don't doubt it is bothersome to him but ultimately condition 14 calls for
the disturbance to the community. If there had been several people who had
shown up to complain about the music, I would be more persuaded to bring this
matter back. It is our goal, especially in the new permits we see, to try to figure
out how to keep all the sound inside that we can keep inside. It is a worthy goal
but an unrealistic goal to keep all the sound inside and should not be the basis
for calling this permit back based upon the other evidence we have in terms of
the code enforcement officer. At this point, I am going to side with not bringing
it back for further review. I hope that the Carmelo's folks will bring in their hours
of operation to be consistent with the permit and that the front door is closed.
Motion was made by Commissioner Selich that based on the evidence
presented tonight that the Planning Commission not call the Use Permit 1908A for
review.
Commissioner Kiser clarified with staff that if the Commission is split on the matter,
as it is likely we will do tonight, that motion does not carry.
Ms. Clauson answered that the action that is being decided tonight is whether to
call this matter up for review. If you do not have an affirmative action vote to do
that, it is not being called up.
Commissioner Kiser stated that the matter before us to call it up, the vote should
be yes to call it up or no, to not call it up.
Substitute Motion was made by Commissioner Kiser to set Use Permit No. 1908 A
for review by the Planning Commission on November 8, 2001.
Ayes: Gifford, Agajanian, Kiser
Noes: Selich, Tucker, McDaniel
Excused: Kranzley
Commissioner Selich withdrew his original motion.
a�x
0
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le City of Newport Beach
Planning Commission Minutes
October 18, 2001
SUBJECT: Newport Center, Block 600 Office Building
680 Newport Center Drive
• Traffic Study No. 2001 -001
Review of a traffic study prepared pursuant to the Traffic Phasing Ordinance for the
construction of a 54,729 square foot office building.
Ms. Temple noted that the Traffic Phasing Ordinance (TPO) is an ordinance that
addresses the requirement for traffic studies to study traffic impacts related to new
development. If certain types of impacts are identified, then mitigation would be
required through the traffic study process. The Ordinance essentially sets up a series
of steps of consideration and approval for projects depending upon their size,
complexity and most particularly on identified traffic impacts. This particular report
prepared pursuant to the ordinance and its guidelines actually meet all the criteria
defined as objective standards within the ordinance and therefore, the traffic study
meets all the criteria and should be approved. That makes it an unusual approval
in the sense that there is not a lot of discretion that the Planning Commission has in
terms of its consideration. The discretionary parts of the Traffic Phasing Ordinance
really flow more directly out of the more complex projects or those projects that
actually have identified impacts where the Commission and /or the City Council
not only identifies and places requirement for mitigation or a proportional
contribution to a mitigation measure and in the most complex of cases may also
approve the project in multiple phases in association with a development
agreement, which are clearly discretionary actions. It is a little complex and since
there is no other discretionary action such as a use permit, variance, zone change
amendment or any other action that are clearly identified discretionary actions on
part of the Commission, your usual ability to deny this project are not present here.
This is one of those times when the ordinance chooses to give the Planning
Commission the overall approval and right, but in this case, it is somewhat limited.
Commissioner Gifford clarified that the Planning Commission has sufficient
discretion to impose the conditions that are discussed in the report as
recommendations or suggestions that are attached to the Traffic Management
Plan.
Ms. Temple answered that typically in association with the TPO approvals, there is
the Traffic Impact analysis and the report includes onsite circulation and other
features related to the traffic operations of the proposal. Commonly conditions
related to those issues are attached as well.
Chairperson Tucker reiterated that the TPO tells us that in the event there is a
certain level of traffic then a study is going to be conducted, the Traffic Engineer
identifies the intersections to be studied and if any of those intersections ends up
with I% or more increase in traffic due to the project then we end up with a traffic
study. That traffic study tell us whether the levels of service have either become
worse or unacceptable levels of service are made worse. In this particular traffic
study the levels of service aren't made worse and so that is where we end up with
19
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Item No. 3
TS 2001 -001
Approved
City of Newport Beach
Planning Commission Minutes
October 18, 2001
the Planning Director's comment that we really don't have a lot of discretion to do
anything because it has not tripped the requirement that we go to the next step of
analysis.
Ms. Temple noted that staff has tried to do a good faith evaluation on the
environmental determination on this given the unique nature of the approval and
hod concluded and suggested to you in the staff report that this qualified for a
statutory exemption as a ministerial type of action. Given the nature of the other
aspects of the conditions of approval that perhaps that was not the best course of
action. So, I would suggest to you that finding be modified in your final action that
the environmental determination be a categorical exemption class 32, which is
classified as infill projects of which we believe all the criteria are met by this project.
They include, (she then quoted from the CEQA Guidelines) 'the project is consistent
with the applicable General Plan designation and all applicable General Plan
Policies as well as with applicable zoning designations and regulations. The
proposed development occurs within City limits on a project site no more than five
acres, substantially surrounded by urban uses and this particular site is a parcel that
is approximately 2 '/2 acres in size. The project site has no value as habitat for
endangered rare or threatened species. In fact the site is currently a parking lot.
And, the approval of the project would not result in any significant effects related
to traffic, noise, air quality or water quality.' Those all meet general regional criteria
for non - significance relating to noise and air quality and our traffic study
documents compliance as well and that the site can adequately be served by all
required utilities and public services. We believe that this categorical exemption is
equally suitable for this project and would suggest that the findings be so modified.
Mr. Edmonston stated that the study did look at a number of intersections and we
reviewed the trip generation rate that was used in the study and the distribution of
those trips onto the street network into the City and there were no intersections that
were impacted per the Traffic Phasing Ordinance. The study did include a
concern over the queuing for the new gated area that has been addressed; the
consultant has made a recommendation. My staff's biggest concern was the issue
of parking, we knew there was adequate parking in the block but maybe this
would disturb the distribution of the parking. And again, the consultant did a
thorough analysis of that including a discussion with the Parking Management
Company and The Irvine Company to determine that if changes were
recommended, were they practical to carry out. It turns out that they are, so I
don't believe that there is any negative issue that we have associated with this
project.
Commissioner Kiser, referring to handwritten page 33 of the staff report, noted that
in condition of approval 2, it may be better to say that 'shall be located at least 45
feet' as opposed to the language there is to allow flexibility and yet keep it back
45' from the curb line.
Mr. Edmonston answered that would be an acceptable alternative, he does not
see a problem either way in terms of looking at the site plan and the space that is
isthere.
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City of Newport Beach
Planning Commission Minutes
October 18, 2001
Commissioner Kiser stated it is a minor point but it should be mandatory. Isn't the
point of this condition to make sure that the gate is at least 45' back to allow for
the queuing?
Mr. Edmonton answered, yes, and agreed it could read, 'shall be a minimum of
45'.
Chairperson Tucker clarified that the 1% traffic volume analysis for Coast Highway
and Jamboree Road indicated a northbound existing peak hour volume of 599
plus peak hour regional growth of 30 plus approved peak hour volume, which is
supposed to add up to the projected peak hour volume, which is the same
number as the original number. I understand that number really is 599 plus 30 plus 8
or 637, is that correct.
Mr. Edmonston answered that is correct and it does not make any difference in the
level of service calculation.
Chairperson Tucker then asked about the 1% traffic volume analysis at Coast
Highway and Jamboree Road. It indicated that the westbound p.m. peak hour
project volume would be 0. 1 was curious as to why nobody coming out of the
project would be headed in that direction.
10 Mr. Edmonston suggested looking at Exhibit in the Traffic Study, which is the map
showing the distribution, assumes that anybody headed towards Huntington Beach
would be coming down Jamboree and turning on to Coast Highway rather than
coming out Newport Center Drive or some other exit onto Coast Highway where
they would already be west bound approaching the intersection. In this case they
are west bound leaving the intersection but not westbound approaching it and
that is what the 1 %, table looks at, the approaching traffic.
James Campbell suggested that the resolution be modified in Section 3 to
incorporate the Categorical Exemption and information that Ms. Temple had
indicated. We can draft the appropriate language for that finding. Another
change I would have is to condition 1 as it relates to the height of the structures.
The actual parking structure is not to exceed three levels above natural grade.
That is the only change that I have.
Chairperson Tucker noted that condition 5 should read 12 months, not 60 months.
Tim Poone, representing The Irvine Company at Commission inquiry stated he
agrees that the changes are acceptable.
Motion was made by Commissioner Gifford to approve Traffic Study No. 2001 -001
and adopt Resolution with the following changes:
• Section 3 - a new section is to be added (e) containing the verbiage that
staff will develop to implement the exemption that has been discussed.
• Condition of approval 1 in the fourth line change two to three levels.
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City of Newport Beach
Planning Commission Minutes
October 18, 2001
Condition 2 the word should is replaced by shall and after the word
located, at least are inserted and the words to 45 are deleted.
Condition 5 in the second line the word form changed to from.
Ayes: McDaniel, Kiser, Agajanian, Tucker, Gifford, Selich
Noes: None
Absent: Kranzley
SUBJECT: CPI Designs
4545 MacArthur Boulevard (Radisson Hotel)
• Use Permit No. 1547
Request to amend the facility's Use Permit (UP No. 1547) to construct a 4,500
square foot, operrsided, solid roofed patio structure located in the area of the
existing tennis courts on the hotel property. The proposed structure will be used
for special events, weddings and receptions in conjunction with hotel events and
banquets.
Todd Weber, Associate Planner gave an overview of the staff report noting that
this is a request to convert one of the existing two tennis courts into a function
space that will have a permanent shade structure. The 328 parking spaces
mentioned in the analysis of the staff report should read 349: an issue that came
up today and upon a site inspection confirmed the parking on site. He then
noted the following:
• The shade structure will be about 24 feet in height and have a standing
metal roof with the color subject to the Planning Director's approval.
• Based on the existing restroom and parking on the site, staff conditioned
that this facility not house concurrent assembly with the existing meeting
space in the building; as they do not have adequate parking or
restroom areas to have separate groups.
• The applicant indicates it is not their intent to increase the number of
groups or the size of groups but to better serve the existing groups that
the hotel now books and serves.
He concluded that based on the above and that the applicant is not requesting
a change to their existing retail alcoholic Beverage license, staff recommends
approval of the applicant's request by adopting the attached resolution.
Commissioner Selich brought up the issue of the storage bins on site. We met with
the general manager and confirmed that the bins are taking up 8 of the 349
spaces. We will need to ask the applicant how long those storage bins will be
needed because they need to be removed to assure that the facility is meeting
its parking requirements.
Public comment was opened.
Mark Zovic, General Manager of the Radisson Hotel and Vice President of Lark
and Inc., which owns and manages this hotel. What we are asking for is that
people have asked to use the tennis courts for outside functions. Since we do
22
INDEX
Item 4
UP 1547
Approved
City of Newport Beach
Planning Commission Minutes
October 18, 2001
not use the two tennis courts and can operate with one court, we want to
convert one to be used for the other functions. Unlike the Twin Palms restaurant
before, we are both the commercial user and the residential user. If we cause
problems we hear about them from our guests. If we have a noise problem, we
hear from our guests and have to give money back; if we have a parking
problem, we also hear from our guests and therefore they will not come back.
We are very sensitive to all of these things. We are not going to bring in any extra
people in and load up our services. Our kitchens can't handle it and we don't
have the equipment. What we can do is take a meeting from the inside and
move them outside for lunch and then bring them back inside. We can give
them a nicer experience. The same thing for the weddings, they like the
ceremony on the property and it would help us tremendously to get the wedding
ceremony outside and bring them in for dancing. We don't plan on having any
music except for background music because if we do have noise, it interferes
with our guests. The four storage bins outside are temporary and have been
used during our renovations the past year and a half and we are within 2 '/R to 3
months from getting rid of them. We had one storage bin there that was
permanent against the building, but we are not planning on putting that back.
At Commission inquiry, he noted that the four bins came out last year when we
started the renovation. We took some rooms that we had for storage inside the
hotel and turned them back into sleeping rooms during this process. We are
40 planning on moving all of that off the premises.
Commissioner Agalanian asked why a permanent structure is necessary? An
event that is taking place in the hotel now, why do you need to go outside?
Mr. Zovic answered that it is for the ambience and people like to step out, not be
in meeting rooms all day long. If for some reception they want alcohol to be
served, we can come back and ask for it. We had asked for tents, but that was
not acceptable. People want a roof out there for shade or the possibility of rain.
This will be an additional amenity to the hotel. Now, we can use our banquet
rooms as break out rooms because we can put them in this section for
luncheons. It would increase the type of events we host such as associations.
They like to have a large room for their meeting but then they want all these
break out rooms. It won't increase the number of people; it will give us the
opportunity to go after other businesses that we can't accommodate now
because of the space they need. We have to be careful as that is next to our
pool. Our other guests are using the pool and therefore we have to be very
careful of what and how that covered patio will be used.
Commissioner Kiser asked about condition 4. The second sentence says that the
outdoor pavilion shall not be occupied concurrently for assembly purposes with
the facility's interior conference and meeting space. Does that work for you?
Mr. Zovic answered that he took that to mean that he could not have all his
meeting space filled with groups and also the outside filled with groups. That is
• fine, as the facility could not handle that.
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City of Newport Beach
Planning Commission Minutes
October 18, 2001
Commissioner Kiser asked if some of the interior conference space would be used
at the same time lunch was being served to guests. With respect to condition 5,
is it true that no alcoholic beverages will be served or consumed in the exterior
space? Are we just talking about serving alcoholic beverages out there?
Mr. Zovic answered yes, that some of the interior conference space would be
used at the same time lunch was being served. Consumed is difficult because
alcohol is consumed around the pool where guests go inside and bring it out. I
assumed that you meant by this condition that you did not want me to set up a
bar outside in this area to serve alcohol.
Commissioner Kiser answered that it is fairly clear that is what it means, but I am
trying to determine whether it would be intended that a bar could be set up
inside the hotel to serve people as they go outside for lunch. I don't know if that
is a problem, I just want to know if that is something you were going to do.
Mr. Zovic answered that at some point we may ask if we could, I don't know.
Commissioner Kiser stated that it may be a liquor license compliance issue.
At Commission inquiry, Mr. Zovic stated that he read the conditions of approval
to mean that he could not fill up all the inside and then sell the outside as an
extra event, that is what he interpret the conditions of approval to mean. If we
have inside, we may move some to the outside. There are many times we may
have more than one or two groups, but what we are saying is that we will not fill
all the interior and then still sell the outside as part of a ballroom. If someone
wants to come in for lunch and my ballrooms are empty, I would like to be able
to serve lunch on the outdoor pavilion as long as I am not exceeding the total of
everything. We have a limited amount of what we can handle.
Mr. Campbell noted that the applicant is correct. Our intent is not to have the
double occupancy because it could put a burden on parking as well as
restrooms. To have a function at capacity to be able to move outside, that is the
intent. We can facilitate changes to the condition to reflect that intent of
limitation. I recommend that we look at the occupancy limit that is on file with
the Building Department and use that number as the maximum capacity of both
facilities combined at any one time.
Mr. Weber added that the second sentence of condition 6 should be changed
to, `.....an amendment to the Use Permit is required.' The liquor license language
should be limited to condition 5.
Chairperson Tucker clarified that if alcoholic beverages are being consumed out
in this area, isn't there a change in the Use Permit that would be required as
opposed to serve?
. Ms. Temple answered yes, and suggested that on condition 5 that the City does
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Planning Commission Minutes
October 18, 2001
not approve requests for new on -site liquor licenses, that is an ABC function. It is
once again, '....City approval of a use permit pursuant to the Alcoholic Beverage
Outlet' Under the ABC that would be considered an expansion of the premises
and so they would need to get a Use Permit pursuant to the ABO of the City as
well as an amendment to their liquor license from the ABC.
Public comment was closed.
Motion was made by Commissioner McDaniel to approve Resolution 1541 as
amended by the following:
• Section 1 of the resolution, change the applicant's name to Zovic.
• Section 1 of the resolution, strike the phrase in the area of, and add, '..to
take the place of...'
• Section 3 b) at the hotel and will.
• Section 3 d) after the words outdoor entertainment, strike etc. and add
or other use requiring specific approval under the solid roof structure.
• Conditions of approval number 1, second line elevations dated as
received by the City Planning Department on ....
• Wherever references are made to the pavilion change that to covered
patio so the some wording is used in the resolution, application, staff
report and conditions.
• Condition 5 after the word serve, add or consumed.
Ms. Temple added that the statement she made regarding to also needing a use
permit pursuant to the Alcoholic Beverage Ordinance are interactive to a
certain extent with how the ABC determines when licenses are changing or
expanding. It could be that there are some forms of short term or event type
approvals that could be achieved that would not necessarily be an expansion of
premises pursuant to the ABO. It may not be in every case that they would be
precluded under the Alcoholic Beverage license from ever serving or consuming
out there. It is our intent that if they start utilizing it for regular service of alcoholic
beverages in a manner that required a new ABC license since it would be
considered by them to be an expansion of premises, that is one of the criteria in
our ordinance that would then trigger the need for an ABO use permit as well.
You could write the condition in that way, but that would foreclose their
opportunity to get some of these other type of event related licenses.
Chairperson Tucker asked for if there was a different way to write this.
Ms. Temple answered that perhaps we could say should any changes to the
service of alcoholic beverages in association with this covered patio incur the
need to change, amend or alter the alcohol beverage license, that if provided
by our ordinance it would demand a new use permit. I can work the wording
out, but the point is that when they get to the point of needing a premise
expansion license, it would also be an ABO use permit.
Commissioner Gifford asked if we know that the underlying use permit does not
• prevent consumption of alcohol at the pool or tennis courts? Why do we need
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Planning Commission Minutes
October 18, 2001
0
to limit this further? Whatever is going on at the pool is probably fine to be
on covered patio.
Ms. Temple answered that is not the kind of condition that we typically apply.
Hotel properties often do have small bars and service particularly close to pools.
I don't believe it is present here.
Commissioner Kiser noted he was looking for clarification of the consumption of the
alcohol as opposed to the serving. I don't know if there are any issues even if they
had a bar out there and served liquor. It is a matter of clarification that the
condition would work because if they were currently allowed the consumption of
alcohol beverage outside, they would continue to be with the amendment as
proposed.
Ms. Temple stated that the reason why we placed the condition in the first place is
that we want to make sure that they understood if they got to a point where they
needed an expansion of premises license change, it would also trigger the need
for a use permit under the ABO. That is the point we are trying to make.
Ms. Wood proposed that the following language replace condition 5. 'If the service
of alcohol on the covered patio constitutes an expansion of premises per State
Alcoholic Beverage Commission regulations, City approval of a Use Permit pursuant
to the Alcoholic Beverage Outlet Ordinance shall be required.'
Commission agreed.
Chairperson Tucker continued with his amendment:
• Condition 5 to be replaced with the verbiage provided.
• Condition 6 the language as proposed for the second sentence.
• Condition 7, modify to say, approval of the finished appearance and
color of the metal roof by the Planning Director is required.
• Condition 8 shall be added that, Except as amended or supplemented
by these conditions, the original Use Permit shall remain in full force and
effect.
Commissioner Kiser added that condition 6 says no outdoor, that should be
deleted. This was agreed to by the maker of the motion.
Mr. Zovic asked if that means no outdoor music at all? We would like to have some
music. We are different than Carmelo's as there is nobody to complain about
noise. I would like to propose that we change that background music is allowed.
Ms. Wood reminded the Commission that there were complaints received by staff
from the Twin Palms Restaurant. So while I don't think surrounding residential would
complain, there will be complaints from hotel guests. We should be careful how
we write this condition and define what we mean by background noise and have
limits on it.
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• City of Newport Beach
Planning Commission Minutes
October 18, 2001
Mr. Zovic stated that we own the hotel and if we get complaints, we have to
refund the money.
Chairperson Tucker asked for clarifying verbiage in condition 4.
Mr. Campbell stated that the condition could read, 'That the combined occupant
capacity of both the interior meeting space and the covered patio shall not
exceed the maximum capacity of the interior meeting space as it exists on
October 18,2001.'
Commissioner Kiser asked if this works, as it is completely different then the intent. I
think we have a potential for increasing the occupancies.
Chairperson Tucker stated that as long as the total capacity does not change, the
parking requirements do not change. Let's hear what changes are on item b and
come back. Let's get the motion on the floor.
Ms. Temple added that certain types of amplified music as background noise seem
to be okay and certain limited forms of live entertainment in association with
events might be okay. So maybe the question is, is the real interest in limitation that
no amplified live entertainment is permitted in the outdoor pavilion area? Is that
broad enough, or too broad?
• Commissioner Kiser noted that there are office buildings around the facility.
Allowing by use permit the outdoor amplified sound requires a lot more
consideration and issues than we can do tonight. I propose that there is no way
that we should allow amplified outdoor music or in fact outdoor live entertainment
either. We need to limit this by hours, by types of entertainment and I think we
would get into a problem trying to push to get something together tonight.
Mr. Zovic stated that the answer is to say no amplified music. If the music is not
amplified, you will not have noise. One person playing a guitar is not going to
carry. When we have background music in the hotel, it has to be subdued. All I
need is guitar and piano, I can live with that.
Discussion followed on live entertainment, restrictions, type of musical instruments,
nightly entertainment, limit of decibels.
Commissioner Selich stated he would like to pass the conditions tonight, let staff
clean them up and then the Commission can review the minutes and if they don't
meet our intent, we can change them. We are almost getting to the point of
micromanaging this stuff.
Commissioner Gifford agreed that we should pass this tonight with something that
says no amplifying sound shall be outside and then in order to give the applicant
the chance to come back to us if that doesn't work for him then we can say that
we can review this in 90 or 100 days so that the applicant does not have to pay
• another fee.
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. City of Newport Beach
Planning Commission Minutes
October 18, 2001
Commissioner Agajanian and Chairperson Tucker agreed to pass this tonight.
Chairperson Tucker reiterated that on condition 6 there is no amplification, no
drums and no brass. Mr. Zovic agreed to all the changes suggested.
Commissioner McDaniel agreed to the changes on the motion.
Ayes: McDaniel, Kiser, Agajanian, Tucker, Gifford, Selich
Noes: None
Absent: Kranzley
Commissioner Selich asked that staff check on the storage bins, as they are a
problem.
Ms. Temple agreed and added that they are in violation because the applicant
is not providing the full compliment of parking and as a permanent feature they
would require a use permit as well.
ADDITIONAL BUSINESS:
a) City Council Follow -up- Ms. Wood noted that at the last Council meeting of
the October 9m there was nothing directly connected to the Planning
Commission however a few things that may be of interest were that in the
Study Session there was discussion of a proposed Harbor Commission as a
follow up from the Harbor Committee that the City Council appoint and
produce the Harbor Element to the General Plan that was recently
approved by both the Planning Commission and the City Council. Among
the things that are being considered for this Commission are reviewing
some land use permits that may have some affect on the harbor. The City
Council has asked staff to come back with specific duties for the
Commission and clearly defining what those land use permits are if there is
going to be referral process. There was a presentation from the Police Chief
on the 4m of July operations in West Newport. There was a request from City
Council to staff to increase owner occupancy of houses in that area so that
there might be less of the short-term rental, which Council believes to
contribute to some of the problems that we have on the 4th. On the regular
agenda, the Council approved the contract for the construction of the first
phase improvements in Balboa Village. This is one of the first big
recommendations from the former Balboa Peninsula Planning Advisory
Committee.
b) Oral report from Planning Commission's representative to the Economic
Development Committee - none.
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• City of Newport Beach
Planning Commission Minutes
October 18, 2001
C) Matters that a Planning Commissioner would like staff to report on at a
subsequent meeting - Commissioner Gifford noted that two new signs
have appeared on Balboa Blvd and she would like to know if they
conform to the Sign Ordinance. One is a second marquee on the far side
of the Malarkey's building; also a second one is a mural on Crabby
Kenny's building. Continuing, she noted that she is disturbed that we
have conditions that are related to sound put in the use permits and we
have three ordinances. We continue to impose on people these
conditions and if we don't believe in them or believe it is possible, we
should stop doing it. We need to decide what our standard is. I am
troubled by the whole issue and whether we expect them to be enforced
and if we don't we shouldn't put them in and the whole layover of the
sound ordinances. Do we want to have this as a discussion item or a
report from staff; I would like to have some follow up on this. Chairperson
Tucker noted the Planning Commission should talk about this. I would like
to have consistency. Commissioner Kiser added that a sign went up by
the Avila's restaurant in Corona del Mar, and wonders if it conforms?
d) Matters that a Planning Commissioner may wish to place on a future
agenda for action and staff report - Commissioner Selich stated that he
called up for review the modification on Carnation Avenue. He asked staff
• to put on a future agenda a report on height limits on Carnation as
proposed by City Council.
4)
e) Report from Planning Commission's representatives to the General Plan
Update Committee - Commissioner Agajanian stated that questions were
reviewed on the state of the city report.
Status report on Planning Commission requests - Ms. Temple noted that the
Pennzoil sign is gone from the Jiffy Lube window; we are now on our fourth
administration citation (totaling $1,300 to date) to the Prudential Realty
about the phone number on the clock. Citations will continue to be issued
and soon we will sit down and discuss with Mr. Ohl, Deputy City Attorney, at
what point a judge would be willing to perhaps consider some type of legal
course of action if we get no response from the business.
g) Project status - none.
h) Request for excused absences - none.
ADJOURNMENT: 10:15 p.m.
EARL MCDANIEL, SECRETARY
CITY OF NEWPORT BEACH PLANNING COMMISSION
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Adjournment