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Home My WebLink About11/09/2000• • • CITY OF NEWPORT BEACH Planning Commission Minutes November 9, 2000 Regular Meeting - 7:00 p.m. ROLL CALL Commissioners McDaniel, Kiser, Agajanian, Selich, Gifford, Kranzley and Tucker: Commissioner Tucker was excused STAFF PRESENT: Sharon Z. Wood, Assistant City Manager Patricia L. Temple, Planning Director Robin Ciauson, Assistant City Attorney Philip D. Kohn, Special Counsel for the Planning Commission for the Use Permit No. 3626 Revocation Hearing Rich Edmonston, Transportation /Development Services Manager Eugenia Garcia, Associate Planner Patrick Alford, Senior Planner James Campbell, Senior Planner Ginger Varin, Planning Commission Execsiti*e Secretary Minutes of October 19.2000: Motion was made by Commissioner Kranzley and voted on to approve, as amended, the minutes of October 19, 2000. Ayes: McDaniel, Kiser, Agajanian, Selich, Kranzley Noes: None Abstain: Gifford Absent: Tucker Public Comments: None Posting of the Agenda: The Planning Commission Agenda was posted on Friday, November 3, 2000 Minutes Approved Public Comments Posting City of Newport Beach Planning Commission Minutes November 9. 2000 INDEX • SUBJECT: Koll Office Site B GPA and PC Amendment Item No. 1 MacArthur Boulevard /Jamboree Road GPA 97 -3 (B), Zoning Amendment 905, Traffic Study No. 119, Review Of a General Plan Amendment and Planned Community Amendment and EIR No. 158 to allow an additional 250,000 gross square feet of office use within Office Site B of the Koll Center Newport (KCN) Planned Community. The amendments will provide for the construction of a ten -story office tower. Continued to 12/07/00 The applicant requested a continuance to December 7, 2000. Motion was made by Commissioner Agajanian to continue this item to December 7, 2000 Ayes: McDaniel, Kiser, Agajanian, Selich, Gifford, Kranzley Noes: None Absent: Tucker xxx SUBJECT: Billy's at the Beach and The Charthouse Restaurant Item No. 2 2751 West Coast HH ghway and 2801 West Coast Highway Use Permit No. 3674 • Use Permit No. 3674, Off -site Parking Agreement, Off Site Parkin Accessory Outdoor Dining Permit Nos. 67 and 68 Agreement Accessory Outdoor Request to add accessory outdoor dining to two existing full service restaurants, a Dining Permit Nos. 67 768 sq. ft. outdoor dining area for the existing Chart House Restaurant and a 515 and 68 sq. ft. outdoor dining area with a 220 square foot service area, for the existing Billy's At The Beach restaurant. A use permit is required for Billy's At The Beach because the . proposed area of the outdoor dining area will exceed the Approved permitted 25% of the net public area of the interior of the restaurant. The proposal includes a request to approve an off -site parking agreement for one additional required parking space for the dining area and for the elimination of one on -site parking space and relocation to the off -site lot. Associate Planner Eugenia Garcia noted that in the staff report Condition 33 requiring the approval of the Coast Commission if this project were approved, is not necessary and is to be removed. This project is not subject to approval by the Coastal Commission. She then made a visual presentation noting the following: • Location of project in multi tenant building. • Chart House has a significant amount of office use. • Proposal is for outdoor dining for both establishments. • Billy's at the Beach is for 515 square feet approximate and the Chart House is for 168 square feet approximate. • Chart House meets requirement under the Outdoor Dining Ordinance 1 • • City of Newport Beach Planning Commission Minutes November 9, 2000 as less than 25% of the indoor net public area of the restaurant. • Billy's at the Beach exceeds that by 92 square feet for a total of 515 square feet. • Use Permit is required for that area over 25% for Billy's. • An Off -site parking agreement is in existence for an off site lot at 2700 West Coast Highway. • An additional lot at 2620 Avon Street is also part of the proposed project. • Slides then depicted: ➢ entrance to Billy's ➢ area between the two restaurants where there are currently seven parking spaces that will be reconfigured ➢ bayside views of outdoor dining to be located for both facilities ➢ front of Billy's on the bay with public access easement provided ➢ access easement from Coast Highway to both establishments ➢ additional public access to bay provided (not required) ➢ off site parking behind Seven Seas Travel and Radio Shack where the project owner leases fifty parking spaces under a long -term lease • Leased parking spaces are for nighttime use only. • Off site parking lot at 2620 Avon Street (in close proximity) for additional • parking spaces to be provided by applicant. Continuing, Ms Garcia noted that the following findings must be made in approving this application: • Proposed outdoor dining is accessory to restaurant uses. • Proposed outdoor dining is not detrimental to health, safety, peace, comfort and general welfare of the community. • Proposed outdoor dining will not result in the reduction of the existing parking spaces. • Find that the lot is located so as to be useful in connection with the restaurants and the office uses. • Parking on the off site lot will not create undue traffic hazards in the area. • The lots are under the same ownership or the owners of the lots have a common ownership with entitlement for immediate possession and use. • The offsite parking agreement shall be recorded with the Office of the County Recorder. • Fee established by the City Council is paid for administrative costs. • Pursuant to Bayfront Restaurant Regulations an acoustical study is required and is supplied by the applicant. • Recommendations of the Acoustical Engineer have been incorporated into the conditions of approval. At Commission inquiry, Ms. Garcia noted that the Acoustical Engineer did sound testing from across the Bay and took measurements. These have been 40 incorporated as part of the report. The conditions also require no paging or INDEX City of Newport Beach Planning Commission. Minutes November 9, 2000 INDEX amplified music. Speakers are permitted with pre- recorded music. Chairperson Selich asked about the additional parking for Billy's on the Beach, the additional outdoor dining requires the three extra spaces, is that correct? Staff answered yes. Commissioner Kranzley noted, and it was affirmed, that the only reason this project is before the Planning Commission is because they are asking for the additional square footage. Otherwise, it would be done through an Accessory Outdoor Dining Permit and would not require a Use Permit. Public comment was opened. Gordon Barienbrock, 3000 West Oceanfront noted he owns the land at 2801 and 2751 West Coast Highway. Additionally, he owns the land at 2620 Avon that is the additional parking lot being discussed. He noted parking is a concern with this project because we have increased by 92 square feet the outdoor area and we have eliminated three parking spaces. The net affect on parking is negative five spaces and is only a problem during the daytime use. During the day, we have only one restaurant operating, Billy's at the Beach. During the nighttime I am leasing 50 spaces across the street. Those fifty spaces give me a total of 135, that is 12 more than currently needed and 7 more spaces I will need if the proposal is apl5roved. However, during the daytime, we are operating Billy's for lunch on a waiver of 34 parking spaces. The reason the waiver was granted was that during the daytime the crowds are much less than at night; some people during the daytime walk to lunch; parking lot is shared with an office building that is somewhat empty (about 25 %) when the workers leave for lunch. A parking attendant during the day provides tandem parking and we can easily add 25 cars to the lot. We have been serving lunch for some time. with no problem on the waiver. Now, we will have 5 spaces less. I would like to continue with the waiver and not tie up the property at 2620 Avon with parking agreements. However, I would stipulate that the property at 2620 Avon would only be used as a parking lot for these two buildings. I would agree to make that a condition of the Use Permit. If we put recorded agreements on it, that has lasting affects and for five parking spaces for two hours a day, 1 hate to tie up an entire lot and never be able to do anything with it. We would agree easily that we would not serve lunch at Billy's if for any reason, anything happens to that parking lot. I have no intention of selling or developing the parking lot, but I would like to keep it as unencumbered as possible. For the last eighteen years, I have been leasing 50 parking spaces across the street. Most of our parking is on site. We have more parking on site than any other restaurant along there with the exception of Windows on the Bay and Asia 101. We have 85 spaces on site, 25 additional cars that can be placed in there with tandem parking. We park some employee cars across the street, roughly 20 a day. We have 30 spaces left for use. In the event that you feel an off -site agreement is necessary, I would go along with it and I would devote the lot at 2620 Avon entirely to this project that could have 26 spaces • City of Newport Beach Planning Commission Minutes November 9, 2000 on it. I would then be completely independent of other property owners. Commissioner Kranzley asked how important the outdoor speakers are? Mr. Barienbrock answered that he would like to have some background music. The reasons for the outdoor seating are for smoking and a place for customers to wait for their tables. Billy's would like to do business outdoors during the lunchtime, as it is more desirable. People like to dine with background music. It is not our intention to have any entertainment. Both of the establishments are dinner houses and cater to an older crowd that is fairly conservative and reside in Newport Beach. At Commission inquiry, he noted that the net change in dining seating is 24 for Billy's and a little more for the Chart House. Billy's has a service bar available for customers only, not open to the public. The total increased parking is two parking spaces. We are losing three parking spaces because we are using the parking area, which nets five. This is not a problem in the evening because we have 12 spaces more than necessary but at lunch, we are currently operating under a waiver. We average about twelve cars at lunch and have at least twelve cars left from the office building. There is parking on the other side of Coast Highway and today there was not one car parked between Chili's and the Japanese hotel. That means 20 -30 parking spaces were empty. Parking is not a major problem. We have been sharing the . parking between the offices and the restaurant for years with no problems. We have parking attendant service from 8n the morning until midnight with the ability to provide tandem parking if necessary. Commissioner Kiser asked if the parking attendant is for the two restaurants combined. Mr. Barienbrock answered that he has a parking service and it depends on the need. They have worked out what times to work. We would bring in two during the lunch hour if business calls for it. We have never used valets to park customer cars in the off site parking lots including evenings and weekends. Commissioner Kiser then asked about the proposal for the lots. Are you proposing to terminate your lease on the 50 spaces and have your sole off site parking be on the lot that you own? Mr. Barienbrock answered that is not part of this request. If you want an off site parking agreement to cover the five parking spaces, I would grant that with no problem if they could also be incorporated in those other fifty spaces. I don't want to tie up that parking lot for five parking spaces an hour and a half a day. Commissioner Kranzley asked why this dining area was important enough to come to the Planning Commission and was answered that they had to come before the Planning Commission due to moving parking spaces. If it were just the 92 feet, we would not have done it. The space is that big and we could either use it as seating area or additional garden. The restaurants are trying to INDEX City of Newport Beach . Planning Commission Minutes November 9, 2000 INDEX get as much area as they can. Billy's is a very small restaurant. He is trying to make the most of it. We anticipate that the outdoor area will be used in fair weather. During the cold weather, people will move inside. We don't think both areas will be full at the same time. Commissioner Kiser asked about Condition 6, the outdoor speakers ceasing at 10:00 p.m. Sunday through Thursday and either I 1 p.m. or midnight Friday or Saturday. Mr. Barienbrock answered he would have no problem shutting them off at 10:00 p.m. all nights. However, he would like to make the decision. He concluded that there will be no noise on Lido Isle, if anybody can hear any of the noise from the restaurants, we will change it so they can't. The background music will be low. The operator of the restaurant is here tonight and can answer any of your concerns regarding the operation and noise. Public comment was opened. Martin Weinberg, 100 Via Lido Nord, spoke in opposition to this application. He asked about the notification process for this item, noting that there would be a substantial showing of people who have an interest on the outcome of this application who live on Lido Isle. Whatever happens to Billy's in that area has • an impact on people who live on Nord14566 Soud as well. It seems unnecessary to have outside speakers along with the doors continually opening for waitress purposes that will also create a lot of noise. Noise travels across the water, we had this some issue with Windows on the Bay and Joe's Crab Shack. If Billy's and the Chart House are granted this application, any waterfront restaurateur will ask for this as well. The noise will be a real problem to the people who live on the water. Ms. Temple noted that when the City Council reviewed specifically notification requirements addressing the separation of the properties by water and /or roads it was amended to require that the City delete the distance of the channels and roadways when determining a 300 -foot radius requirement. There is no simple requirement for everybody on Via Lido Nord or Via Lido Soud to be notified. It is anyone within a 300 -foot radius, given the omission of the water. This map illustrates for the Commission, the radius that received notice. (presented copy of mailout map to Commission). Chairperson Selich stated that we did follow the City Council procedure in terms of notification. Commissioner Kranzley asked the speaker if it is his wish that no bayfront restaurant would have outdoor dining? He was answered yes, no outdoor dining. Commissioner Kiser asked if there has been a restaurant in the approximate . City of Newport Beach Planning Commission Minutes November 9, 2000 location of Billy's that had outdoor dining? Mr. Weinberg answered Joe's Crab Shack. They put in triple windowpane and closed their windows. We do not hear any music from other restaurants on the waterfront. Our house is opposite of Billy's and just to the left. Richard Wood, 117 Via Lido Soud noted that in this area, our property values are very strong. I am much more concerned about empty restaurants such as Windows on the Bay and the Cannery, places like that affecting our property values. Secondly, I am a newcomer to Lido, been there for four and one half years, I live around the corner. I want to respect anyone's desire to not have noise especially late at night affecting their homes and lives. In the time that I have lived there, the noise we have is from ambulances, boats and traffic. I don't hear a lot of noise coming from the restaurants. From what I have seen in this staff report, they are not proposing to have live music outdoors or a lot of things happening outdoors or late at night. I would like to see calm minds prevail here, and see that we protect our businesses in the neighborhood and in Newport Beach as well as protect our neighborhoods. Bill Kreg, owner of Billy's at the Beach restaurant; 601 Lido Park Drive stated that he would be one of the people who would have a problem if the property • devaluated due to restaurant noise that was so loud that no one would want to live in that area. I can assure you traT we have no intention to have loud music, loud customers or anything else that would be disruptive to our diners. The main reason I want the patio open is because I think people should have a chance to dine on the bay, relax and enjoy the scenery. There are five restaurants in Lido Village, notable Mama Mia's, George's Camelot, Boyfront Caf6 and Les Bistro that all have outdoor dining and they don't seem to be disturbing anybody. There will be no noise carrying across the water. Alice Brewer, 222 Via Lido Nord noted.that since the Windows patio has been closed, there is peace and tranquillity in my home. There was quite a bit of noise that disturbed us. My concern is having the speakers on the patio because that sound does carry. Ms. Temple noted that the only outdoor area that has permission for live entertainment in an outdoor dining area is the Buzz. Lynn Valesko, 310 Via Lido Nord noted that there is a lot of noise that emanated from the Balboa Bay Club. The noise is terrible during the summer when the boats cruise our bay. I don't believe that we need any more loudspeakers or music blasting across the bay and disturbing the residents in their homes. Gordon Barienbrock noted that this project is not across the bay from Lido Isle. If you go out 90 degrees to our bulkhead, you have to turn 45 degrees to get to Lido isle. The Billy's building itself will block most of the noise that might be going INDEX City of Newport Beach Planning Commission Minutes November 9, 2000 in that direction. It is a lot different from Windows on the Bay, which is directly across on a narrow part of the bay. It is very different than Joe's Crab Shack that is directly across. Joe's has the building behind it; the noise has no direction to go except across the water. Our noise is going to go in two different directions. It is not like we have a resonating wall behind us that is amplifying the noise. Additionally, the bay is much wider than it is in front of Joe's Crab Shack. Public comment was closed. Chairperson Selich noted his recollection that several years ago there was a committee formed to establish procedures for noise on the outdoor dining areas. There was a policy adopted on that, is that correct? Ms. Wood answered that the City Council asked both the Economic Development Committee and the Environmental Quality Affairs Committee to look at perhaps developing some standard conditions of approval to address these issues. Each of those committees appointed a sub - committee and they worked jointly. We retained a noise engineer to review our Noise Ordinance and the specifics of the issues we were dealing with, had some recommendations from him that we really couldn't establish standard conditions of approval. Each case would be different because of its location, geographic and topographic conditions' It was recommended that what we needed to do was to have an Acoustical Study done for each one of these applications on the bayfront. The City Council did adopt those regulations and that is what we have asked the applicant to comply with in this case. We have the report from Mestre Greve and Associates. Chairperson Selich stated that the applicant has complied and the staff went through the study in accordance with the City Council policy. The City Council did not ban outdoor dining on the bayfront? Ms. Wood answered no; the City Council did not ban outdoor dining on the bayfront. Commissioner Kranzley noted his support of the application with the following changes: • No additional 92 square feet of outdoor dining; keep it within the 25% net public area limitation. • Adding a condition requiring a reduction of 5 decibels for certain noises that are particularly troublesome: whines, screeches, hums and noise consistent primarily with speech and music. • No outdoor speakers. However, they can come back in a year for this to be considered. • A signed Parking Agreement on the Avon lot and then however we need to manage the parking spaces with the lease that he has. INDEX 0 n Li 0 Ig City of Newport Beach Planning Commission Minutes November 9, 2000 Senior Planner Patrick Alford noted that the condition is from the Newport Dunes application. It refers to Chapter 10.26 of the Municipal Code that establishes a number of noise thresholds for different types of land uses for different times during the day. Essentially if the noise source falls within one of these categories, then you would take those thresholds, reduce them by 5 decibels and that would be the standard that would apply. Chairperson Selich asked if this was enforced at the time someone is out measuring the noise? Is it an enforcement item basically? He was answered yes. Commissioner McDaniel noted that this is not big waterfront, this is dining between those buildings. The noise that is carrying already is cars screeching, slamming doors etc. in that area. Ms. Garcia added that the outdoor dining is between the two buildings and set back from the Chart House. That is an inlet where boats are docked and that also buffers noise somewhat. Commissioner Agaianion noted that Condition 22 states should problems arise with regard to noise associated with the outdoor dining areas, the Planning Department reserves the right to require the removal of all or a portion of the outdoor dining. How is the Planning Department going to exercise that right? Ms. Garcia answered that it would be by complaints by the public to our Code Enforcement Division. The Planning Director would make any decisions. It could also be brought back to the Planning Commission if the Director felt it was necessary. There is a condition included in the staff report that requires additional studies if this does become a problem. Commissioner Gifford stated she wanted to be sure about the interaction of Condition 22 that states should problems arise with regard to noise associated with the outdoor dining areas, the Planning Department reserves the right to require the removal of all or a portion of the outdoor dining area seating and with respect to Condition 36 that is a standard condition that the Planning Commission can add to or modify the conditions of approval. The standard language states that upon determination that the operation which is the subject of this use permit or out door dining causes injury, or is detrimental to the health, safety, peace, morals, comfort, or general welfare of the community. With respect to noise, would there have to have been a determination by the Planning Director before the Planning Commission could call it up? Ms. Temple answered that wording would allow either the Planning Director or the Commission to make such a determination. • Commissioner Kiser stated he did not see valet parking requirements in the `111171 City of Newport Beach Planning Commission Minutes November 9, 2000 INDEX conditions. Did I miss that? Ms. Garcia answered that the valet parking was approved with a prior use permit and those conditions still stand as previously approved. Motion was made by Commissioner Kranzley to approve Use Perrnit No. 3674, Off- site Parking Agreement, Accessory Outdoor Dining Permit Nos. 67 and 68 subject to findings and conditions in Exhibit A with the following changes: Condition 2 shall be 425 square feet not 515 square feet; Condition 4 shall read no outside paging system shall be permitted; Condition 6 is to be eliminated; Condition 27 insert the additional noise levels; and eliminate Condition 33. Commissioner Gifford added that with respect to Condition 4 and the suggested change I am not sure that excludes outdoor speakers. if that is the intent. The wording of, and speaker can be inserted. Ayes: McDaniel, Kiser, Agajanian, Selich, Gifford, Kranzley Noes: None Absent: Tucker EXHIBIT "A" FINDINGS AND CONDITIOf ..S OF APPROVAL FOR Use Permif No. 3674 Outdoor Dining Permit No. 67 Outdoor Dining Permit No. 68 Oft -Site Parking Agreement Use Permit No. 3674 and Outdoor Dining Permit No. 67 2751' West Coast Highway Findings: 1. The Land Use Element of the General Plan and the Local Coastal Program Land Use Plan designates the site for 'Recreation and Marine Commercial' uses and the existing restaurant is a permitted use within this 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 1 (Existing Facilities). 3. The approval of Use Permit No. 3674, Accessory Outdoor Dining Permit No. 67, and Off -Site Parking Agreement, will not, under the circumstances of the case, be detrimental to the health, safety, peace, morals, comfort and • 10 City of Newport Beach Planning Commission Minutes November 9, 2000 general welfare of persons residing or working in the neighborhood or be detrimental or injurious to properly or improvements in the neighborhood or the general welfare of the City, and would be consistent with the legislative intent of Title 20 of the Newport Beach Municipal Code, for the following reasons: The proposed outdoor dining is consistent with the Land Use Element of the General Plan, and is compatible with the surrounding land uses. • The existing on -site and off -site parking, and circulation system, is adequate to accommodate the proposed exterior dining areas. • That the proposed outdoor dining is accessory to the Eating and Drinking Establishment, • The proposed accessory outdoor dining expansion will not be located so as to result in a reduction of existing parking spaces because there is adequate replacement parking available in the off -site lot located at 2620 Avon Street. There is an additional secondary off -site lot under the some ownership, located at 2620 Avon Street that is available for parking both day and night. • The addition of the outdoor dining to the subject property is subject to all the findings and conditions of approval of previous Use Permit No. 3328 and Use Permit No. 3328 Amended, and not an independent use. • The limited hours of the outdoor dining areas should prevent noise from adversely impacting the residential uses across the bay. • The restrictions on the use of solid roof structures as applied to this approval are consistent with the intent and purpose of the accessory outdoor dining to provide outdoor dining opportunities. • The control of noise can be achieved by the limitation on the location of the live entertainment and compliance with the provisions of the Municipal Code, Community Noise Ordinance. • The proposal will not add a new liquor license to an over - concentrated area, providing only for the operational change of an existing restaurant with an existing alcoholic beverage license. • The off -site parking lot located at 2700 West Coast Highway is currently being used to meet the parking requirement of the restaurant facility and the proposed off -site lot at 2620 Avon Street, are located so as to be useful in conjunction with the existing restaurant uses. • Parking on the off -site lot located at 2620 Avon Street will not create undue traffic hazards in the surrounding area. • The off -site parking lot on Avon Street is owned by the some owner as the restaurant sites and will be maintained as an off - site parking lot for the duration of the restaurant use. • A condition of approval is included, requiring the provision of 24 parking spaces in the lot located at 2620 Avon Street and on off - 11 INDEX City of Newport Beach Planning Commission Minutes November 9, 2000 INDEX site parking agreement will be recorded in the County Recorder's Office. A fee for the administrative costs of processing the off -site parking agreement with County Recorder's Office will be paid. 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. Public improvements may be required of a developer per Section 20.91.040 of the Municipal Code. Conditions: 1. Development shall be in substantial conformance with the approved site plan and floor plan, except as noted in the following conditions. 2. The accessory outdoor dining for the restaurant located at 2751 West Coast Highway shall be used in conjunction with the related adjacent food establishment and shall be limited to 543 425sq. ft. maximum of dining area and 220 sq. ft. of service areas. 3. The area outside of the food establishment shall be maintained in a clean and orderly manner. r.w 4. No outside paging or speaker system shall be permitted. Gnd the cuctem she'! be designed • eh e s to i ith tf. of the y "� w � r 5. No live entertainment is permitted in the outdoor dining area. A. The use- ef the eutEleer speGkeFs shall eease elf 19:90 P.M., SURGIGY thFG1J@h. 7. The outdoor dining area associated with the restaurant uses shall be limited to the area as delineated on the approved site plan only. 8. A minimum of fifty (50) parking spaces shall be maintained in the off -site lot located at 2700 West Coast Highway. A minimum of twenty -four (24) parking spaces shall be maintained in the off - site lot located at 2620 Avon Street. 10. In the event that either property located at 2751 West Coast Highway or 2801 West Coast Highway becomes under separate ownership, an easement or lot line adjustment to permit the outdoor dining for 2801 West Coast Highway to be located partially on 2751 West Coast Highway shall be approved, or that portion of the outdoor dining area that crosses the property line shall be 12 • • City of Newport Beach Planning Commission Minutes November 9, 2000 removed. 11. The owner or owners and the City shall execute a written instrument or instruments, approved as to form and content by the City Attorney, providing for the maintenance of the required off- street parking on such lots for the duration of the proposed use or uses on the building site or sites. Should a change in use or additional use be proposed, the off - street parking regulations applicable at the time shall 'apply. Such instruments shall be recorded in the office of the County Recorder. 12. A fee as shall be paid for the administrative costs of processing the off -site parking agreement. 13. The revised on -site parking plan and the parking plan for the off -site lots located at 2700 West Coast Highway and 2620 Avon Street, and the vehicular circulation and pedestrian circulation systems shall be subject to further review by the City Traffic Engineer to approve the new parking configuration and compliance with the previously approved use permit if any alterations are made to the off -site lot. 14. All trash shall be stored within the building or within dumpsters stored in the trash enclosure, or otherwise screened from the view of neighboring properties except when placed for°p ck -up by refuse collection agencies. That the trash dumpsters shall be fully enclosed and the top shall remain closed at all times, except when being loaded or while being collected by the refuse collection agency. 15. The applicant shall maintain the trash dumpsters or receptacles so as to control odors, which may include the provision of fully self- contained dumpsters, or may include periodic steam cleaning of the dumpsters, if deemed necessary by the Planning Department. 16. Storage outside of the building shall be prohibited, with the exception of the required trash container enclosure and existing storage structures. 17. For sunshade purposes, coverings shall be limited to the use of umbrellas or retractable awnings with a minimum vertical clearance of 7 feet measured from the floor of the dining area to the lowest portion of the shade structure. The use of solid, permanent roof coverings or patio covers shall be prohibited. 18. All signs shall conform to the provisions of Chapter 20.67 of the Municipal Code. 19. Alcoholic beverage service shall be prohibited in the outdoor dining areas, unless the approval of the Police Department and the Alcoholic Beverage Control Board are first obtained. Any substantial physical changes required • (as determined by the Planning Department) to accommodate alcoholic 13 INDEX City of Newport Beach Planning Commission Minutes November 9, 2000 INDEX beverage service shall be subject to the approval of an amendment to this Outdoor Dining Permit. 20. All applicable conditions of approval of Use Permit No. 3328 Amended shall remain in force (copy attached). 21. The hours of operation of the outdoor dining area are limited to between the hours of 11:00 a.m. to 10:00 p.m., Sunday through Thursday, and 11:00 a.m. to midnight, Friday and Saturday; and that any increase in the hours of operation shall be subject to the approval of an amendment to this application. 22. Should problems arise with regard to noise associated with the outdoor dining areas, the Planning Department reserves the right to require the removal of all or a portion of the outdoor dining area seating in the areas which contribute to the noise problems or complaints. 23. The project shall be designed to eliminate light and glare onto adjacent properties or uses, including minimizing the number of light sources. The plans shall be prepared and signed by a licensed Electrical Engineer acceptable to the City. Prior to the issuance of any building permit the applicant shall provide to the Plannina Department, in conjunction with the lighting system plan, lighting fixture g5r6duct types and technical specifications, including photometric information, to determine the extent of light spillage or glare which can be anticipated. This information shall be made a part of the building set of plans for issuance of the building permit. Prior to issuance of the certificate of occupancy or final of building permits, the applicant shall schedule an evening inspection by the Code Enforcement Division to confirm control of light and glare specified by this condition of approval. 24. The patio shall be closed for the evening upon verification of non- compliance with any conditions of this Use Permit or Outdoor Dining Permit and, if the patio is not closed, the matter shall be referred to the Planning Department for action on the Use Permit and /or Outdoor Dining Permit. 25. Should problems arise with regard to tables, chairs or stools encroaching into the public right -of -way, private properly pedestrian access or walkways, the Planning Department reserves the right to require the removal of all or a portion of the outdoor dining area seating. 26. Should this business be sold or otherwise come under different ownership, any future owners or assignees shall be notified of the conditions of this approval by either the current owner or the leasing company. 27. The live entertainment shall be confined to the interior of the restaurant and . 14 0 City of Newport Beach Planning Commission Minutes November 9, 2000 all doors and windows of the establishment shall remain closed during all performances, except when persons enter and leave by the main entrance of the facility or to the outdoor dining area. Loudspeakers eutside ef the The operator of the restaurant facility shall be responsible for the control of noise generated by the subject facility. The ° of °,, side leudspeekers, er seumel system shell h° ^G- lUG°^' ^ "'^ this ° ^'. The noise generated by the proposed use shall comply with the provisions of Chapter 10.26 of the Newport Beach Municipal Code that provides, in part, that the sound shall be limited to no more than depicted below for the specified time periods. In determining the project's compliance with the Community Noise Control Ordinance (Chapter 10.26 of the City of Newport Beach Municipal Code), each of the noise level standards specified in Section 10.26.025 and Section 10.26.030 shall be reduced by 5 dBA for a simple tone noise such as a whine, screech, or hum, noise consisting primarily of speech or music, or for recurring Impulsive noise such as hammering or riveting. Between the hours of Between the hours of 7:00 a.m. and 10:00 o.m. 10:00 p.m. and 7:00 a.m. Measured at the property line of Commercially zoned property: 65 dBA 60 dBA Measured at the property line of Residentially zoned property: 60 dBA 50 dBA 28. The applicant shall retain a qualified engineer specializing in noise /acoustics to monitor the sound generated by the live entertainment to insure compliance with these conditions, if required by the Planning Director. 29. The approval is for the establishment of outdoor dining for an existing full service restaurant facilities as defined by Title 20 of the Municipal Code, with the principal purpose for the sale or service of food and beverages with sale and service of alcoholic beverages incidental to the food use during the specified restaurant hours of operation. 30. The area of the outdoor dining shall be delineated with a minimum 6 foot high physical barriers designed, installed and maintained around the patio area to insure compliance with the Community Noise Control Ordinance (Chapter 10.26 of the Newport Beach Municipal Code). 31. Dancing shall be prohibited as a part of the regular operation, unless an amendment to this use permit, any previous use permits, and outdoor dining permits, and other required application is first approved in accordance with the provisions of the Municipal Code. 15 INDEX City of Newport Beach Planning Commission Minutes November 9, 2000 32. The project shall comply with State Disabled Access requirements. 34. All improvements shall be constructed as required by Newport Beach City Ordinance and the Public Works Department. 35. The Off -Site parking agreement shall be reviewed and approved by the Traffic Engineer prior to the issuance of the occupancy permit or implementation of the outdoor dining. 36. The Planning Commission may add to or modify conditions of approval to this Use Permit or Outdoor Dining Permits or recommend to the City Council the revocation of this Use Permit or Outdoor Dining Permits, upon a determination that the operation which is the subject of this Use Permit or Outdoor Dining Permits, causes injury, or is detrimental to the health, safety, peace, morals, comfort, or general welfare of the community. 37. This Use Permit and Outdoor Dining Permits shall expire unless exercised within 24 months from the date of approval as specified in Section 20.91.050 of the Newport Beach Municipal Code. p Outdoor Dining Permit No. 68 2801 West Coast Hiahwav, and Off -Site Parking Agreement Findings 1. The Land Use Element of the General Plan and the Local Coastal Program Land Use Plan designates the site for 'Recreation and Marine Commercial' uses and the existing restaurant is a permitted use within this 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 1 (Existing Facilities). 3. The approval of Accessory Outdoor Dining Permit No. 68 will not, under the circumstances of the case, be detrimental to the health, safety, peace, morals, comfort and general welfare of persons residing or working in the neighborhood or be detrimental or injurious to property or improvements in the neighborhood or the general welfare of the City, and would be consistent with the legislative intent of Title 20 of the Newport Beach Municipal Code, for the following reasons: • The proposed outdoor dining is consistent with the Land Use 16 INDEX 0 City of Newport Beach Planning Commission Minutes November 9, 2000 Street, are located so as to be useful in conjunction with the existing restaurant uses. • Parking on the off -site lot located at 2620 Avon Street will not create undue traffic hazards in the surrounding area. The off -site parking lot on Avon Street is owned by the same owner as the restaurant sites and will be maintained as an off- site parking lot for the duration of the restaurant use. • A condition of approval is included, requiring the provision of 24 parking spaces in the lot located at 2620 Avon Street and an off - site parking agreement will be recorded in the County Recorder's Office. • A fee for the administrative costs of processing the off -site parking agreement with County Recorder's Office will be paid. • 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. 17 INDEX Element of the General Plan, and is compatible with the surrounding land uses. • The existing on -site and off -site parking, and circulation system, is adequate to accommodate the proposed exterior dining areas. • That the proposed outdoor dining is accessory to the Eating and Drinking Establishment. • There is an additional secondary off -site lot under the some ownership located at 2620 Avon Street that is available for parking both day and night. • The addition of the outdoor dining to the subject property is subject to all the findings and conditions of approval of the respective Use Permit No. 2051 and Use Permit No. 2051 Amended, and not an independent use. The limited hours of the outdoor dining areas should prevent noise from adversely impacting the residential uses across the bay. • The proposed accessory outdoor dining expansion will not be located so as to result in a reduction of existing parking spaces because there is adequate replacement parking available in the off -site lot located at 2620 Avon Street. The restrictions on the use of solid roof structures as applied to this approval are consistent with the intent and purpose of the accessory outdoor dining to provide outdoor dining opportunities. The control of noise cart be achieved by the limitation on the hours of operation and compliance with the provisions of the Municipal Code, Community Noise Ordinance. • The proposal will not add a new liquor license to an over - concentrated area, providing only for the operational change of an existing restaurant with an existing alcoholic beverage license. • The off -site parking lot located at 2700 West Coast Highway is currently being used to meet the parking requirement of the restaurant facility and the proposed off -site lot at 2620 Avon Street, are located so as to be useful in conjunction with the existing restaurant uses. • Parking on the off -site lot located at 2620 Avon Street will not create undue traffic hazards in the surrounding area. The off -site parking lot on Avon Street is owned by the same owner as the restaurant sites and will be maintained as an off- site parking lot for the duration of the restaurant use. • A condition of approval is included, requiring the provision of 24 parking spaces in the lot located at 2620 Avon Street and an off - site parking agreement will be recorded in the County Recorder's Office. • A fee for the administrative costs of processing the off -site parking agreement with County Recorder's Office will be paid. • 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. 17 INDEX City of Newport Beach Planning Commission Minutes November 9, 2000 INDEX Public improvements may be required of a developer per Section 20.91.040 of the Municipal Code. Conditions: 1. Development shall be in substantial conformance with the approved site plan and floor plan, except as noted in the following conditions. 2. The accessory outdoor dining for the restaurant located at 2801 West Coast Highway shall be used in conjunction with the related adjacent food establishment and shall be limited to 768 sq. ff. maximum of dining area. 3. The area outside of the food establishment shall be maintained in a clean and orderly manner. 5. No live entertainment is permitted in the outdoor dining area. fe 7. The outdoor dining area associated with the restaurant uses shall be limited to the area as delineated on the approved site plan only. 8. A minimum of fifty (50) parking spaces shall be maintained in the off -site lot located at 2700 West Coast Highway. A minimum of twenty -four (24) parking spaces shall be maintained in the off - site lot located at 2620 Avon Street. 10. In the event that the either property located at 2751 West Coast Highway or 2801 West Coast Highway becomes under separate ownership, an easement or lot line adjustment to permit the outdoor dining for 2801 West Coast Highway to be located partially on 2751 West Coast Highway be approved, or that portion of the outdoor dining area that crosses the property line shall be removed. 11. The owner or owners and the City shall execute a written instrument or instruments, approved as to form and content by the City Attorney, providing for the maintenance of the required off - street parking on such lots for the duration of the proposed use or uses on the building site or sites. Should a change in use or additional use be proposed, the off - street parking FE] C 1 LJ City of Newport Beach Planning Commission Minutes November 9, 2000 regulations applicable at the time shall apply. Such instruments shall be recorded in the office of the County Recorder. 12. A fee shall be paid for the administrative costs of processing the off -site parking agreement. 13. The revised on -site parking plan and the parking plan for the off -site lots located at 2700 West Coast Highway and 2620 Avon Street, and the vehicular circulation and pedestrian circulation systems shall be subject to further review by the City Traffic Engineer to approve the new parking configuration and compliance with the previously approved use permit if any alterations are made to the off -site lot. 14. All trash shall be stored within the building or within dumpsters stored in the trash enclosure, or otherwise screened from the view of neighboring properties except when placed for pick -up by refuse collection agencies. That the trash dumpsters shall be fully enclosed and the top shall remain closed at all times, except when being loaded or while being collected by the refuse collection agency. 15. The applicant shall maintain the trash dumpsters or receptacles so as to control odors, which may include the provision of fully self- contained dumpsters or may include periodit{ steam cleaning of the dumpsters, if deemed necessary by the Planning Department. 16. Storage outside of the building shall be prohibited, with the exception of the required trash container enclosure and existing storage structures. 17. For sunshade purposes, coverings shall be limited to the use of umbrellas or retractable awnings with a minimum vertical clearance of 7 feet measured from the floor of the dining area to the lowest portion of the shade structure. The use of solid, permanent roof coverings or patio covers shall be prohibited. 18. Alcoholic beverage service shall be prohibited in the outdoor dining areas, unless the approval of the Police Department and the Alcoholic Beverage Control Board are first obtained. Any substantial physical changes required (as determined by the Planning Department) to accommodate alcoholic beverage service shall be subject to the approval of an amendment to this Outdoor Dining Permit. 19. All applicable conditions of approval of Use Permit No. 2051 and Use Permit No. 2051 Amended shall remain in force (copy attached). 20. The hours of operation of the outdoor dining area for the restaurant is limited to between the hours of 5:00 p.m. to 10:00 p.m., Monday through Thursday, including private parties and recognized holidays; and 5:00 p.m. to midnight, . Friday and Saturday; including private parties and recognized holidays; and 19 INDEX City of Newport Beach Planning Commission Minutes November 9, 2000 INDEX 10:00 a.m. to 10:00 p.m. on Sundays, and that any increase in the hours of operation shall be subject to the approval of an amendment to Use Permit No. 2051 and Use Permit No. 2051 Amended. 21. Should problems arise with regard to noise associated with the outdoor dining areas, the Planning Department reserves the right to require the removal of all or a portion of the outdoor dining area seating in the areas which contribute to the noise problems or complaints. 22. The patio shall be closed for the evening upon verification of non- compliance with any conditions of this Outdoor Dining Permit No. 68, and, if the patio is not closed, the matter shall be referred to the Planning Department for action on the Use Permit and /or Outdoor Dining Permits. 23. The project shall be designed to eliminate light and glare onto adjacent properties or uses, including minimizing the number of light sources. The plans shall be prepared and signed by a licensed Electrical Engineer acceptable to the City. Prior to the issuance of any building permit the applicant shall provide to the Planning Department, in conjunction with the lighting system plan, lighting fixture product types and technical specifications, including photometric information, to determine the extent of light spillage or glare which can be anticipated. This information shall be made a part of the building set of p'(ans for issuance of the building permit. Prior to issuance of the certificate of occupancy or final of building permits, the applicant shall schedule an evening inspection by the Code Enforcement Division to confirm control of light and glare specified by this condition of approval. 24. Should problems arise with regard to tables, chairs or stools encroaching into the public.,right -of -way; private property pedestrian access or walkways, the Planning Department reserves the right to require the removal of all or a portion of the outdoor dining area seating. 25. Should this business be sold or otherwise come under different ownership, any future owners or assignees shall be notified of the conditions of this approval by either the current owner or the leasing company. 38. The operator of the restaurant facility shall be responsible for the control of noise generated by the subject facility. The ° ^t n tgid° le SGIJRGI stc shall be iRelueleel y th•.. this Feg •.ement The noise generated by the proposed use shall comply with the provisions of Chapter 10.26 of the Newport.Beach Municipal Code that provides, in part, that the sound shall be limited to no more than depicted below for the specified time periods. In determining the project's compliance with the Community Noise Control Ordinance (Chapter 10.26 of the City of Newport Beach Municipal Code), each of the noise level standards specified in Section 10.26.025 and Section 10.26.030 shall be reduced by 5 dBA for a simple tone noise such as 20 City of Newport Beach Planning Commission Minutes November 9, 2000 a whine, screech, or hum, noise consisting primarily of speech or music, or for recurring impulsive noise such as hammering or riveting. Between the hours of Between the hours of 7:00 a.m. and 10:00 p.m. 10:00 p.m. and 7:00 a.m. Measured at the property line of commercially zoned property: 65 dBA 60 dBA Measured at the property line of residentially zoned property: 60 dBA 50 dBA 27. The applicant shall retain a qualified engineer specializing in noise /acoustics to monitor the sound generated by the live entertainment to insure compliance with these conditions, if required by the Planning Director. 28. The approval is for the establishment of outdoor dining for an existing full service restaurant facilities as defined by Title 20 of the Municipal Code, with the principal purpose for the sale or service of food and beverages with sale and service of alcoholic beverages incidental to the food use during the specified restaurant hours of operation. 29. The area of the outdoor dining shall be delineated with a minimum 6 foot high physical barriers designed, installed and maintained around the patio area to insure compliance with the Community Noise Control Ordinance (Chapter 10.26 of the Newport Beach Municipal Code). 30. Dancing shall be prohibited as a part of the regular operation, unless an amendment to this use permit, any previous use permits, and outdoor dining permits, and other required application is first approved in accordance with the provisions of the Municipal Code. 31. The project shall comply with State Disabled Access requirements. 32. All improvements shall be constructed as required by Newport Beach Ordinance and the Public Works Department. 33. The Off -Site parking agreement shall be reviewed and approved by the Traffic Engineer prior to issuance of the occupancy permit or implementation of the outdoor dining. 33. The project requires the approval of the Coastal Commission prior to the issuance of building permits or implementation of the outdoor dining use. • 34. The Planning Commission may add to or modify conditions of approval to this 21 INDEX City of Newport Beach Planning Commission Minutes November 9, 2000 Outdoor Dining Permit or recommend to the City Council the revocation of this Outdoor Dining Permit No. 68, upon a determination that the operation which is the subject of this Outdoor Dining Permit, causes injury, or is detrimental to the health, safety, peace, morals, comfort, or general welfare of the community. 35. This Outdoor Dining Permit shall expire unless exercised within 24 months from the date of approval as specified in Section 20.91.050 of the Newport Beach Municipal Code. SUBJECT: Revocation Hearing for Use Permit 3626 (Buss) 3450 Via Oporto Use Permit No. 3626 (continued from October 5, 2000) Consider whether to revoke Use Permit 3626 (Buzz) on grounds that the approval was based on erroneous or misleading information or misrepresentation and that there are violations of the terms or conditions of the approval or other laws or regulations and that entitlement granted by the use permit has been discontinued for more than 180 consecutive days. Chairperson Selich stated that tonight's"p`roceedings involved a consideration by the Planning Commission as to whether the Use Permit approved in 1998 for a full service restaurant and entertainment facility at 3450 Via Oporto should be revoked. I understand that there may be a request by the business for a continuance of this matter. Whether a continuance of these proceedings should be granted lies within the sole discretion of the Planning Commission. Given the length of time the alleged violations have been occurring and the serious nature of those alleged violations, a requested postponement of the hearing should be supported by some compelling justification. The applicant has already been given one continuance. Unless there is an objection by any member of the Commission I would propose we do the following this evening: • Open Public Hearing • Hear from staff • Hear from business operator • Hear from any other persons wishing to speak ( 3 minute testimony) • Ask any questions that we might have and see what progress can be made towards a decision. • Then consider any request (should it be requested) for a continuance and whether it is appropriate. • The business operator will be given the last opportunity for rebuttal prior to our deliberations. I want to be sure that everyone comes forth and presents all their evidence and testimony this evening, that they have and not be under the assumption that there is going to be a continuance in this matter. I propose the hearing go 22 INDEX r Item No. 3 Use Permit No. 3678 Approved City of Newport Beach Planning Commission Minutes November 9, 2000 forward as described. The City Attorney's office for the purpose of these proceedings is advising and assisting the Planning Department in presenting their case as to why the Use Permit should be revoked. As a result, it has been determined that the Planning Commission will have the benefit of independent legal counsel. Mr. Philip Kohn of the Law Firm of Rutan and Tucker is with us this evening. He has been retained to provide the Planning Commission with legal assistance that we might need during the course of the meeting. Does any member of the Commission have any questions or comments on the proceedings? Seeing none, I will open the Public Hearing and ask staff to present their case. Public comment was opened. Senior Planner Patrick Alford noted the following: • May 21, 1998 the Planning Commission approved Use Permit 3626 for a full service restaurant and entertainment facility. • November 1999 apparent violations of the approval were observed. • In the following months the Newport Beach Police Department experienced increased calls for service and arrests associated with the project. February 16, 2000 project management was notified of these issues in writing. • Staff met with the project management wherein they agreed to submit a revised floor plan that would be reviewed for substantial compliance with the project's Use Permit. The project management was admonished that compliance with the terms and conditions of approval of the Use Permit was still required. • In absence of any evidence that the project management was making a good faith effort to address these issues, staff presented a report to the Planning Commission outlining grounds of revocation for the Use Permit. • October 5, 2000 the Planning Commission determined that there are reasonable grounds for the revocation of Use Permit No. 3626 and set the hearing date of November 9, 2000. Continuing, Mr. Alford added that under the provisions of Section 20.96.040 of the Newport Beach Municipal Code, the Planning Commission shall revoke a use permit upon making one or more of the following findings: 1. The permit was issued on the basis of erroneous or misleading information or misrepresentation. 2. That the terms or conditions of approval of the permit have been violated or that other laws or regulations have been violated. 3. That there has been a discontinuance of the exercise of the entitlement granted by the permit for 180 consecutive days. To support these findings, staff has presented the following information in the staff report: 23 INDEX City of Newport Beach Planning Commission Minutes • November 9, 2000 INDEX Finding l: • The project was approved on the basis that it was to be permanently operated as a full service restaurant and entertainment facility. This is evidenced by the project's operation plan, correspondence by the applicant and statements by the applicant's representative at the Planning Commission hearing. In contrast, the project is being operated as a bar and nightclub and negatively impacting the project site and the surrounding area. I refer you to the observations of the Newport Beach Police Department in the attached declarations. • The increase in the net public area and the waiver of 41 additional parking spaces was based on erroneous information that the second floor game room was identified as a permanent feature of the project. This is a key point of discussion as reflected in the May 7th and May 21s! 1998 Planning Commission staff reports and meeting minutes. However, within six months of the certificate of occupancy all but a few of these games were removed and the floor area was converted to food and beverage service and dance floors. Refer to the declarations of the Newport Beach Police Department. • The Planning Commission reviewed the project as a means of correcting past problems associated with the previous bar /nightclub use of the project site and that it would be a use beneficial to the surrounding area. This is evidenced b the project's operation plan, d correspondence of the applicflT and statements of the applicant's representative at the Planning Commission hearing. However, the declarations of the NBPD and the Code Enforcement Division and the findings of the State Alcoholic Beverage Control are that the project is being operated in a manner that is contrary to the public health, safety and general welfare. Finding 2:., • The floor plans submitted with•the application depicted a significant portion of the floor area devoted to game units. However, as stated, within six months of the issuance of the certificate of occupancy, the bulk of the games were removed and the floor area was converted to food and beverage service and dance floors. This is in direct violation of Condition 1, which requires that the development be in substantial conformance with the approved floor plan. • The Newport Beach Police Department has observed that the project had ceased to provide valet parking services shortly after opening. This is in direct violation of Condition No. 3, which requires the project to provide a valet parking service. • The Code Enforcement Division has issued administrative citations for exceeding the City's exterior noise standards. This violates Condition No. 24, which requires compliance with the City's noise regulations. • From January 1, 2000 to September 30, 2000 the Newport Beach Police Department documented at least 66 calls for service and 98 officer - initiated activities at the project site. These activities have resulted in at 24 0 • City of Newport Beach Planning Commission Minutes November 9, 2000 least 50 arrests for public intoxication, battery, and other violations of law. State Alcoholic Beverage Control has formally advised the project owners that the continued criminal acts at the project site and surrounding area constitute a disorderly house and a nuisance. Refer to the approved floor plans and conditions of approval contained in the Planning Commission minutes and declarations of the NBPD and Code Enforcement and the letter from the Alcohol Beverage Control. Finding 3: The project has ceased to operate as a full service restaurant and entertainment facility since at least November 18, 1999, when the game areas were converted to food and beverage service, live entertainment, and dancing. Ms. Clauson added that the she has been contacted and notified by the operators' attorney that they have requested that the hearing tonight be handled in a manner consistent with the Administrative Procedures Act, which is a State Law that requires hearing officer discovery and cross examination under oath. It is my opinion and I have advised their attorney, that I believe that the Administrative Procedures Act does not apply to the City and that • those proceedings are not necessary for an administrative hearing such as the one the Planning Commission is conducTing tonight. There has been a request for a continuance based on the amount of materials provided and additional time has been requested to prepare written responses to those materials. In light of the request for the continuance, present tonight from the Police Department are Capt. Newman, Detectives Hartford and McKnight and a Records Representative. The other declarants are available on an on call basis in the event they are necessary. Their written materials are submitted. Commissioner Kranzley asked when the materials went out for the October 51h meeting? He was answered that they went out September 29, 2000. Commissioner Kiser asked Special Counsel Kohn if he had read City Attorney Clauson's memo to the Planning Commission dated November the 302 Could you tell us if you agree with what is contained in that memorandum? Mr. Kohn noted that is the memo attached as Exhibit 23 to the staff report. He has reviewed the memo and it contains an accurate description and analysis of both the City's Municipal Code as well as provisions of State Law that bear on the proceedings this evening. Commissioner Kiser then asked for his comments on the Administrative Procedures Act and if it applies to the hearing tonight. Mr. Kohn answered that the Administrative Procedures Act does not apply to the proceedings. The Act, which is embodied in the Government Code of the 25 INDEX City of Newport Beach Planning Commission Minutes November 9, 2000 INDEX State of California, specifies the agency attached to the proceedings to which it is expressly applicable. And in tact, no proceedings of local agencies such as City Councils or Planning Commissions are by the terms of the Act subject to its provisions. I believe what the applicant or business operator may be referring to is something beyond the Act and just some fundamental fairness or principles of due process that entitle him to the rights he described such as having witnesses testify under oath, the ability to cross examine, issue subpoenas for testimony to conduct discovery. However, all the case law that I have had the opportunity to review indicates that those full due process rights that you would expect in a judicial proceeding simply are not applicable to the revocation proceeding relating to a conditional use permit. That is not to say that the operator is not entitled to due process, because indeed he is. The type of due process however, is the opportunity to be present, to be confronted with the evidence that is being presented to the Planning Commission, to be provided with the opportunity to present testimony, documentary evidence, argument whatever other information he wishes the Commission to consider. If there are to be questions to be asked of the witnesses, there is no right of cross - examination. However, as part of the verbal presentation or perhaps in writing, he may request that the Commission put questions to the staff or other persons who may be testifying. It would be the prerogative of the Commission whether or not to ask those questions. Given my review of the record and the order and procedure read earlier on how this hearing is to be conducted, this hearnT gives fair opportunity to be heard and complies with due process as recognized in California for hearings of this type. I think it is important for the staff report to precede the presentation so that there is full disclosure of the basis upon which the recommendation to the Commission is made so as to afford the operator as best possible opportunity to respond to the information presented. Recognizing that there may be other persons who may speak, I agree with the Chair's indication that the business operator should be given the opportunity to speak as the very last presenter to ensure again that there is an ability to respond and to confront and rebut evidence in testimony that may be given throughout the hearing. Chairperson Selich then invited those who wish to speak in favor of the revocation. Seeing no one, I then invite the business operator, or his representative forward to give what evidence and testimony he wants to present. Please state your name and address for the record. Stephen Allen Jamieson, attorney with the law firm of Solomon, Saltsman and Jamieson 426 Culver Boulevard, Los Angeles 90293 represented the applicant. Chairperson Selich informed Mr. Jamieson that he would have half an hour to do his presentation. Mr. Jamieson stated that on November 6th, he received a number of documents from staff numbered 358 through 480. 1 heard Commissioner Kranzley ask when the information was provided to the operator so they could 26 City of Newport Beach Planning Commission Minutes November 9, 2000 be prepared to respond tonight. This information was provided on November 6th. The other documents were provided on October 315t. The hearing that took place on October 51h was to set this hearing. The documents that we are to use for presentation and rebuttal were provided to us on the 31st of October. I did not hear any of that in the presentation of the Commission in deciding what the procedures would be or whether or not a continuance should be granted. The declarations were signed on October 30th; the documents assembled took weeks to assemble. The City has had months to get ready for this meeting. Chairperson Selich stated that this is primarily a land use matter as to whether the operation is in compliance with the conditions of approval and the operational characteristics approved in the Use Permit. Mr. Kohn, would you say that a 30- minute time limit this evening is appropriate? Mr. Kohn answered that certainly the business operator had the opportunity and I do not know if he availed himself of it, submitting documents or arguments or other information that he would wish the Commission to consider in writing in advance of the hearing. I would suggest that the Commission follow the Chair's suggestion to allow 30 minutes and at that time determine on the basis of the information being presented whether further time would or • would not be warranted. Chairperson Selich asked Commissioners if they had any objection to this procedure? There was no objection. He then informed Mr. Jamieson that he had thirty minutes for his presentation. As I indicated to you, the primary issue is the land use and whether there is compliance or not in compliance with the Use Permit. I suggest that you concentrate on that. Mr. Jamieson.stated that it is important that this Commission realizes that it is dealing with a business operation that just two years ago invested almost 7 million dollars into this operation. For the Commission to take the position that this is simply a land use matter is not looking at the full issue that is provided for this business operator. There is a case that we cited previously to the City Attorney called Mohilif v Janovici, which is a 1979 case decided by the Court of Appeals. In that case, the business at issue was not going to be shut down as the land use was not going to be prevented, there were certain aspects of a business that were going to be affected. Although the decision in that case was that a full evidentiary type hearing was necessary to be provided, the Court also pointed out that although there is no precise manner of a hearing that must be afforded, the particular interest at issue must be considered in determining what kind of hearing is appropriate. The Commission has not allowed us to provide all the information necessary to show you what kind of interests are • being affected here. It is clear that the Commission is aware that this business has invested a substantial amount of money and is entitled to a hearing 27 INDEX City of Newport Beach Planning Commission Minutes November 9, 2000 INDEX process. This case says that to the extent that due process protections will be available will depend on a careful and clearly articulated balancing of the interest at stake in each context. In some instances the balancing may counsel formal hearing procedures and include the rights of confrontation and cross - examination. The first issue is the private interest that will be affected by the official action. If you vote to revoke this permit, you will shut this business down, a business that has ten years or so left on its lease, a business that invested 7 million dollars, a business that so for I have not heard any information that is adequate evidence against which to permit such a revocation. This risks an erroneous deprivation of such interest through the procedures used and the probable value if any of additional or substitute procedural safe guards. What you are providing here in a 30- minute process where the evidence presented against this operator is not even provided in the form of adequate evidence. I am making an objection on the basis of inadequate foundation, the basis of hearsay, on the basis of information where we have not been provided any of the due process rights to be able to confront and cross examine the people who have provided these declarations. These declarations are replete with hearsay; none of these officers have yet spoken. Yet, it is now our job to try and rebut what they have to say. The interest in allowing us to present our side of the story means that the City has to present its side of the story with adequate evidence first. That has not been done here. The governmental interest in providing this process in the manner in which you have provided. We have • asked for an evidentiary type hearing;-the rights to subpoena; asked that the police officers testify for cross - examination purposes. An APA type hearing is necessary or at least something that provides basic due process. The information we have been provided is not due process and does not allow us to be heard. I object to the process itself as it is lacking in due process. This is a very important property interest that is being violated here. There are references throughout the declarations to 130 arrests and videotapes; we have not been provided this information or a chance to cross - examine those officers. The only evidence before you is what staff has presented. There is insufficient foundation, speculation and we are not able to adequately provide that kind of response. One of the basis for revocation is that the use itself is not consistent with the permit that was granted. The use that was approved was for a restaurant and entertainment facility in May 1998. In February 1999, a cafe and dance permit was issued to this business and a permit to conduct live entertainment. The use says it is a restaurant, it has dining, entertainment and live entertainment and games. May 1999 the occupancy permit says it allows 292 persons on the first floor for bar, dining and waiting. On the second floor it provides room for 261 persons for bar, games and dance floor. The dance floor has not been changed; the flooring is the same as it was when it was approved. When the permit was issued May 1998 it included a number of items for arcade type machines. The machines were there for the first six months. It opened the way it was presented to the City; there was no deception or erroneous information. The operator of this premises lost about $400,000/$500,000 in removing the • 28 City of Newport Beach Planning Commission Minutes November 9, 2000 arcade because they weren't making money. This business, in the way it is being currently operated presently, just breaks even. The president of the management company that came into operation at this location in January/February 2000 is here tonight. Many of the items complained about throughout the police reports took place in 1999. There has been a specific intent to make extreme changes here. They presented to City through staff the options of first doing a BB King operation and then that fell through. Then what they presented to staff in the last two months to do a fish type restaurant, be open during the day, provide banquets, weddings, etc. A couple of weeks later they were notified that they needed to come before you to potentially have the CUP revoked. They had raised $250,000 to put their latest concept in to make this location a profit- making center. An application has not been made to the City because that money couldn't be spent if the CUP was going to be revoked. Violations occurring at this location: • Police contacts were not calls for service but rather officer initiated. • There are 130 police reports - not enough time to examine. • Number of incidences (20% - 30 %) where the business did what it was supposed to do - need time to present. • Violations took place after 11:00 p.m. • Dinners are not served after 11:00 p.m. It is incumbent for all to look at all issues needed to make a decision. I have not heard any constituents talking against this operation. We have 20-30 people here tonight that are available for questioning as to their involvement with the operations. I have petitions (presented to Commission) in support of this business. There is not an out - pouring of opposition by the neighborhood or surrounding business owners. He then provided a tear out of the Entertainment Book depicting a coupon for the Buzz with a picture describing food items and what Buzz does. It also talks about games. There has been an investment in the kitchen, dishes, food service and menus. He then presented copies of the menu to the Commission and emphasized that this place serves food. We are not here tonight saying that whatever problems with this operation is not our problem and we are not willing to do something about it. Rather, we are saying that a lot of it can be rebutted given time. The operator wants to change the concept of the establishment and be open for lunch. This is not something that is a danger to the area or to society in general such that it needs to be closed down immediately without providing due process rights and a full and impartial hearing. Many of the issues brought up in the staff report /exhibits need to be matched with the employees with dates /times to defend. I request further time. Chairperson Selich noted that we need to conclude the half -hour presentation 29 EW, O City of Newport Beach Planning Commission Minutes November 9, 2000 INDEX to ask direct questions. Commissioner Gifford asked Mr. Jamieson that originally you indicated that you would need several hours to put on your evidentiary portion of this. I assume part of that was the procedural objections you wanted to make, which I also assume you submitted in writing and have stated to some degree for the record and that some of that would be argument as well. Could you give us something analogous to an offer of proof of what it is you would have been putting on in these several hours? Mr. Jamieson answered: • Each one of the officers and city employees who have provided declarations would need to be questioned. • Have those officers provide oral testimony to the Commission that we can ask questions of to clear up any inconsistencies. • Information presented in reports and declarations, I would like to get witnesses and have opportunity to verify. Commissioner Gifford asked Mr. Jamieson what would be presented if you had several hours this evening. Do you have any prepared evidence to put on this evening if you had more time? Mr. Jamieson stated that if he had er1'ough time to go out and talk to the • witnesses he would have several hours of evidence to put on this evening but it still would not be complete. Commissioner Gifford asked, the things you presented this evening, the ad from a newspaper and a collection of menus, they were not accompanied by any kind of declaration or anything to give us an indication of where they came from or what dates or perhaps an affidavit attached to those. Is that the type of proof you would be intending to present, the proofs that you have already offered? Or, would they be more in the order of what it is you have described, as you would like to see? Are these intended to stand alone in terms of your rebuttal to the evidence of failure to serve food and so on? Mr. Jamieson answered it would be both. If the question is, is there more of a foundation for those documents such as a declaration supporting dates, there is nothing in writing now that is provided with that. However, we would like to provide that if the Commission wants it. We do have the operator here who can talk about that. Commissioner Gifford noted that she understands the point about the concern of the proceeding and the formality or the lack of formality. What I wanted to determine with respect to evidence that had been under your control to provide supporting statements, and the form in which we have received it tonight. I have obtained all the information I was looking for and I defer to the Chairman. 40 30 • City of Newport Beach Planning Commission Minutes November 9, 2000 Chairperson Selich asked the speaker to refer to Exhibits 15 and 16. These are the floor plans for Use Permit 3626, the first floor plan and the second floor plan. On each of those pages there are two diagrams; the diagram on the left reflects the approved floor plan per the Use Permit and the diagram on the right reflects the floor plan as observed by the NBPD. Could you respond to the changes that the NBPD observed? Have all of those items been changed as indicated on those diagrams, or, is the layout of the facility right now in accordance with the approved floor plan? Mr. Jamieson answered that the layout right now is in conformance with an approved floor plan to the extent that nothing about the floor plan has changed. The use does not require the arcade games, so the shape and the wood floor itself are the same. Chairperson Selich, referencing the NBPD diagrams represented in Exhibits 15 and 16 then asked: If a portable bar had been added to the first floor at any time - no answer. • Have the games been removed from the first floor as indicated on the diagram at this point in time - no answer. • As the attorney indicated he, as legal Tinsel would not be able to answer the questions, he offered that Mr. Teffeteller, the operator of the establishment would be able to give evidence in answering the questions. Mr. Randall Teffeteller, Hospitality Management Group at 2901 West Pacific Coast Highway. Chairperson Selich asked if he. had Exhibits 15 and 16. Mr. Teffeteller answered yes. Chairperson Selich then asked Mr. Teffeteller: On the First Floor diagram, handwritten page 125, Exhibit 15 - • Is there a portable serving bar there at the present time - answer: no, it is not there at this moment. • Have the games been removed - answer: there are some pool tables, but some games have been removed. • Have tables been removed from the area by the bar area and a dance floor added - answer: there are no tables there now, nor have there been, nor a dance floor, it is a circulation area. • Were games removed, dance floor added with a DJ in corner and black lights installed - answer: there are no games there now, there are only tables; no DJ; no dance floor; no black lights On the Second Floor diagram, handwritten page 127, Exhibit 16 - • All games removed (2 pool tables and couches added); area used for drinking and dancing allowed - answer: all games have been removed 31 INDEX City of Newport Beach Planning Commission Minutes . November 9, 2000 INDEX except two or three pool tables; drinking and dancing is allowed throughout the restaurant. There is no contained area for food, drinking or dancing. • Tables removed, area used for drinking and dancing allowed - answer: there are two stand -up bars there now, the tables are not in that area. • Games and tables removed, dance floor expanded - answer: there are tables at certain times, depending on larger parties; there is no dance floor. There is no fixated dance floor anywhere in the establishment. People are free to dance where they choose. • Portable bar added - answer: at this time we are not using any portable bars. • Games removed and one pool table added - answer: the pool table is not there now tables are as we are getting ready for the boat parade this year. • Is there a Disc Jockey - answer: that is a sound booth and yes, a DJ is there; that is where all the sound and televisions are controlled throughout the whole restaurant. Chairperson Selich asked if a valet parking service is being operated there? Mr. Teffeteller answered no and explained that there was a problem with the valet service and parking service. That service got disrupted because the two could not come together. • Commissioner Kranzley noted that the bottom line is that there are no more video games in the restaurant. Mr. Teffeteller answered no. Commissioner Kranzley noted that he had been to the Buzz on September 21st at 6:00 p.m. and October 5th at 9:45 p.m. When I walked into the Buzz at 6:00 in September, there was one person eating food; there were no other diners. I walked around and at that time I counted three pool tables, no video games. The second time at 9:45 in the evening Commissioner Tucker and I went over and at that point in time, there were no diners. We walked around the Buzz and sat down on the patio on the first floor and observed one of your employees going around all the tables taking up all the food service items from all the tables. At that point in time, there were no diners. Mr. Teffeteller answered that he could have the general manager come up and we could pull past reservation sheets that show every Friday and Saturday since I have been on board, we have run an average parties of 20 - 30. We do between 60-80 dinners some nights, however, it is unpredictable. Commissioner Kranzley then asked if they did validated parking. Mr. Teffeteller answered that we do validate parking for all our guests, however, I believe the parking establishment after a certain point in time charges. I do not know how 32 • City of Newport Beach Planning Commission Minutes November 9, 2000 they use our stamping process. The only time we may not is if a banquet client pays up front for all his people. Commissioner Kranzley then asked Mr. Jamieson, what do you think the role of conditions in a use permit is? Mr. Jamieson answered that clearly the role that the condition(s) have in any use permit is to provide some control by the City to maintain a particular operation in a particular manner. Commissioner Kronzley agreed that there was a lot of information (police declarations) with this staff report. The land use issues are a little smaller. I wonder if you feel the use that is currently in operation at the Buzz has any resemblance to the conditions in the use permit that was granted two years ago? Mr. Jamieson answered, absolutely. In looking at the document that passes as the use permit for this location, it has a very amorphous concept of what the use is itself. What we know is that it provides for a use of a restaurant, which this is. We know that it provides for an entertainment center, which this is. It does not provide for an arcade center. The floor plan did show arcade games and there were a lot of those arcade games to the tune of several hundred thousand dollars that were put in plc(M and utilized for six months. The use permit itself doesn't say it is for an arcade. If you look at the other permits issued by the City based on the use permit itself; it operates well within that. Commissioner Kranzley noted that one of the conditions is that the use is in substantial conformance with the floor plan, have you been to the establishment? He was answered yes. Continuing, Commissioner Kranzley stated it is hard for me to believe that an intelligent, bright person like you would think that the floor plan of The Buzz today is similar in any way, shape or form to the floor plan that we approved in 1998. Am I missing something? Mr. Jamieson noted that the only difference in looking at the floor plan then and the floor plan now is that there certainly are not as many video games or games other than pool tables that were indicated on the floor plan then. It is substantially the some in observing it and being as objective as I can. It is a restaurant and serves food and alcohol. It allows people to walk through the establishment and is permitted for live entertainment and dancing. The police issues are land use issues. Those police issues are part and parcel of this. Commissioner Kiser asked if any of the provided menus are in use today in the restaurant? Mr. Jamieson answered that he saw about three dozen on these and are the same ones that are used today. • 33 •1.1011 City of Newport Beach Planning Commission Minutes • November 9, 2000 INDEX Mr. Teffeteller answered that when the Hospitality Management Group took over, the menu used at that time has since been refined with a wine list. He then proceeded to explain the menu format. Commissioner Kiser noted that he counted in the areas that have been indicated in Exhibits 15 and 16, it appears that between 80 and 100 units were in the restaurant? Is that how many were in the restaurant when it opened? It is a very significant number of games, not just a few video games in the corner. It is a significant number of games as well as a significant amount of square footage that those games at one time apparently occupied and for which the restaurant was conditioned to have in place. Mr. Jamieson answered that Mr. Teffeteller took over the operation January of this year. By that time, whatever arcade machines were there had been removed. He was not present at that time. Mr. Teffeteller noted that most floor plans we do are for hypothetical. Once we open the restaurants, they do change with diversions, walkways, pathways, etc. Different agencies come in i.e., OSHA, that tell us to move things. Never have I resubmitted a floor plan when those changes are made. The games were a part of the concept, a fraction. When those games were not successful, they were removed. Now, there are no games in there. I don't think anybody planned on putting in 7 milliorr'tZllars into an arcade at any time. Mr. Jamieson noted that if you look at the Municipal Code there is a definition for an arcade. It is defined as something more than three arcade machines. This CUP does not specifically state it is a CUP for an arcade. These games existed apparently for six months; erroneous information presented to get the CUP in 1998, no. They spent a lot of money to put those machines in there. Did the concept evolve after that, yes. Chairperson Selich referring to page 6 of the staff report read item 113. 'The increase of net public area and the waiver of 41 additional parking spaces was based on the erroneous information that the second floor game area was identified as a permanent feature of the project.' I was on the Commission when this project was approved and I am going to attest to the following statement that staff made. ' The game areas were also the basis of the Planning Commission's approval of an increase of the net public area and the waiver of a portion of the project's off - street parking requirement. The project included increasing the net public area by 1,141 square feet more than that approved for the previous project, The Warehouse (Use Permit 1711). However, since 1,952 square feet was proposed to be utilized as game areas, the project was presented as 800 square foot decrease in the net public area, since the game areas would not be used for food and beverage service. The game areas were identified as a permanent feature of the project and, at the public hearing, the applicant's representative distributed pictures of the interactive games as evidence that such equipment could not be easily moved and the 34 • City of Newport Beach Planning Commission Minutes November 9, 2000 floor area converted to other uses (Exhibit 1): That is my recollection of how we approved this project, that was a permanent area not to be removed. Commissioner Kranzley added that he was the Chairman of the Planning Commission at that point in time, and I remember that specifically as well. Chairperson Selich asked what the response would be to the fact that we approved the project, that would be a permanent area and now that those games have been removed and it has now been converted to what we planners define as floor area, net public area? Mr. Jamieson answered that the reason Item 1 B has been identified for you is because one of the basis that allows you to revoke a CUP is that the CUP was issued based upon erroneous information. That information was not erroneous at the time it was provided. In good faith it was provided that way and operated that way for a few months. Mr. Teffeteller noted that we did not remove the games to increase the tables or seating; those areas are now for circulation. The games were removed because they were not making money and it was costly to the owners to do that. The games did not help the appeal of the establishment. • Chairperson Selich stated that may5e he misunderstood your previous testimony. You just got done saying we removed the games. I thought earlier you said that you were not aware whether the games were there or not. Mr. Teffeteller answered that he had asked why the games were taken out. I have profit and loss statements. Chairperson Selich, when you say we, you mean the organization that owns that and not happened since you were there? Mr. Teff eteller, yes, the ownership of the company. Commissioner Kranzley then asked: • If the Buzz has any resemblance to Dave and Buster's - answer: the Buzz was developed because of Dave and Busters and we feel its failure was because of Dave and Buster's. • The Dave and Buster concept was not working and you decided to use other ways to attract clients to the operation - answer: yes • You changed your mind - answer: I don't know what the mindset was. The current investors do want to make changes now and make it into something that will make a return on their investment. Continuing, Commissioner Kranzley noted his concern as then Chairman he • was part of a Commission that approved a Dave and Buster concept establishment and now you are currently operating a dance club. 35 INDEX City of Newport Beach Planning Commission Minutes November 9, 2000 INDEX • Mr. Teffeteller answered that one element of the Dave and Buster's no long exists. We are not a dance club; we are a restaurant. Commissioner Kranzley stated that in the Orange County Weekly you have an ad that talks about the Buzz Dance Club. That is confusing to me. In your opinion, this is significantly different than a Dave and Buster's? Mr. Teffeteller answered that in a particular phase we might be doing a late night segment per our permit, but that is a fraction of our food and beverage establishment. I think it was significantly different when the establishment was started. Commissioner Kiser stated that the Buzz representative was going to be limited to about 30 minutes of presentation. I want to point out for the record, the presentation now has been with questioning from the Commission about an hour and fifteen minutes. So, the Buzz representatives were not limited to thirty minutes and in fact we've allowed and been interested in the questioning for an hour and fifteen minutes in the interest of hearing what is to be said. Chairperson Selich then opened the hearing for those who wish to address the Commission in opposition to the revocation. • Colin Berger, 601 Bayside Drive stated he was not here to object or support to anything. He stated that he received a notification from the City. He used to have an interest in this business, no longer has an interest in the business. I want it on the record that PH Marketing has no interest in the Buzz whatsoever. Commissioner Kranzley asked the speaker when he did have an interest in the establishment? Mr. Berger answered that he sold out the assets, lease when they applied in 1998. We retained a 20% interest in Buzz, but non - operational. It was made very clear that we were not to interfere. Subsequently we didn't want to have even the 20% interest and we got rid of that. We gave it away to them and it was finalized May 2, 2000. Chairperson Selich asked if anybody in the audience wished to testify? There were no speakers. Chairperson Selich then asked staff if they had anything further to add. Ms. Temple added that there has been discussion about the original concept under which the use permit was approved and various proposals discussed with the City in regards to changing the overall concept of the facility. In both cases, the current operators were informed by myself that each of those would require the approval of a new use permit because of the nature of the parking • 36 City of Newport Beach Planning Commission Minutes November 9, 2000 waiver and the parking ratio used for the game area in the original approval was at a ratio of 1 parking space for every 400 square feet occupied by the gaming area. Any utilization for any other uses is considered net public area of a restaurant are typically parked in the range of 1 space for every 30 to 1 space for.every 50 square feet. Therefore, potentially requiring a much higher parking waiver and so nothing that I have seen could be simply brought in under the existing use permit, but would require a new use permit. Commissioner Gifford asked if this use permit were to be revoked is there anything to prevent the applicant from coming in with a new concept for a new use permit? Ms. Temple answered no. Chairperson Selich then gave an additional ten minutes for Mr. Jamieson to speak. Mr. Jamieson, attorney representing the Buzz noted the following • No one has spoken before you in opposition to this business. • I have several people who can testify to several aspects to the issues in the police reports and land use report. • 1 have information about reserv5fion inquiries made for the month of December. (Chairman Selich stated that if this was a written document it could be submitted into the record) • 1 would have liked to have the officers who are present come in and present oral testimony. • The use is operating within the parameters of its conditional use permit, cafe and dance permit, live entertainment permit and certificate of occupancy. (all issued by the City) It is in conformance with the use permit that was issued in 1998. The use permit is ambiguous. • The police issues that are land use issues material is important and needs to be inquired about. • This business operator who has put in 7 million dollars into this operation and is trying to make a go of it at this location has indicated to you that he would like to be able to adjust this concept. • The idea that if this is revoked that the operator can come back and make an application for a different use permit or some type of use, as a practical matter is going to be extremely difficult and impossible to do. • You will shut this business down for weeks /months whatever it would take. This business will not be able to withstand that kind of a shut down. • The revocation of this use permit should be looked at its facts and issues before you. All of the facts and issues have not been able to be provided. • I requested that either an evidentiary hearing be provided before you or a hearing officer designated by you so that all these issues could be 37 INDEX City of Newport Beach Planning Commission Minutes November 9, 2000 INDEX explored and recommendations made to you. We request that rather than render a vote now on whether or not it is appropriate to revoke this use permit, that the matter be continued and directed to a hearing officer. • We would like to work with staff to see if the concepts the business has are workable. • It doesn't hurt to step back and reflect on what is being done here tonight both procedurally and substantively and allow for the benefit of the doubt. • Think of the factors from that case. Here the property interest is so important. In conclusion, Mr. Jamieson requested a continuance to take care of this matter in an appropriate way. Assistant City Attorney Robin Clauson noted that Mr. Jamieson has made his position clear that he wants a full evidentiary hearing with a right for cross - examination. It has been my position that is unnecessary for these proceedings as the informality of the proceeding work quite well. I do agree that and have told you that the police officers are available for questions. Mr. Jamieson would be afforded an opportunity if the proceedings were continued to present written questions to be asked of the officers, to have them come before you and respond to those typ6s' of questions or any other types you might have. Not in the manner that he might wish with full cross examination on every issue of every arrest report that occurred, but any questions that he might have about the information in the declarations, clarification questions, that type of information may be helpful to the proceedings to make sure that there has been an opportunity to pose questions through the Planning Commission. The officers were available tonight; we had them on an on -call basis. Two of the officers are here tonight as well. Commissioner Gifford asked if this information was made available to Mr. Jamieson earlier? Ms. Clauson answered that she did tell him that was available. I do agree that with the timing of receiving those reports and the time for the staff report to get out to the Planning Commission for him to prepare written materials or questions that he has there was quite a bit that he needed to go through. Public comment was closed. Chairperson Selich stated he was disinclined to grant a continuance noting this is primarily a land use issue in regard to the use permit and not a police issue. I question the value of questions to the police personnel regarding the information submitted. The thing that sways me and again I was on the Commission when we approved this project, and we allowed an increase of the project's net public area to 9,808 square feet. We then reduced it and 38 • City of Newport Beach Planning Commission Minutes November 9, 2000 allowed 1, 952 square feet of that to become a game area. We approved that on the basis it would be permanently reserved for games and not used for any other purposes. The removal of the games, whether tables were put in there or its circulation area, whatever, turns it back into net public area and it is a clear violation of the use permit. The property's representative has admitted that the games are not there, and has stated they will not be replaced because it is not a valid business concept any more. So that in itself to me is enough to revoke this use permit because it was in my opinion and,part of my decision to approve this use permit the very heart of why I voted for the project and went along with the waiver of parking and other concessions we made in order to allow this concept to move ahead. In addition to that, the valet parking is no longer provided as the applicant has stated. Those two facts alone are grounds for revocation and I don't see where a continuation is going to provide any additional information toward the validity or non - validity of that conclusion. Commissioner Krandey stated he agrees with the Chairman. Additionally, I have a letter dated February 16th that was sent to Mr. Teffeteller at RST Management Group. We seem to get the impression that the applicant wants to change the use here, but it strikes me that they need to get permission to change the use before they change the use. In this case I disagree with the • operator and representative, it is dramatically different than the concept I voted on and for in 1998 inclusive of all -T!'e issues that Chairman Selich brought up. I believe this is a land use issue, they have violated and continue to violate the conditions of the use permit and I am not in favor of a continuance. Commissioner Gifford stated she has heard persuasive evidence to make findings under Items 1 and 2 of the Findings in Support of the Revocation of Use Permit 3626 in Exhibit 23. Either of which would be sufficient grounds for revocation, that is: Item 1 'The permit was issued on the basis of erroneous or misleading information or misrepresentation.' I too was on the Planning Commission when the use permit was granted and one of the reasons that the floor plan was extremely important was because of everyone's concern that since the use permit runs with the land, the character of the operation that was presented to us, might conceivably change. We wanted to ensure that if we were approving it on the basis of this being a permanent feature as was described and we were waiving the parking spaces that was integral to our basis for approving it. If the operator at that time believed they were going to try this concept and if it didn't work they would have to adjust and change as might be needed for businesses conditions, that wasn't what was represented to us. It was represented to us that this particular operation would be consistent with the presentation we were given. Our assurance was that it was a permanent feature and in return for that, the applicant was given a very great consideration, which was the waiver of the 41 parking spaces and that the floor plan additionally as a condition insured that. 39 INDEX City of Newport Beach Planning Commission Minutes November 9, 2000 INDEX Item 2 'That the terms or conditions of approval of the permit have been violated or that other laws or regulations have been violated.' The issues of the floor plan and valet parking go directly to that. I appreciate that the applicant has made arguments with respect to the procedure itself, and I will ask the attorney who has been provided for the Commission for his reading of the Mohilif Case. I believe that the standards set by the applicant's representation in the presentation of evidence to us by submitting an ad that was simply a cut out piece of paper and some menus with no supporting material to indicate anything about them isn't consistent with his request for a different standard of evidence coming from the City. It is my opinion that all of the evidence we have heard tonight including that which I have been specific about in my comments provides a basis for revocation under 1 and 2. The testimony from police officers or questions submitted to them isn't really relative to the factors that are sufficient for me to make findings under either 1 or 2. 1 would like to hear from Counsel if there is adequate basis in the evidence provided in the admissions by Mr. Teffeteller. I don't think we need to rely on police testimony as to the floor plans because his admissions were that things are not consistent with the floor plans. Attorney Kohn stated that he agrees that the Mohilif case indicates that due process is somewhat a situational concept. It is a sliding scale, or balancing if you will, depending on all the surroundfr g circumstances and the amount of due process then should be reflective or proportionate to the proceedings at stake. I am not aware of any authority nor has the operator's attorney furnished any to my knowledge, indicating that a revocation of this use permit requires any more due process than has been provided by this body this evening. I am comfortable with the procedure that was set forward has been followed this evening. The applicant has been given a full and fair opportunity to respond to all the matters that were set forth in the staff report. As to those which a detailed presentation was not made an offer approved by the end of the term limit was used was made so the Commission had the opportunity to extend time if they thought those matters were relative to the inquiry. I agree with the observation that the evidence presented is responsive to the factors set forth in the Municipal Code that would justify revocation that being items 1 and 2. If that is the direction the Commission is inclined to go, I would suggest looking at the findings set forth in Exhibit 23 as to which of those that the Commission concurs with or does not concur with so that the record is clear as to the findings made and evidence upon which the Commission is relying to support those findings. Commissioner Agajanion stated he is not in support of a continuance. Commissioner Kiser stated he is not in support of a continuance. He agreed that there was a considerable amount of material that had to be digested. Most of tonight's testimony had to do with volumes of police reports and whether arrests were made or just detentions made. I think that there is ample 40 City of Newport Beach Planning Commission Minutes November 9, 2000 evidence to conclude that the use permit, which unlike what has been presented by the Buzz representative, I don't believe the use permit is unclear. I believe it is very clear that 1,952 square feet was to be occupied by video or arcade type games. There was considerable amount of discussion in the hearings when the use permit was given. The representatives of the restaurant have admitted that in fact there are no video games. Not wanting to rely on police reports and diagrams, I too visited the restaurant yesterday in the early afternoon. I walked into a wide open door; no one seemed to be nearby so I walked around the entire restaurant. I observed no arcade video games whatsoever, the only thing I saw on the ground floor was one photo booth, two pool tables and possibly a foosball table. There definitely no video games and the areas that were delineated on the floor plans when the use permit was granted, did not contain any video games as well. I agree in total with Commissioner Gifford's comments. The use permit is clear; I don't think the police reports need to be analyzed and that if we ignore completely the arrests being made at the premises or nearby, still this is a clear violation of the use permit. I'm understanding that this is a break even type of operation right now and that it is only open Thursday through Saturday nights and the owners are not making any money and are looking at presenting new concepts to the City. Well, it seems to me that goes along very handily with revocation of the current use permit so that new concepts can be found, hopefully one that will • not only be approved by the City but applied for and carried through in a manner that is in conformance with WAat the procedures for gaining and complying with a use permit. I am not inclined to grant a continuance. Commissioner McDaniel stated that we have adequately discussed the situation this evening. I don't think any further information would change my mind. It has been well stated and I agree that no further continuance is necessary. Commissioner Kranzley noted for the public that the way it is supposed to be done is if you have a business and you are trying to attract more clients, for instance Billy's and the Chart House, you come in and present your ideas to do that. There are a lot of conditions that the operator of the business is aware of that needs to be met. That is what should happen in this case. The operator of this business was informed that the business was not operating under the terms and conditions of the use permit. They should have come in before the way the business was run and should have said they were going to change the way we are running our business, so help us out here, lets see what we can do together. They did not do that and that is why we are here tonight. They changed the way they did their business and in doing so, changed the very nature of the.business that the Planning Commission approved back in 1998. Motion was made by Commissioner Gifford that the Planning Commission revoke the Use Permit No. 3626 based on the findings outlined in the staff report modified as follows: Finding No. 1 - the first and second bullet points with the addition of the text that 41 INDEX City of Newport Beach Planning Commission Minutes November 9, 2000 INDEX • the representative stated that the first and second floors no longer has a game area. Finding No. 2 - the first bullet, the second bullet modified to state that, a representative of the applicant has stated that the project has ceased to provide valet parking services.... Commissioner Agajanian suggested finding No. 3 be eliminated. Commissioner Kiser asked for clarification of the motion. Commissioner Gifford stated: Finding No. 1 - bullet 1, bullet 2 with the addition that the representative of the applicant stated that the first and second floors were no longer used as game areas. Finding No. 2 - bullet 1, bullet 2 modified to say a representative of the applicant stated the project has ceased to provide valet parking services and deleting the words shortly after opening and going on, which is in direct violafion....bullet 3 eliminate the final sentence bullet 4 (after discussion it was decided to leave in as there has been nothing to refute the statement) and bullet 5. Finding No. 3 - delete. Commissioner Kiser suggested the first ba9fe`t point in finding 2 proposed to delete . portions as there has been some testimony presented tonight by the restaurant operator that possibly the galvanized tubs and such may not be there and I don't think we need that in our motion. Ms. Clauson stated that in light of the comments by the Commission about the actual police activities, reports and arrests, I was wondering if the intent was for a deletion in the bullet point 4. Finding 2. It was requested to have an opportunity to rebut and deal with that information.. The Commission had indicated that they did not feel it was necessary to their decision. That is why I am questioning. Commissioner Gifford noted that it was her belief that the applicant was refuting was how those calls were initiated. If the intention was to rebut the fact that the police activities had resulted in 50 arrests, then we should delete that as well. Commissioner Kiser added that if there was any question about that number being supportable it should be taken out. Ayes: McDaniel, Kiser, Agajanian, Selich, Gifford, Kranzley Noes: None Absent: Tucker 42 M City of Newport Beach Planning Commission Minutes November 9, 2000 Findings in Support of the Revocation of USE PERMIT 3626 Finding No. 1: The permit was issued on the basis of erroneous or misleading information or misrepresentation. • The Planning Commission approved Use Permit 3626 on the basis of erroneous or misleading information or the 'misrepresentation that the project was . to permanently operate as a full service restaurant /recreation facility. The full service restaurant /recreation facility was seen as a means of establishing a use that would correct the problems with the previous bar /nightclub use of the project site and be beneficial to the surrounding area. However, the project is being operated as a bar /nightclub that is negatively impacting the project site and the surrounding area. • The increase of net public area and the waiver of 41 additional parking spaces was based on the erroneous information that the second floor game area was identified as a permanent feature of the project. Since electronic game centers have a significantly lower off - street parking requirement than eating and drinking establishments, this feature was used as justification for the increase in net public area and the parking waiver. However, within six months of the issuance of the certificate of occupancy, all but a few of these games were removed and the floor area was converted to food and beverage service and dance floors. This increased the net public area of the project, leading to higher parking demand. The representative of the applicant stated that the first and second floors are no longer used as game area. Finding No. 2: That the terms or conditions of approval of the permit have been violated or that other laws or regulations have been violated. • The floor plans submitted with the application depicted a significant portion of the floor area devoted to game units. However, within six months of the issuance of the certificate of occupancy, the h. v�,IL f these games were removed 43 INDEX City of Newport Beach Planning Commission Minutes November 9, 2000 INDEX • ^^G' l@8VeF^9° 68POiGA M1nd ^l^ee° fleers, which is in direct violation of Use Permit 3626 Condition No. 1, which requires that the development be in substantial conformance with the approved floor plan. • Tf a 1e,., + Qee h oeliee nepe4ment hes 919se. ,ed A representative of the applicant has stated that the project has ceased to provide valet parking services , which is in direct violation of Use Permit 3626 Condition No. 3, which requires the project to provide a valet parking service. = The Code Enforcement Division issued administrative citations on February 5, 2000 and February 26, 2000 for exceeding the City's exterior noise standard and Use Permit 3626 Condition No. 24, which requires compliance with the City's noise standards. Ale.. per+ Qeaeh oesr,e Offieers ratFelliRg +he .. nd the Buzz have heGFd a e/m emeRetiRg frem the Q from fa- : deneer aGmss • From January 1, 2000 to September 30, 2000, the Newport Beach Police Department has documented at least 66 calls for service and 98 officer - initiated activities at the project site. Then. peliGe GGti.,i +,e.. have Fesulted iR at leas .,iele +i r.ee of the Ir.,., The NBPD concluded that the project was having an adverse impact on the health, safety, and welfare of the neighborhood and the general public and is a drain on police resources. • The State Department of Alcoholic Beverage Control has formally advised the project owners that the continued criminal acts at the project site and surrounding area constitute a disorderly house and a nuisance. The et °.d +e m'Hed fer eriG1 r e+ '+h °_. ,:.r�, Glte vvvrv., ry vpvr..,v ..� p °r „u,.�.. ,v, .. ,„,,,..,.... 8Gt Ur„i.v., a a ehr to er.+er +he free+.l,-...r is ghtS GRrf GGVeF Fge FeGlUiFed Finding Ale Z. Theft the.e heis been diseenf the AXAFeise a nuence of of - the eefitlemeni a efe.f by the PeFR;61 W 190 a .,H.,e • The ,-i 8d +e ..{e a full i .J sepoise -re-4-- ..+949 r. r.+ fGl a rd le.rr+ NGyemher 18, 1999 ...her. the Gil'+., g ere... fer feed beversge We ..e,° e enverted end service, ,. .+er +•r r+ .,d GIG f t Y 44 • • City of Newport Beach Planning Commission Minutes November 9, 2000 SUBJECT: Nancy Heinz Russell Fountain 144 South Bay Front • Modification No. 5145 The retention of a decorative bronze fountain located within the 5 -foot front yard setback adjacent to the public walkway (South Bay Front) and Emerald Avenue. The fountain measures approximately 10 feet 6 inches tall at its highest point, which exceeds the maximum allowable height of structures (3 feet) within the required front yard setback. Senior Planner James Campbell made a visual presentation and noted the following: • Fountain installed without consideration of height limitation in front yards. • City notified homeowners of non - compliance. • Modifications Committee referred this item to Planning Commission due to public controversy. • Fountain is by a tree that serves as a backdrop. • Issues are location and height of structure in the front yard. At Commission inquiry Mr. Campbell stated: • Fountain is 21 inches into the setback area - could be moved back but • the consequences of that would be the removal of several limbs of the tree; the owner is not willing to ddifiat. • If it was moved 21 inches it would be further away from the bay; it would not change the amount of view that is blocked as depicted by the photographs contained in the staff report. • The actual work of the base of the fountain did not require any permits due to the size of the structure. The plumbing and electrical do require permits but have not been pulled as yet. Staff has included a condition that those permits be obtained if the fountain is permitted. • The depth of the water is approximately 6 inches. The brick at the abutting walkway is 39 inches high; the basin is approximately 1 1/2 feet deep. • If the fountain was removed from the setback areas, the applicant would not have to get any permits from Planning. • The only encroachment is in the front yard setback. Commissioner Kranzley asked if a subsequent homeowner needed or wished to replace this fountain, could they put in a bigger one? Assistant City Attorney Clauson answered that if that is an issue or concern with the Planning Commission, I suggest that the Modification be clarified that it is specific to this particualr structure at least in terms of height, bulk and shape. Ms. Temple stated that if the City was to approve a modification for a home for instance, which encroached into a front or side yard, if it were totally removed . and replaced it would be my position that any encroachment would require 45 INDEX Item No. 4 M 5145 Approved City of Newport Beach Planning Commission Minutes • November 9, 2000 INDEX approval of a new modification. I would think that would be applicable in this case as well if they did an entirely new structure. Chairperson Selich asked that one or two representatives come to speak who are in favor of this application given the lateness of the hour and the numbers of people in the audience. Public comment was opened. David Paulson, 306A Marine Avenue spoke as the applicant's representative. He noted the following: • Applicant is willing to provide any necessary information. • Bronze fountain was purchased as a tribute to her grandchildren and all children of Balboa Island. • No intent to argue against or discount in any way the issues raised in opposition to the fountain. • A Moficiation permit would allow this fountain to remain. • No premediated intent was made by the applicant to bypass the process to intentionally disregard the Ctiy code. • There has been a procedural oversite by the applicant. • Petitions in support of the sculpture. Base was purpose built for the statue itself at the time the statue was put • in. • Base is built with rebar, 3 inches of cement and pool plaster. • Water in bottom of the fountiain is 2 -3 inches deep with black rocks. • Bronze sculpture weighs one ton. At Commision inquiry, Mr. Paulson answered: • Statue is surrounded by a tree. If the statue was moved, the tree would have to be trimmed to excess (40 -607o). • The statue could be moved. • The statue is beautiful and signifies the Balboa Island Community standards. • The applicant did not understand that the fountain is considered a structure and therefore would need permits. • No knowledege why no electrical permit was obtained beforehand. That should have happened. • The electrical is not plugged in now. Commissioner Kranzley stated that the Planning Commission is looking at this application as a structure. Our decisions are based on planning and land use, not art. Commissioner Kiser noted that a letter signed by the Klingermans states that City personnel were at the site during construction of the fountain. The City inspector told the trandesman to stop work and to pull the proper permits, the fountain was installed anyway. There are some other perspectives on the supposed intent of • 46 • City of Newport Beach Planning Commission Minutes November 9, 2000 the construction of at least a portion of this structure. Mr. Paulson answered that he had a portion of the building inspector's report. The inspector came out on the day the electrical was being put in. The tradesmen were told to stop work and obtain permits for all work. The electrician contacted Steve Hook, Chief Building Inspector and told him what they were doing. It is my understanding that it is Mr. Hook who told them to continue placing the electrical in then they're to get the permit. Following that time period, the applicant was out of town and two citations were issued at her home. At that time, the request for the modificaiton permit was put in. At Commission inquiry, Mr. Campbell noted that the basin work itself does not require any permits, it is the electrical connections for the light and pump. If does not have any permits now and it would be up to the Building Department to see that it was up to code. There is a condition of approval requiring the applicant to obtain all applicable permits. Les Klingerman, 108 Emerald, spoke as a representative of the homeowners on Emerald. We have submitted photographs and signed petitions in oppostiion to this structure as it blocks our views. None of the people who have signed the • petition are against the artistic or aesthetic value of the structure. We object to the placement of the fountain. Many of the people who are in favor of this structure are not the immediate neighbors who are impacted by it. We do not like to see the building codes and permits usurped by putting a structure in regardless of the intent and setting precedent. Our codes provide for a nice uniform community that we all enjoy. Al Simonean, 427 Promontory Drive noted his support for the structure and leaving it where it is. If you try to move it, you would probably destroy the effect of it. Bob Caulkins, 124 Crystal noted that the statue is integrated into the tree. To move the fountain would destroy that. The code says that you could have a fence or hedge or wall there that was five feet high, as long as the top 3 feet was 40% open. The tree does not block any more than what could be blocked legally in the code. Ryan Culpman, grandson of Mrs. Russell noted his support of this application. He gave a tribute to his grandmother. Public comment was closed. Commisisoner McDaniel stated that he likes the structure. He noted that he walked the area by the structure and from Emerald could not see it because there were cars parked that blocked the view. The picture presented in the staff report are from the sidewalk, not from the view that is obstructed. If we move it back in the setback twenty -one inches, the obstruction is not going to change. don't see that there is a problem with that. I do have to say that if you live on the 47 INDEX City of Newport Beach Planning Commission Minutes November 9, 2000 INDEX • Island and you paint your fence too thick, someone is going to complain. I don't understand why the applicant did not get permits ahead of time. You got to know that! You should have done that! I am in favor of this project. Motion was made by Commissioner McDaniel to approve Modification No. 5145 with the findings and conditions listed in Exhibit No. 1. Commissioner Kiser noted his concern that another structure being put in that some location that is considerably greater in bulk could be very different to look at than what is there. I suggest that we add another condition that the fountain could not be replaced with any structure that is materially greater in bulk or varies in shape that would obstruct views anymore than the present fountain. Ms. Temple noted that condition one indicates that it must be in substantial conformance with the approved site plan, drawings and photographs dated November 9, 2000. Ms. Clauson added that if this structure was replaced with a different structure, an additional modification would have to be received from the City. She noted that if the fountain is removed, the modification ceases. Commissioner Kiser stated that he supports the motion without his additional • condition. Commissioner Kranzley noted his support of the motion. Commissioner Gifford stated she would amend condition 2 that the modification shall expire upon removal of the sculpture. Ayes: McDaniel, Kiser, Agajanian, Selich, Gifford, Kranzley, Noes: None Absent: Tucker Exhibit No. 1 Findings and Conditions of Approval Modification No. 5145 FINDINGS 1. The 1' -8" encroachment of the proposed 10' -6" high bronze fountain is will not under the circumstances of the particular case, be detrimental to the health, safety, peace, comfort and general welfare of persons residing or working in the neighborhood of such proposed use or be detrimental or injurious to property and improvements in the neighborhood or the general welfare of the City, and further that the proposed modification is consistent with the legislative intent of this code for the following reasons: 48 • City of Newport Beach Planning Commission Minutes November 9, 2000 a. The general purpose of limiting the height of structures in the front yard is to preserve open space or views, security, creating a pedestrian scale relationship at the sidewalk and the preservation vehicle sight distances. The structure does not significantly impact open space due to the setback from the street and that the fountain is not monolithic in nature. b. The height and mass of the fountain is pedestrian in scale and does not negatively impact the abutting pedestrian sidewalks. There is no vehicular access afforded to South Bay Front, and therefore the height of fountain will have no effect upon vehicle sight distances. Pedestrian sight distance is not impacted as visibility across the base of the fountain exists providing pedestrians sufficient view of opposing pedestrians to avoid bumping into each other. c. The location of the fountain does partially block the view from properties on the north side of Emerald Avenue and the public sidewalk, as someone looks southwest to the bay. This existing view is partially restricted at this time due to a tree on the project site. The view blocked is through and under the existing tree and the increased blockage of view is minimal. CONDITIONS APPROVAL t1 The development shall be in substantia.,conformance with the approved site plan, drawings and photographs da ea November 9, 2000. 2 This Modification shall expire unless exercised within 24 months from the date of approval as specified in Section 20.93.055A of the Newport Beach Municipal Code, or, upon the removal of the fountain /sculpture. 3 The property owner shall obtain all applicable permits for the installation of the fountain and lighting within 45 days from the effective date of this permit. 4 The property owner shall maintain the fountain in a clean and sanitary condition and shall not permit the water within the fountain to become stagnant or otherwise become the breeding ground for human pathogens. • 49 11.11111 City of Newport Beach Planning Commission Minutes November 9, 2000 SUBJECT: Fluter Mixed Use Project (Sterns Architecture) 2410 Newport Boulevard • Use Permit No. 3685 • Site Plan Review No. 79 A request to construct a mixed use building with 1,500 square feet of commercial space and 2 residential units. The Use Permit would allow the project with a reduced commercial FAR of 0.15 where 0.25 is required. The Variance would allow a minor reduction in landscape area within the required front yard setback area abutting Newport Boulevard. Public comment was opened. Russ Fluter, 2025 West Balboa Boulevard stated that he agrees with the findings and conditions of approval. Commissioner Kiser asked if the landscape is what requires the Variance, the fact that there is only 42% versus 5017o landscaping provided in the front yard? What alternatives might there be in designing the project and why you have to come for a variance on the landscaping? Mr. Fluter answered that when the landscape requirement was put in the Cannery Village /McFadden zone, this particular site or one like it was not anticipated. The typical lot in the Cannery Village is 30 x 93 foot lot that abuts an alley. This project, the only to gain access to the property is to create a driveway on half the property. You also need a walkway to get into the property because the code requires a walkway in addition to the driveway. That cuts you out of 50% no matter how you do it. This project is in the McFadden Square area border. Commissioner McDaniel noted that this -is supposed to be a commercial area. seems like we are putting housing in the middle of a commercial area. Mr. Fluter answered that the minimum requirement for commercial in this project is .25, which is 1,000 square feet more than I have. When you try to lay this site out that would require an additional four parking spaces. The site is allowed for both residential and commercial. One side of the site is Hooters Restaurant and the Balboa Boat Yard is on the other side. Commissioner Kranzley asked the applicant how he was going to attract tenants that aren't going to be sitting in here protesting every restaurant use and boat yard use in the future. I am concerned about the fact that we are sticking residential in the middle of fairly active commercial, which has been very difficult in this area of town. Mr. Fluter opined that is what makes the area great. Across from the boatyard are condominiums. We have had very little complaints. This site will have views 50 • INDEX Item No. 5 UP No. 3685 Site Plan Review No. 79 Denied • • City of Newport Beach Planning Commission Minutes November 9, 2000 over the boat yard. This is a loft project surrounded by commercial; it is not in a residential area. Anybody who rents or buys a residence in this kind of a neighborhood is going to know where they are buying and they are going to like it. Commissioner Kranzley asked for an explanation of the easement issue. I have this vision that we will have some boyfront walkway. Mr. Campbell stated that the Municipal Code requires that an easement be created that is 6 feet wide, horizontally abutting the bay. The required easement is to be recorded. Staff is recommending that we do an irrevocable offer to dedicate that issue. That offer to dedicate would be recorded against the property. If one of the abutting land uses does redevelop at some point in time, we can get a connection and the easement could then be recorded. Commissioner Kranzley clarified that we do not have an easement recorded on this piece of property, in the future we have the right to have an easement. That easement would never represent a taking of this property from the owner of the property. Public comment was closed. • Chairperson Selich noted his concern of*ris project. It is not good policy to be putting residential properties in between boat yards, I realize that the zoning permits that in this area, although it certainly does not mandate it. You can do all commercial on the property. If he wasn't asking for a FAR change and less landscaping, he would not be here and could just go in and get a building permit. Mr. Campbell.,noted that a Site Plan Review application is also before you that has specific findings of compatibility. There is a discretionary action and would come before the Planning Commission even without the FAR change or landscaping. Continuing, Chairperson Selich noted this is not a compatible use the way it is designed. The mixed -use provisions do not mandate that this be done and I do not believe it is within the intent of mixed -use development. It is primarily a residential use with little commercial. We are basically approving a residential use between a boat yard and a restaurant bar facility. I just can not support it. Commissioner Kranzley asked the applicant how he would feel about conditions regarding types of windows and things that would be in the residential portion of this application such as quadruple paned, etc. for soundproofing as much as possible? I have the same vision of how mixed use should work. Mr. Fluter answered that he would not have a problem with that. He stated that • the architecture would be a handsome building and have a theme of the area 51 IF111 1 City of Newport Beach • Planning Commission Minutes November 9, 2000 INDEX that when people drive by will be uplifted. I agree that there is a problem with the mixture of residential and commercial, but I would like to see a beautiful new building there than if someone put a 2500 straight commercial building there. I could put in air conditioning and talk to a sound acoustical engineer for further suggestions. Ms. Temple agreed that a requirement for an acoustical study be prepared to address sound attenuation within the residential structures be submitted prior or with the building application is within reason. All recommendations of that study would then be implemented within the project. Our current interior noise standard is 45 dBA. The question would be do you want to impose a more stringent standard than that. Commissioner Agajonian noted his concern with the design of the project. He stated he is in support of the project. Commissioner Kiser asked if there would be any problems with residents on this particular site between these two uses. Problems for the City in the way of lawsuits? Ms. Clauson noted that regarding lawsuits by virtue of the fact that we have placed residential there and somebody buys a house there, I don't believe so. As • far as future problems when somebody who owns the property next door wants to redevelop it make a change, sure there may be potential problems there. There is a potential problem with people complaining about noises next door for the operations of the boat facility, but in the case of that we would direct those property owners that.it is a private nuisance issue. Ms. Temple noted that we are involved with actual code enforcement issues with the boat yard, due to complaints from the adjoining 29th Street Marina residents having to do with early morning boat deliveries and back up bells, etc. that are creating complaints. We have not closed that file yet, as the issue has not been resolved yet with the business owner. Commissioner Kiser noted residential uses with commercial creates a nice community, but to the extent it is going to create a lot of problems in the future as residential uses are intermixed with the boat yard uses, I wonder whether this would start a trend towards losing all the boat yard marine type uses over time. Chairperson Selich noted that there is a variance being requested. There are strict standards for approving variances and other instances. They have mainly been for hillside areas, but one of the things we have to look at for consistency is the grounds for granting a variance. I don't see the grounds myself particularly in relation to the standards set in reviewing other variances. Commissioner McDaniel noted that mixed use could work, but we have created an island here. We have a boat yard on one side and a restaurant on the other • 52 • City of Newport Beach Planning Commission Minutes November 9, 2000 side that will be noisy and there is no place for this to expand. There is one little place here. I don't think it is fair to the boat yard to be putting someone who is bound to have concerns about early morning deliveries and doing boat work. That is what was there first and that is what it was zoned for originally to have that kind of businesses on the water, which will require access to the water. 1 couldn't support this. Ms. Clauson at Commission inquiry noted that the City is not liable for the issuance of a permit approval or something to operate within the Code. You have residences there and issues that will come up in the future and the complaints that the City will have to address when they occur. Commissioner Gifford noted her support of the comments made by the Chairperson. She noted that she is not persuaded to make findings for a variance and in terms of a commercial loft area, with the boat yard there it is akin to being industrial. I don't think our obligation is necessarily to the boat yard or to the surrounding property owners, I think it is a matter of good planning. I don't think this is workable, putting residential in there. Motion was made by Chairperson Selich to deny Site Plan Review No. 79, Use Permit No. 3685 and Variance No. 1239 subject to the findings for denial in Exhibit • 2 of the staff report. Ayes: McDaniel, Kiser, , Selich, Gifford Noes: Agajanian, Kranzley Absent: Tucker Exhibit No. 2 Findings for Denial Site Plan Review No. 79, Use Permit No. 3685 & Variance No. 1239 1. Surrounding uses include a boat yard and a restaurant. The City has experienced in the past and continues to experience land use conflicts between residential uses and boat yards and restaurants. The adjacent boat yard is an intensive marine - related, industrial activity permitted within the RMC district that has the potential to cause nuisances to residents of the project in the form of noise, refinishing activities and motor maintenance. Introduction of the residential uses adjacent to this use will generate complaints and pressure to regulate the boat yard in order to make it compatible with the project. Potentially further regulating the adjacent boat yard is contrary to the City's goal to preserve waterfront land for these necessary harbor activities. The adjacent restaurant is permitted to be open till l OPM on Sunday, 1 AM Monday to Thursday and 2AM Friday and Saturday and is a permitted use. Activities within the restaurant as well as patron activity in the parking lot during the late night . hours may become a nuisance to abutting residents. Permitting residences 53 INDEX City of Newport Beach • Planning Commission Minutes November 9, 2000 INDEX adjacent to the restaurant will generate complaints and increased pressure to further regulate the restaurant contrary to its permitted operational characteristics. Therefore, the proposed project is inconsistent with the abutting uses 2. The Zoning Code requires that a mixed -use project provide a minimum of 0.25 FAR in order to create viable commercial spaces. The proposed commercial spaces are not large enough to accommodate viable retail or marine- related businesses. The bayside suite is 1,000 square feet in area and due to its lack of visibility from Newport Boulevard, retail uses are unlikely. Although office the site is large enough for office uses, non - marine - related office uses are only permitted when 40% of the commercial area on the site is occupied with marine incentive use. Therefore, the marketability of the unit is very limited. The streetside suite is 500 square feet and due to its size, the suite would tend to favor a small office use rather than a retail use. The suite is located close to Newport Boulevard, and therefore has very good visibility; the size of the suite is very limiting for a retail establishment. Due to these limiting factors, compliance with the requirement that 40% of the commercial area be devoted to marine incentive uses is questionable. Larger and more viable commercial spaces will assist in compliance with the marine incentive use requirement. ..r +° 54 • . City of Newport Beach Planning Commission Minutes November 9, 2000 SUBJECT: Temporary Signs City of Newport Beach, applicant on behalf of property owners Cannery Village /McFadden Square Specific Plan Area) • Exception Permit No. 54 Request for an exception to the sign regulations of the Cannery Village /McFadden Square Specific Plan District that limit the size, duration and number of temporary signs. The exception will apply only to those commercial properties located within the Specific Plan Area where visibility or identification is impacted by construction associated with Public Works or Utility Projects. The exception will establish the Planning Director Approval procedure for review and conditional approval of requests for deviation of the Sign Code regulations Ms. Temple noted that this is an unusual request initiated by City Planning Department staff in regards to an issue that had been dealt with in the past at times when either the Public Works Department or the City Utilities Division are doing significant construction in an area in such a fashion that access to and visibility of businesses becomes difficult. This is currently happening across 32nd Street in the Cannery Village area, related to a storm drain project being done by the Public Works Department. We have been approached by a number of • the businesses within the village and fronting Newport Boulevard requesting some relief to give them some visibility`cruring the ongoing construction. This particular type of consideration does have precedence in that we processed an individual sign exception permit for the Arches Restaurant as it related to the construction of the Arches interchange a few years ago. It allowed them a significant relief from limitations on temporary signs. What staff is suggesting in this particular case is that the Planning Director be authorized through this exception permit to, on a case by case basis, evaluate the interim harm being done to the visibility of the business during the construction projects and to allow the Planning Director to approve temporary signs of longer duration and perhaps greater number. We view this as an opportunity to provide relief to those businesses. It would also allow us to test process in order to consider establishment of such a procedure on a more permanent basis for the whole City in the Zoning Code. At Commission inquiry, Ms. Temple stated: • Size of sign depends on location of business where visibility is being sought. • Size for signage has been accumulative - in some cases exceeding that square footage may be called for. • Staff needs to make sure that whatever relief is granted is reasonable and minimally necessary in order to ensure visibility. Commissioner Gifford noted that in terms of size, the areas in question are no long distance to see. It is not like seeing something off a freeway. I would like • to see the signs not large at all. For the purpose of identifying them as open 55 INDEX Item No. 6 Exception Permit No. 54 Approved City of Newport Beach Planning Commission Minutes 40 November 9, 2000 INDEX during construction and directing traffic to parking areas and access is appropriate. I don't see authorizing signs for the purpose of assisting in business identification. The way traffic slows down during construction gives everybody an opportunity to see the identification that is already there. I would be in favor of limiting the size of the signs. Ms. Temple answered that it is intended to be on a case by case basis. I would have no problem under the provision of accepting an exception to the duration and the number if the Commission wishes to limit the actual size of each individual sign. Particularly in this area, that would pose no problem. Because we have not had anybody make a specific request, we are attempting to create a procedure whereby they can be considered and approved. What we have suggested is an approval granted by the Planning Director, which the Commission could call for review. Commissioner Gifford asked for the criteria of getting an exception permit. What would I get that would show me what you were going to be judging my request against? Ms. Temple answered that during this limited time, staff would sit down with the applicant to look at the frontage and the problem involved and come up with a set of signs that would address the issues of the specific location of where the construction was going on and the type of visibility being affected by the • project in process. It would be case by case. This approval by the Commission of Exception Permit No. 54 with the guidance contained therein would be my authority to act. If you wanted to restrict the size that would be a true limitation. Otherwise, I would have the flexibility to look at the circumstances in a particular case and the problems relating to the visibility. This staff report specifies the guidance for the discretion to be applied. This would not be applied if the business just wanted more signs. Commissioner Kiser stated that this is only for Public Work and Utilities projects that are blocking businesses during .the City's construction time. I suggest that we add to the conditions that it is just for those purposes; a minor change that the largest size is with substantial justification. Mrs. Wood stated that the businesses have a legitimate concern with the City's construction projects and the impact on them. We did a similar thing with regards to the Arches bridge construction. It seems it would be fair to provide this in some form even if there is not the extent of flexibility that has been suggested in the staff report. Commissioner Gifford noted that we already allow for temporary signage; 100 square feet and 90 days a year. The Arches bridge project was exceptional in the amount of disruption. If we were to continue this to January, couldn't people use the 90-day permit to do what they need for the moment? • 56 • City of Newport Beach Planning Commission Minutes November 9, 2000 INDEX Ms. Temple stated that the primary issue is the number limitation, one sign. To the extent that they are identifying their business or trying to get people into their parking lot where they may have to go through some different path of travel that is not normal for the business. I think most of the business feel the number is really the most problematic. Commissioner Gifford noted that we could have this exception permit to allow the businesses to break up the 100 square feet limitation into as many signs as they feel appropriate. Ms. Temple agreed noting that the issue is really the number and duration as opposed to the size. Commissioner Kiser suggested 3 maximum signs and still within the 100 square feet requirement and then adding that this is only for the Public Works and Utilities projects. Motion was made by Commissioner Gifford to approve Exception Permit 54 to allow for exceptions to the zoning Code allowance for temporary signs for the purposes of allowing businesses to identify themselves as open during • construction and to direct business traffic to parking areas and access in the kinds of situations described by Commissioner Kiser. The exception would be that the 100 square feet can be used for up foo`three signs as opposed to one; 90 days or to the completion of the construction, whichever is longer. Ms. Clauson added that condition 1 says the exception permit approval shall extend to December 31, maybe if we added language that said this exception permit approval shall extend to approvals by the Planning Director in accordance with two through nine below and shall extend to December 31 st. In other words, the exception permit only applies to conditions on 2 through 9 below and that approval goes through December 31, 2001. The reason why is when you read condition 1 it seems the exception permit approval would extend to December 31 so that people that would come in and get it would have the right to do it through December 31, regardless of the limits put on. So, to eliminate that confusion I thought that if you could make it clear that the exception permit approval extends to compliance with 2 through 9 below. Commissioner Kiser suggested that it not be numbered 1, that it is an introductory and then do this under conditions. Commissioner Gifford suggested that under condition 3, line 2 the words 'size or has to come out. Also to add that the authority of the Planning Director under this exception permit shall expire. Ms. Wood asked if it would be better to remove the date and say to the end of • the construction period. 57 City of Newport Beach Planning Commission Minutes November 9, 2000 INDEX Commissioner Kiser noted his concern about the end of construction. He suggested leaving it to the ninety days and if it needs to be renewed, the Planning Director will have the discretion to allow that. Ms. Clauson noted that the duration of these Public Works projects are bid and have a timer period. It is not vague as somebody might try to argue. Ms. Wood noted that we are trying to help businesses that the City is impacting through our construction projects. If we make these people come back in at the end of 90 days to fill out an application form for an extension that we know we are going to grant it is asking them to deal with red tape and bureaucracy. Commissioner Kiser stated that given that they are Utilities projects and are more definable than homes that take five years to build, etc. I withdraw my suggestion. Ayes: McDaniel, Kiser, Agajanion, Selich, Gifford, Kranzley Noes: None Absent: Tucker EXHIBIT "A" FINDINGS AND CONDMONS OF APPROVAL FOR Exception Permit No. 54 Findinas: 1. The Land Use Element of the General Plan designates the Cannery Village /McFadden Square Specific Plan Area for a combination of "Retail and Service Commercial and Residential" uses. Retail and Office uses with associated signs are permitted in this 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 11 (Accessory Structures). 3. The approval of this Exception Permit will not be contrary to the Sign Code because: • The approval will establish a process that streamlines the review and approval for signs that deviate from size, duration and number requirements of the Sign Code. • The purpose of the use of temporary signs will not change by this approval since the signs approved through the Director's approval process will be of a limited duration. 58 . City of Newport Beach Planning Commission Minutes November 9, 2000 4. The approval of this Exception Permit to allow deviation from the Sign Code for size duration and number of temporary signs, is necessary to protect a substantial property right because: The adverse impact of public works or utility projects can have a detrimental affect on the existing commercial uses to be able to conduct business as usual. • The use of strategically placed temporary signage can aid patrons in locating businesses affected by construction projects. • The temporary signs can enhance existing business identification signs, direct business traffic to access and parking for the business, and when effectively utilized will reduce patron confusion that will in turn reduce traffic concerns in the area. 5. The proposed procedure for the granting of temporary sign approval by the Planning Director will ensure compliance with the intent of the Sign Code because: • The purpose of temporary signs established by the Municipal Code for di�lay for limited duration will remain in effect. Permanent signs will continue to require the application of an exception permit on an individual basis. • The temporary sign will be considered and reviewed based on the impacts of the public works or utility construction project and needs of the business or property to mitigate such adverse affect. • The Planning Commission will retain the authority to call up for review any decision of the Planning Director with the ability to sustain, modify or reverse the decision. Conditions: This exception permit approval shall extend to approvals by the Planning Director in accordance with 2 through 10 below and shall extend to December 31, 2002, after which date it shall become null and void. This exception permit approval cannot be extended. 2. Extensions of time for existing or temporary signs that conform to size and number requirements in accordance with Section 20.43.050 N -7 of the Newport Beach Municipal Code, can be granted by the Planning Director in accordance with the provisions of Section 20.91. Extensions of is time cannot be granted for duration beyond December 31, 2002, 59 INDEX City of Newport Beach Planning Commission Minutes • November 9, 2000 INDEX 3. The exception can be used for temporary signs up to three in number, which cannot exceed a total of 100 square feet. 4. Prior to issuance of building permits for placement of any temporary sign that exceeds the size or number restrictions of Section 20.43.050 N -7, shall be reviewed in accordance with the procedure granted by this exception permit and as conditioned below. 5. The applicant shall submit an application for Planning Director's Approval and all required accompanying material as required, at least two weeks prior to the proposed placement date, unless otherwise accepted by the Planning Director. 6. The application for Planning Director's Approval shall include a written statement of the justification for the proposed request, area dimensions (as measured by two sets of parallel lines around the sign), proposed maximum duration and proposed number of signs. 7. The duration allowed for any temporary sign shall not exceed 90 days or the duration of any construction project that prompted the temporary sign request, whichever is longer. 8. The temporary signs shall not be internally illuminated. 9. The sign location shall be reviewed and approved by the Public Works Department with regard to sight distance requirements prior to the issuance of the building permit. 10. The Planning Commission may add to or modify conditions of approval to this Exception Permit or recommend to the City Council the revocation of this Exception Permit, upon a determination that the operation which is the subject of this Exception Permit, causes injury, or is detrimental to the health, safety, peace, morals, comfort, or general welfare of the community. •s* Additional Business ADDITIONAL BUSINESS: a.) City Council Follow -up - Assistant City Manager Sharon Wood reported that at the last meeting of the City Council there were presentations by the Planning Director and Building Director at the Study Session on dealing with the high level of plan check activity; fees will be adjusted to accommodate additional staff; approved a resolution to make appointment changes to the Environmental Quality Affairs Committee; 60 • 0 • City of Newport Beach Planning Commission Minutes November 9, 2000 the zoning for the annexation and the Mariner's Mile amendments were approved on second reading; the General Plan Amendment initiations were approved as recommended; Council received a report from the General Plan Update Committee recommending treatment of the airport area; and the Balboa Peninsula Sign regulations were approved on first reading. b.) Oral report from Planning Commission's representative to the Economic Development Committee - none. C.) Project status - report on mailing of public notices was available but not heard this evening. d.) Matters that a Planning Commissioner would like staff to report on at a subsequent meeting - Commissioners Kranzley and Gifford asked for a report on the Balboa ficus trees; proposal of removing trees with the intent of the business owners to improve their facades. e.) Matters that a Planning commissioner wishes to place on a future agenda for action and staff report - The affects of the passage of Measure 5 on the City. Ms. Temple added that as proposed, Koll, Dunes and Conexant would require submittal to the voters. f.) Requests for excused absences - none. Chairperson Selich asked to start the meeting of December 71h at 6:00 p.m. with the intent to clear all the items and if needed adjourn to a meeting on December 14th. 0 .le.: ADJOURNMENT: 12:45 a.m. STEVEN KISER, SECRETARY CITY OF NEWPORT BEACH PLANNING COMMISSION • 61 INDEX Adjournment