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HomeMy WebLinkAbout12/06/2012NEWPORT BEACH PLANNING COMMISSION MINUTES NEWPORT BEACH PLANNING COMMISSION MINUTES Council Chambers — 3300 Newport Boulevard Thursday, December 6, 2012 REGULAR MEETING 5:00 p.m. CALL TO ORDER — The meeting was called to order at 5:00 p.m. PLEDGE OF ALLEGIANCE — Commissioner Tucker III. ROLL CALL PRESENT: Brown, Kramer, Myers, Toerge and Tucker ABSENT (Excused): Ameri and Hillgren (arrived at 5:57 p.m.) 12/06/2012 Staff Present: Kimberly Brandt, Community Development Director; Brenda Wisneski, Deputy Community Development Director; Leonie Mulvihill, Assistant City Attorney; Tony Brine, City Traffic Engineer; Gregg Ramirez, Senior Planner, Ruby Garciamay, Community Development Department Assistant; Associate Planner Fern Nueno; Assistant Planner Makana Nova, Associate Planner Rosalinh Ling IV. PUBLIC COMMENTS - None V. REQUEST FOR CONTINUANCES - None VI. CONSENT ITEMS ITEM NO. 1 MINUTES OF NOVEMBER 8, 2012 Recommended Action: Approve and file Chair Toerge noted corrections to the minutes submitted in writing by Commissioner Tucker. Interested parties were invited to address the Commission on this item. Jim Mosher commended the services provided by Community Development Department Assistant Ruby Garciamay and suggested that her name be added to the Staff Present section of the minutes. There being no others wishing to address the Commission, Chair Toerge closed public comments for this item. Motion made by Commissioner Tucker and seconded by Commissioner Brown and carried 5 — 0, to approve the minutes of the Planning Commission meeting of November 8, 2012, Regular meeting, as amended. AYES: Brown, Kramer, Myers, Toerge, and Tucker NOES: None ABSTENTIONS: None ABSENT (Excused): Ameri and Hillgren (arrived at 5:57 p.m.) Page 1 of 19 NEWPORT BEACH PLANNING COMMISSION MINUTES 12/0612012 VII. PUBLIC HEARING ITEMS ITEM NO.2 Goldenrod Variance (PA2012 -126) Site Location: 211 Goldenrod Avenue Associate Planner Fern Nueno presented details of the report addressing location, typical lots in the vicinity, lot size, project details, requirement for Coastal review, required setbacks, request by the applicant of a five -foot rear setback, FAR, buildable area, zoning code requirements and limitations, and details of variances requested. She addressed the roof and height limit, proposed garage, adjacent properties and comparisons with typical lots in the area. Ms. Nueno presented recommendations as stated in the report. Chair Toerge opened the public hearing and invited the applicant to make a presentation. Annette Wiley, Bauer and Wiley Architects, offered to respond to questions noting that her client is not a developer and is prepared to make substantial investment in the project. She noted working closely with City staff and addressed the plan adding that it involved compromises by all parties. She addressed challenges overcome, respecting adjacent property views and modifications made to the plan. She stated agreement with the report and acceptance of the conditions of approval. Interested parties were invited to address the Commission on this project. Jim Mosher referenced comments submitted in writing and expressed confusion regarding condition of approval number four regarding approval from the Coastal Commission. Discussion followed regarding triggers for Coastal Commission requirements. There being no others wishing to address the Commission, Chair Toerge closed public comments for this item. Chair Toerge addressed the challenges faced with the size of the lot and spoke in support of the project. A reference was made to the most recently updated Resolution presented in the Commission's packets, clarifying the project description, verifying what was being approved, and deleting condition number six. Motion made by Chair Toerge and seconded by Commissioner Kramer and carried 5 — 0, to adopt Resolution No. 1899 approving Variance No. VA2012 -006. AYES: Brown, Kramer, Myers, Toerge, and Tucker NOES: None ABSTENTIONS: None ABSENT (Excused): Ameri and Hillgren ITEM NO. 3 Plaza Corona del Mar (PA2010 -061) Site Location: 3900 and 3928 East Coast Highway Assistant Planner Makana Nova presented details of the project addressing location, development standards, surrounding land uses, project components, floor area ratios for commercial districts, density requirements for residential uses, parking, existing conditions, consolidation of parcels, the Page 2 of 19 NEWPORT BEACH PLANNING COMMISSION MINUTES 12/06/2012 vacated alley, proposed property lines, second -story addition, and existing curb configuration. She introduced the commercial component including the outdoor dining patio, addition of common and lobby areas, elevations, building height limits, parking for commercial properties, accessibility of parking, guest parking spaces, maintenance of adequate definition between the residential and commercial components and landscaping. She presented details regarding the proposed retaining wall and grade differentials, addition of planters and landscaping, and location of trash enclosures. She presented details of the residential component addressing common open space areas, private open space areas, access to the units, subterranean garage, private garages for each unit, guest parking spaces, elevators, elevations, compliance with the height limit, variance required to establish a fifteen -foot setback along East Coast Highway and comparable floor areas. She addressed setback requirements, buildable areas, floor area limits, lot coverage and consistency with the adjacent developments relative to setbacks. Ms. Nova reported that regarding the variance, staff has considered the request and determined that it is consistent with the surrounding development pattern and that the lot coverage and floor -area limit area are also consistent. She noted that staff analyzed the project for CEQA and Coastal compliance and that the project is not located within the Coastal zone and does not have a land -use designation within the Coastal Land -Use Plan and addressed CEQA exemptions. She stated that the Commission has been provided with revised plans, a new copy of the bio -study and a draft resolution correcting grammatical errors. Ms. Nova reported that the project is at the eastern entrance to Corona del Mar Village and that the property has been under - utilized for a long time. She concluded that staff believes the findings can be made in support of the project. She noted that staff has received no written correspondence regarding the project. There has been one inquiry requesting a staff report but neither in support or in opposition to the project. Commissioner Tucker indicated he received comments regarding not needing more condominiums and complaining about additional traffic resulting from the project in the City. Ms. Nova clarified that comments were received from Jim Mosher. Commissioner Tucker commented regarding documents governing reciprocal easements for parking and noted that the trash enclosure should be included in the document and that it should be clarified that each of the uses must have their own trash bins. He inquired about building over the existing Gallo's. Ms. Nova reported that the structure will be built over the existing Gallo's and that the exterior will be modified for consistency with the new structure. Brief discussion followed regarding parking requirements and possible parking shortages. Commissioner Tucker identified the need for commercial parking and the possibility of placing time limits on the guest parking spaces. Chair Toerge invited the applicant and those interested to address the Commission on this item. Marcelo Lische, Project Architect, addressed compliance with new Code requirements, previous approval of a specialty food use, conflicts with parking addressed through conditions of approval (condition number 17), and limitation of hours for both uses for the shared parking. He noted that through the creation of CC &Rs the issue will be addressed as well. Assistant City Attorney Leonie Mulvihill reported that the Commission could condition the matter either by a specific provision in the reciprocal easement agreement or within the CC &Rs restricting parking. Page 3 of 19 NEWPORT BEACH PLANNING COMMISSION MINUTES 12/06/2012 Magdi Hanna reported that originally, the project was going to be a car spa, but was prohibited because it was inconsistent with surrounding properties. He presented a brief history of the property and the intent of the proposed project. Corona del Mar resident, Dan Purcell, addressed the vacated easement and noted that it is a lot of land to give away and has enabled the property owners to build larger units than they would have been able to do. He presented other options that would have been possible rather than giving away that land and encouraged maintaining the corridor view. He stated that there already is a development named Corona del Mar Plaza. There being no others wishing to address the Commission, Chair Toerge closed the public hearing In response to an inquiry from Chair Toerge, Ms. Nova reported that the easement has already been vacated and that a portion was vacated at the last Council meeting. She noted that the portion contributed to the FAR for the proposed commercial development. Ms. Nova introduced elevations of the residential portion of the project. Chair Toerge re- opened the public hearing. Mr. Lische explained the location of the fence, the separation between the building and the property line and addressed grading. There being no others wishing to address the Commission, Chair Toerge closed the public hearing. Chair Toerge addressed shared parking with the commercial uses and noted additional parking spaces are being added on the street. He encouraged restricting the use of the parking lot for commercial uses. Discussion followed regarding the parking spaces required for the residential portion of the project. Vice Chair Hillgren arrived at this juncture. (5:57 p.m.). Commissioner Kramer stated that the project needs further consideration and thought, that the parking issue is problematic and inquired regarding the possibility of the applicant having to appear before the Planning Commission again for approval of design. Ms. Nova stated that the applicant would not. Commissioner Kramer was not satisfied with the data provided. Commissioner Brown also addressed the parking issue. Community Development Director Kimberly Brandt suggested that the item could be continued for additional information regarding the parking issue. Vice Chair Hillgren noted that he was unable to hear the report and that if the Commission decides to take action at this time, he will abstain from voting. Commissioner Tucker addressed the reciprocal access agreement for the joint use of the spaces but noted that the document lacks a maintenance protocol and felt that the mechanics on how it will work are unclear. Page 4 of 19 NEWPORT BEACH PLANNING COMMISSION MINUTES 12/06/2012 Discussion followed regarding a parking waiver of one parking space for residential and no residential parking on the commercial side. Motion made by Chair Toerge and seconded by Commissioner Tucker and carried 6 — 0, to continue the project until the Planning Commission meeting of January 3, 2013. Commissioner Kramer indicated that he will confer with staff after the meeting to clarify what he would like to project to address. Commissioner Tucker requested clarifying some items within the conditions of approval including documenting easement agreements before issuance of a building permit/certificate of occupancy, indicating that each use gets the right to use one of the areas for the trash bin, exclusively and establishing a time limit for residential parking uses of the shared parking areas. AYES: Brown, Hillgren, Kramer, Myers, Toerge, and Tucker NOES: None ABSTENTIONS: None ABSENT (Excused): Ameri ITEM NO.4 Port Theater Alcohol Service (PA2012 -070) Site Location: 2905 E. Coast Highway Assistant Planner Makana Nova presented details of the request addressing the property location, surrounding land uses, proximity to residential and commercial uses, a brief history of the theater, seating plans, occupancy loads, flexible floor plans for the first floor, requested hours for alcohol service, and typical operating hours. She noted that the theater renovation was approved under the Landmark Structures Ordinance, which allowed the renovation provided that the occupant load and seating did not exceed the original use. She reported there was no parking provided with the original use and no additional parking was provided for the renovation of the theater. She added that alcohol service would be limited to the second floor mezzanine for the majority of theater operations and limited to patrons 21 years of age and over. Alcohol service on the first floor would be allowed only during 21 and over screenings. She presented a visual tour of the theater prior to renovation. She addressed access to the theater and the applicants requesting to serve alcohol on both levels of the theater at presentations limited to patrons 21 years of age and older. She presented information regarding lower -level concessions, current activities, the seating areas and screen. She reported that comments were received from the Police Department including an analysis of crime statistics. She described existing commercial uses in the district, reviewed surrounding land uses, and showed the location of residential units adjacent to the commercial corridor areas and establishments within the immediate vicinity currently providing alcohol. Ms. Nova stated that the Police Department has reviewed the project and has no objections to the project requests given the conditions and hours of operation proposed. She noted that dancing is not proposed, that a security plan is required prior to implementation of the use, and presented findings, recommendations and next steps. Ms. Nova reported that a revised resolution has been provided, that 104 letters were received in support of the project as well as one letter in opposition and one comment letter. In response to an inquiry from Commissioner Kramer, Ms. Nova addressed the hours of alcohol service limitations for the existing surrounding establishments. Page 5 of 19 NEWPORT BEACH PLANNING COMMISSION MINUTES 12/06/2012 Vice Chair Hillgren inquired regarding the lack of ability to serve alcohol on the lower level, the possibility of touring the facility and the rationale for prohibiting alcohol service at the lower level. Ms. Nova noted that the primary concern was security at the lower level if patrons of all ages were allowed. She reported the Island Cinemas at Fashion Island have made a request to allow alcohol service at all age screenings but that the case is pending at this time. Commissioner Tucker indicated that he would like to hear from the applicant regarding other activities that could occur at the theater. Chair Toerge commented positively on the renovation of the theater and noted that the applicant makes it clear that in addition to offering movies, they intend to cater to performing arts, lectures, sporting events, pre and post show gatherings, corporate and community events, public and private parties and a dance floor for private events. He noted a condition restricting the use of a dance floor for public events. He stressed the importance of considering applications on their own merits without comparing with other establishments. He addressed distinctions and differences between this project and other projects in the City, stated that the land -use runs with the land and described an Operator License Ordinance as a tool to ensure the establishment is operated to the benefit of the community and does not run with the land. He felt that the project is perfectly suited for an Operator License process and felt it is required by the terms of the ordinance. Chair Toerge addressed the late -hours concept and prohibiting the sales of alcohol after 11:00 p.m. He noted a lack of restrictions on bottle service and felt that alcohol will be consumed after 11:00 p.m. He indicated the he is in support of the application as long as it stays and acts the way it is supposed to act. He expressed concerns regarding what the operation could become without restrictions and reported that the Operator License must be secured through the Police Department and that it is the most effective tool to balance out the interests. He stated that he will not support the application, absent the Operator License Ordinance. He referenced the applicable Code Section 5.25.010. Chair Toerge opened the public hearing and interested parties were invited to address the Commission on this matter. Michael Cho, Attorney Representing the Applicant, presented a brief background and stated that in order to comply with the requirements of the Zoning Administrator, they decided to work with staff and stated that if there is an inclination that an Operator License be required, he would recommend to his client to look at other issues rather than limiting the time to cease sales and consider the process in order to continue sales after 11:00 p.m. He addressed the possibility of holding New Year's Eve parties. He reported on the results of a recent community meeting where residents commented that it would be nice to be able to enjoy an adult beverage on the lower portion of the theater. He introduced and deferred to Jessica Prause to provide a history of the theater, renovation and the proposed use. Chair Toerge indicated that to the degree that the applicant would accept his earlier proposal, Mr. Cho would have to modify the proposal. Ms. Brandt reported that this was originally designed to be a minor use permit application but that the nuance is normally, when you have alcohol sales ending at 11:00 p.m., it coincides with the business closure. This is an unusual situation where the use would end at 2:00 a.m., but alcohol sales would end at 11:00 p.m. The issue was discussed with the applicant and staff felt it was appropriate to bring it forward to the Planning Commission. She stressed that the project is unique and requires the input of the Planning Commission. Staff felt that this would streamline the process. Page 6 of 19 NEWPORT BEACH PLANNING COMMISSION MINUTES 12/06/2012 Jessica Prause, representing the Port Theater, presented a brief history of the theater and provided historical pictures of the venue. She addressed abandonment of the theater, the granting of Landmark status, and the state of disrepair prior to renovation. She addressed preservation of the original sign and the intent to keep some of the historical elements while renovating the interior to a high -luxury theater. She addressed movie theater trends and examples of similar theaters. Ms. Prause stated that the goal is to be an integral part of the Corona del Mar community and noted the need to offer competitive amenities with other luxury theaters. She addressed the number of people using the theater since its reopening and audience demographics. Ms. Prause listed movie performances and other events held at the theater and future plans for performances. She addressed community outreach, receipt of support and referenced a petition with over 900 signatures in support of the project. She provided a video from the Sherman Library regarding the theater and addressed comments of concerns received from residents noting that there are no plans for the venue to become a bar or a nightclub. She noted they would have limited liquor offerings in connection with events or movies. Doug Urbanski, representing the Port Theater, stated the owner is agreeable to the idea of going through the Operator License process if that will simplify the process but noted that under the minor permit process, the conditions of approval specify what they can and cannot do in the operation of the theater. Chair Toerge addressed the application and his proposal to add a condition that in order to approve what is being requested, the applicant must obtain an Operator License as required by the Ordinance when providing entertainment in conjunction with the alcohol service. Mr. Urbanski indicated agreement with modifying the proposal to reflect full service with general admission, similar to other movie theaters and indicated willingness to work with the Police Department in order to do that in a safe manner. Chair Toerge replied that the Commission will not change the application but that he is proposing an Operator License because entertainment is being provided with alcohol service and that is a requirement of the Ordinance. If the applicant wants to propose something differently, they would have to do so. Mr. Urbanski reported they would like to modify the proposal so that alcohol service is not restricted to the mezzanine level but for general admission downstairs as well. Commissioner Hillgren indicated that he would be supportive of the modification but expressed concerns regarding management and enforcement. Mr. Urbanski stated that a lot of those issues would be addressed with the security plan required by the Police Department. He added that the same standards used elsewhere would be used at the facility, including proper employee training, adequate lighting, carding every individual and engaging theater security. Chair Toerge stated that one of his concerns is that staff has not reviewed the option and there is no opinion presently from them. Mr. Urbanski reported that the issue has been discussed with staff and the Police Department. Mr. Cho reported speaking with the property owner and indicated wanting to amend the application to allow alcohol service during general admission to the downstairs area while ceasing alcohol sales and Page 7 of 19 NEWPORT BEACH PLANNING COMMISSION MINUTES 12/06/2012 consumption at 11:00 p.m. The owner will agree to the Operator License process as suggested and go through appropriate conditioning and work with the Police Department for the security plan. Service to the downstairs area would be provided by a server. Chair Toerge expressed concern with expanding the alcohol service to the entire theater when that concept had not been reviewed and addressed by the NBPD and planning staff. He stated that he would support continuing the item so that the concept could be considered. Ms. Brandt noted that what Mr. Cho is proposing would be a significant change from what is before the Commission at this time. She recommended continuing the item so that there is sufficient time to study and understand the proposal. Commissioner Tucker stated he was not familiar with the Operators' License and asked if an Operator License is required regardless of the use permit. Ms. Brandt stated that a use permit would still be needed, that it's a double - permit requirement and is not unusual in terms of providing live entertainment. Discussion followed regarding the possibility of having the use permit narrowed and the Planning Commission's review of the Operator License. Ms. Brandt reported that the Operator License is issued by the Chief of Police and not reviewed by the Planning Commission. She added that the permit involves the details of the security plan and regarding alcohol beverage services, which runs with the operator and not with the land. It provides one more layer of regulatory control that can be revoked simpler than a revocation of a Conditional Use Permit. Chair Toerge noted that the Operator License can be more restrictive than the use permit but cannot be more permissive. In response to Commissioner Myers' inquiry, Ms. Brandt reported that the special event permit is only required when the seating or capacity of the venue is increased beyond 350 people to 500. There are different types of events planned for the venue and if they do not exceed 350 people, they will not require a special events permit. Chair Toerge conducted a preliminary straw vote to determine interest in continuing the matter. Vice Chair Hillgren reported he would support a continuance but would be interested in what the public has to say. Commissioner Myers indicated he would support a continuance to allow the applicant to clarify the situation and staff to study the proposed modifications and suggestions. Commissioner Kramer indicated he would favor approving the application as recommended by staff and wants to do what is in the best interest for the business. Commissioner Brown indicated that he would support a continuance but that it would depend on what the applicant desires. Commissioner Tucker indicated that he will not support a continuance. Commissioner Tucker felt that there are many details that need to be cleaned up in the use permit and expressed concerns with the other theater uses and potential impacts. Interested parties were invited to address the Commission on this item. William Lyle indicated that he is opposed to the project and reported they recently had an event where they served alcohol at the Port Theater. He expressed concerns with their reliability in the future and addressed the number of places with liquor licenses in the area. He felt that it sounds like it would be Page 8 of 19 NEWPORT BEACH PLANNING COMMISSION MINUTES 12/06/2012 a nightclub and encouraged the Commission to look at other proposed events and felt that it will turn into something that will not be pleasant for the community. Nick Froehlich commented on future owners and how they would interpret the use permit. He addressed the length of time that it will take for an Operator License and the Commission's ability to interpret the Operator License law and whether or not this unique situation was the intent of the law. He spoke in support of the project. Edward Hepner stated he understands the Chair's proposal but felt it would have unintended consequences and that the present owners could argue that they should be treated equally under the Operator License. He asked the Chair to withdraw his proposal and indicated support for staffs recommendations. Walter Sebring spoke in favor of the project noting staffs recommendations, no objections by the Police Department and noted the owner's investment in the community. He felt that it is incumbent on the community to make sure of the Port Theater's success. Serge Cohen spoke in support of the project and suggested allowing alcohol only during movie showings and not during other events and allow alcohol on the bottom level only if all patrons are over 21 years of age. Ali Jahangiri noted that the venue was an eyesore and that the owner has invested a lot in renovating the theater. He addressed the owner's willingness to be flexible and felt that the Commission should use its power to help and promote businesses in the City. He spoke in support of the project and urged the Commission to not create extra bureaucracy and regulations which is bad for business. Jim Mosher felt that the applicant is pushing the envelope trying to see what they can get away with. He referenced previous requests by the applicant and changes and noted that the Police Department has suggested that alcohol service be restricted to the balcony, only and to the lower level when admission is restricted to people 21 years of age and over. He addressed the Island Theater and noted it is a different type of liquor license. Dan Purcell noted that the Fashion Island theater is a different situation than the present application. He addressed challenges and expressed concerns that this will turn into a sports bar. He addressed the lack of parking and felt it is becoming a special events nightclub and voiced support for an Operator License. Bailey Cozner reported that she helps run a local non - profit and recently had an event at the Port Theater. She stated receiving feedback from members and noted that the potential for good should overcome what is being perceived as potential problems. She reported that there are not many spaces to consider holding events and spoke in support of the project. Ali Zadeh, owner of the Port Restaurant which is adjacent to the theater, agreed with the need to continue the item to study it further. He expressed concerns with a lack of a use permit and felt that all of the proposed uses should be added to a comprehensive use permit in order to know exactly what the theater is and the intention of what it is to become. He urged the Commission to do the right thing for the community and felt there are other issues to consider beyond the ability to sell alcohol or not. He stated that in the past, it was exclusively a movie theater and that any proposed new uses should be included in the use permit and a security plan is in place before any applications are heard. He addressed trash, delivery, and parking issues adding that they would be a detriment to the surrounding neighborhood. Page 9 of 19 NEWPORT BEACH PLANNING COMMISSION MINUTES 12/06/2012 Chris Beaufort indicated he opposes the project as currently specified and agreed with Chair Toerge and Commissioner Tucker's comments. He felt there are too many open -ended issues to be resolved and expressed concerns regarding the lack of parking. Carol Ann Rohr thanked the Commission for giving careful consideration to this matter and spoke in opposition to the project. She appreciated the Commission being concerned regarding the possibilities of ownership changes and the consequences of the permit running with the land. She agreed that the proposal is very open -ended regarding the types of events that will be held and addressed the lack of parking. She agreed with requiring an Operator License and clearly defining what special events are proposed. She suggested that the Commission consider parking in the area at a future meeting. Jason Pitkin commented positively on the theater and its staff and spoke in support of the proposed project. He spoke positively on the efforts of the owner. There being no others wishing to address the Commission, Chair Toerge closed the public hearing. Discussion followed regarding the normal time it takes to process an Operator's License and Ms. Nova reported it takes approximately six weeks. Chair Toerge explained his interpretation of the Operator License Ordinance and indicated he is trying to support the theater's request, appropriately. He stated that the Planning Commission does not have the ability to waive the Operator License Ordinance when entertainment is combined with alcohol. Motion made by Chair Toerge, seconded by Vice Chair Hillgren to continue the item. No vote was taken. Ms. Brandt requested clarification regarding the applicant's desire. Vice Chair Hillgren commented on the intent to move the project forward and felt that allowing the theater to sell alcohol would help it from a business point of view. He addressed the prohibitions under the conditions of approval and agreed with the need for an Operator License. Commissioner Brown questioned the need to continue the item because the applicant asserted they want to make some changes and the possibility of approving the item with the condition that an Operator License must be obtained. Commissioner Tucker addressed inconsistencies in the document and suggested returning in two weeks to reconsider the item. He reported that the majority of the Commission members are real estate developers and do not act to stop projects through bureaucracy. Chair Toerge re- opened the public hearing. Mr. Cho reported that the owner wishes to withdraw the request to have the lower level open for alcohol service to general admission and will continue with what was proposed in the staff report. He requested alcohol service at the mezzanine level and at the lower level only when the theater is open to those 21 years of age and older. Sales, service, and consumption of alcohol will be cleared by 11:00 p.m. preventing any possibility of the venue being turned into a nightclub. He stated agreement with the inclusion of an Operator License requirement. There being no others wishing to address the Commission, Chair Toerge closed the public hearing. Page 10 of 19 NEWPORT BEACH PLANNING COMMISSION MINUTES 12/06/2012 Commissioner Tucker suggested considering the conditions and referenced Condition Number 7 adding that it should be amended to include the prohibition of alcohol sales, service or consumption after 11:00 p.m. He addressed the issue of bottle service and addressed Conditions Number 9, 10 and 14 and suggested clarification and consistency in language. He expressed concerns with the language "actual events" related to sports - related events. Regarding outside promoters, Commissioner Tucker felt that the item needs to be clarified and narrowed. He addressed parking issues and stated he'd like to make sure that the theater will be an entertainment type of venue rather than a sports bar or a nightclub. He agreed with adding the requirement of an Operator License as a condition as well. Chair Toerge felt that the conditions should be addressed at this time. Regarding Condition Number 7, he agreed with adding the prohibition of alcohol sales, service or consumption after 11:00 p.m., regarding Condition Number 8, he suggested a prohibition of bottle service. Discussion followed regarding clarifying Condition Numbers 9, 10 and 14 and clarifying what "other actual events" mean. Regarding Condition Number 9, Chair Toerge suggested modifying the condition to indicate that "alcohol service at the lower level shall only be considered when access is restricted to patrons 21 years of age and over". Ms. Brandt suggested adding "when access to the entire theater is restricted to patrons 21 years of age and older ". Relative to Condition Number 10, Chair Toerge felt that the condition is redundant but re -read the condition indicating "access to the second level when alcohol is served, shall be strictly monitored ". Chair Toerge suggested deleting the first line of Condition Number 14. Discussion followed regarding alcohol service during all permitted uses versus theater use. Chair Toerge asked Assistant City Attorney Mulvihill to suggest language for modifying Condition Number 14. Regarding Condition Number 16, relative to using outside promoters, Commissioner Tucker suggested prohibiting a concession -type arrangement for private events with the intention that the applicants not share profits, but for the applicant is the operator; not to license the operation so that they can claim it is a private event. Vice Chair Hillgren stated that the Operator License could deal with that issue. Commissioner Tucker suggested modifying Condition Number 16 for further clarification of the matter Chair Toerge addressed Condition Number 18 noting that it does not restrict dancing for private events and recommended adding a condition requiring an Operator License from the Police Department. Assistant City Attorney Mulvihill suggested language for Condition Number 14 as follows, "Alcohol service and consumption shall only be permitted in conjunction with theater use and uses authorized by this permit and the Landmark Theater Ordinance ", (deletion of the next sentence), and "This Page 11 of 19 NEWPORT BEACH PLANNING COMMISSION MINUTES 12/06/2012 condition does not prohibit alcohol service and consumption during show intermissions and other routine breaks in entertainment'. Commissioner Tucker suggested language for Condition Number 16 as follows: 'The Applicant shall not license the premises to any outside promoter or other event coordinator." Discussion followed regarding Condition Number 17 requiring that quarterly gross sales of alcohol not exceed the quarterly gross sales of food during the same period. Should that not occur, that would be a violation of a condition of approval and the Applicant would be cited. The Police Department would have the authority to be provided with receipts upon demand. Assistant City Attorney Mulvihill suggested leaving that condition as is in that there are already remedies in place to address that situation. The Code Enforcement process would provide an opportunity to rectify the matter. Commissioner Tucker addressed the possibility of using various television screens to broadcast different sporting events. Chair Toerge indicated he would favor a condition that would limit the event to a single television broadcast. Motion made by Chair Toerge and seconded by Commissioner Brown and carried 6 — 0, to adopt a Resolution approving the minor use permit UP2012 -009 subject to the findings and conditions in the staff report with the following changes: Condition No. 7: There shall be no alcoholic beverage sales, service or consumption after 11:00 p.m.; Condition No. 8: Add a sentence that there be no bottle service sales allowed with the exception of wine; Condition No. 9: Remains the same but adding a sentence, "On the lower level of the theater alcohol service and consumption shall only be permitted when access is restricted to patrons 21 years or older, for public events "; Condition No. 10: Remain as suggested in the revised resolution; Condition No. 14: "Alcohol service and consumption shall only be permitted in conjunction with theater use and uses authorized by this permit and the Landmark Theater Ordinance ", (deletion of the next sentence), and 'This condition does not prohibit alcohol service and consumption during show intermissions and other routine breaks in entertainment'; and Condition No. 16: 'The Applicant shall not license or grant concessions for the premises to any outside promoter or other event coordinator ", and add conditions that 'The Applicant shall apply for and secure an Operator License subject to the conditions of the Police Department' and 'The Applicant shall be limited to providing a single broadcast at any one time ". Chair Toerge invited the applicant to address the Commission. Mr. Cho reported that the applicant has acknowledged that the proposed changes to the conditions of approval are acceptable. Chair Toerge closed the public hearing and called for the question. AYES: Brown, Hillgren, Kramer, Myers, Toerge, and Tucker NOES: None ABSTENTIONS: None ABSENT (Excused): Ameri RECESS /RECONVENE Chair Toerge called for a recess at 8:15 p.m. The assembly reconvened at 8:30 p.m. with all Members present, except Commissioner Ameri. Page 12 of 19 NEWPORT BEACH PLANNING COMMISSION MINUTES 12/06/2012 ITEM NO. 5 Uptown Newport (PA2011 -134) Site Location: 4311 -4321 Jamboree Road, North side of Jamboree Road. Between Birch Street and Fairchild Road Associate Planner Rosalinh Ung presented details of the proposed project addressing location, existing conditions, previous study session and consideration by the Planning Commission and public, and specified the revisions made subsequent to direction by the Commission. She addressed the number of housing units related to affordable housing requirements and the Draft Development Agreement. She noted that the Draft Development Agreement identifies public benefits provided and development rights granted and addressed the proposed term of the agreement. Ms. Brandt addressed changes to the Draft Development Agreement in consultation with the Applicant and detailed each. Ms. Ung reported receiving a total of seven letters from property owners in the Koll Center in opposition of the proposed project with concerns regarding building shadows, construction noise, excessive density, and increases in traffic and land -use compatibility. She stated that several letters were received in support of the project. JoAnne Hadfield of The Planning Center provided an overview of the components of the environmental process under CEQA. She reported that subsequent to the Planning Commission's study session, in October, the public review period for the draft EIR closed on October 24, 2012. The City received 26 comment letters on the draft EIR and Ms. Hadfield addressed the Final EIR requirements under CEQA including a list of those who provided comments, responses to individual comments and revisions required. She explained categories of revisions made and updates to the final document. She stated that the majority of remaining issues were from surrounding property owners and adjacent to the site. She addressed the issues of concern expressed by the public and referenced Section 3 of the Final EIR specifying comments and responses provided and other elements revised. She addressed an update of the traffic analyses and results of analyses for the various categories. Ms. Hadfield addressed the facts and findings and explained the latter for the Commission to consider and approve as well as significant and unavoidable impacts. She addressed project alternatives and feasibility and City requirement to adopt a Statement of Overriding Considerations to provide reasons the City decides to approve a project in light of the significant unavoidable impacts. Ms. Ung presented recommendations and offered to respond to inquiries from the Commission. Should the Planning Commission support staff's recommendation, the project would be scheduled for City Council public hearings in the future at the new City Hall. Should the Planning Commission conclude the deliberation and make project recommendations to the City Council, the City Council will consider the Notice of Intent to override the Airport Land Use Commission's determination which has been scheduled for December 11, 2012. Chair Toerge invited the applicant to address the Commission. Coralee Newman, Government Solutions, Inc. introduced the project and addressed the start of the review process and noted that changes were made to reflect the Commission's input and comments. She expressed appreciation for staffs efforts on this matter. She reported that through outreach, the majority of residents agreed that the airport is urban in character and is different from other Newport neighborhoods. She noted that the goal for the airport area was the reuse of underperforming industrial and office properties to be redeveloped in cohesive residential neighborhoods in proximity to jobs and services and that the proposal meets that goal. She addressed General Plan unit allocations Page 13 of 19 NEWPORT BEACH PLANNING COMMISSION MINUTES 12/06/2012 and the minimum and maximum densities placed, retail square feet and the number of proposed residential units. She illustrated connectivity and how it was anticipated in future plans. Ms. Newman addressed the requirement for development of a conceptual development plan and stated that the proposed project is in conformance with the plan. Ms. Newman addressed the organization's vision and stated that residents love living in Newport Beach, the need for an urban village in the preferred location. Bill Shophoff, The Shophoff Group, noted incorporating much of the Commission's input to meet questions and concerns. He presented examples of the architecture, the Master Site Plan, connectivity to Von Karman Avenue and other connection points, revisions in setbacks, widening the paseo for added public accessibility and access to open space. He addressed entries and access to the development, parks, the ability to use an easement, pedestrian circulation, existing trails, the phasing plan, definition of the obligations of the master developer, vehicular access during the various phases and a description and details of the proposed parks and amenities. Mr. Shophoff addressed parking and options, building heights, number of structures allowed in each area, mitigation measures to address public concerns and conditions of approval. He reported that there will either be above - grade parking or subterranean. He added that a Master Association will maintain all of the public areas, including parks. The major plans for infrastructure will be back before the Commission at a later date. Mr. Shophoff addressed architecture, remediation of soil and water contamination, affordable residential units, reduction of greenhouse gases and urban water runoff volumes. Chair Toerge requested explanation of significant unavoidable impacts and Ms. Hadfield summarized what is being done to mitigate the issues as much as possible. She noted that the three impacts are construction /air quality emissions related to earthwork movement and construction equipment emissions, construction noise and inconsistency with ALUC (Airport Land Use Commission). Commissioner Tucker reported that inconsistency with ALUC can be overridden by the City but it was noted that it doesn't eliminate the significant unavoidable impacts pursuant to CEQA. Ms. Brandt noted that the process of overriding ALUC inconsistency can be done by the City Council and is a two -step process. It is scheduled for the Council Meeting of December 11, 2012. Fernando Sotelo of The Planning Center presented a summary of the impacts and why they cannot be mitigated and efforts to minimize the impacts. Commissioner Tucker questioned the level of significance of the impacts and Mr. Sotelo noted it depends of how much excavation and the number of pieces of equipment being used concurrently. Discussion followed regarding the relationship of significant unavoidable impacts to the size of the project, impacts to residences and businesses, air quality emissions issues and noise. It was noted that an impact may exceed allowable thresholds but that it doesn't necessarily mean that it will harm residents. Discussion followed regarding the ammonia tank associated with the TowerJazz building and Ms. Hadfield addressed existing City policies to address the issue. The TowerJazz facility worked closely with staff and the Fire Department to study and address the issue. Brian Rupp of The Shophoff Group addressed the location of the subject tank, use of ammonia for neutralization of waste water, proximity to the development area, current tank location, and relocation Page 14 of 19 NEWPORT BEACH PLANNING COMMISSION MINUTES 12/06/2012 of the tank and results of an analysis conducted by The Planning Center. He noted that this is a condition of the project and will be completed before any residents move in. In response to an inquiry from Chair Toerge, Mr. Rupp commented on disclosure requirements related to all of the impacts that are significant and unavoidable. Mr. Rupp noted that the conditions of approval address the issues. Discussion followed regarding notification of chemical storage as a mitigation measure Vice Chair Hillgren addressed future traffic issues and the timing for the project. He commented on no vehicular access to Birch Street within the first phasing plan. It was noted that access to Birch Street during Phase 1, will be limited to JAZZ employees and their guests and access through Jamboree Road. Mr. Rupp addressed the requirement for notification of hazardous waste proximity and addressed the requirement for an emergency alarm system. Discussion followed regarding relocation of the ammonia tank, the related mitigation measures and the TPO analysis made, Phase II conditioned upon completion of a traffic study, and addressing traffic impacts to important City intersections. It was noted trip neutrality is based on peak hour trips and related provisions of the General Plan. Chair Toerge opened the public hearing. John Adams, President of the Court House Plaza Association, noted the vision was created by the General Plan but stated that the project is basically a high- density apartment project with a token retail component. He addressed setbacks adjacent to office buildings and indicated that it is not compatible with the neighbors. He stated that there is nothing that guarantees the maximum density and felt that a viable project would include less density. He spoke in opposition to the project and addressed increases in traffic, access points and average daily trips, noting that these are significant issues. He felt there are not enough setbacks, connectivity and noted that the project size can be modified to make the project viable. He addressed the Birch Street easement and noted that the primary access is not Birch Street, but Jamboree Road. He asked that the Planning Commission consider the private easement issues and consider the rights of the existing property owners. Emery Ledger, owner of an adjacent building, expressed concerns regarding shading and shadows and suggested moving the buildings inwards and the parks outward. He addressed the easement issue, addressed the original Master Plan and felt that it was disingenuous to provide proposals using the easement. He spoke against raising the scope of an easement that was previously settled and felt that the proposal will involve the City in litigation as well as Mr. Shophoff, if a compromise is not reached. He stated that the easement does not belong to Mr. Shophoff and reiterated concerns with shadowing and use of the easement. Chair Toerge stated that the proposal has been changed to move the building setback to 100 feet. Mr. Ledger stated that he is pro - development, but not at the expense of adjoining property owners. Commissioner Tucker clarified the revised proposal regarding setbacks and the building heights. Jim Mosher noted that the Airport Land Use consistency is not a noise issue but rather a safety issue and is not an appropriate place to develop a high -rise. He pointed out document formatting issues Page 15 of 19 NEWPORT BEACH PLANNING COMMISSION MINUTES 12/06/2012 and found it strange in making a finding that the project would not result in substantial increase in population or housing. He stated that the EIR omitted references to the Irvine Technology Center (ITC) and referenced a statement that responses to the ITC and other agencies would be submitted separately. Mr. Mosher, stated that he could not find them. Chair Toerge commented to Mr. Mosher that he was not restricted to provide comments only on the EIR. Brian Adams, owner of one of the Courthouse Plaza buildings, referenced a letter submitted on his behalf regarding the proposed project and how it is exceeding the General Plan and the related initial plan, not the revised tentative map. He addressed reduction of open space in order to increase density. He felt that the goal of the project was to maximize density and stated that nothing in the General Plan requires allowing the maximum density. He referenced a letter from Jim Hasty, showing that 90% of the building owners have expressed concerns with shadow, shading, mass and traffic. He suggested increasing building setbacks and reductions in density. John Fitzgibbon, owner - partner of one of the buildings in the Courthouse Plaza, indicated that his firm is pro - development but expressed concerns regarding inconsistencies with the General Plan vision. He felt that issues of concerns could be mitigated and addressed public benefit fees and how they will be used and stated a need for further discussion on the matter. Karen Martin addressed the General Plan and expressed concerns noting that she felt that affordable housing should only be a component of the site. She stated that there are several major companies that could locate in the area and provide jobs. Ms. Martin suggested allowing, within the Development Agreement and the plan, the opportunity to provide for a major corporation. Bruce McDonald, building owner, indicated opposition to the project as currently presented. He addressed leadership in City planning and its goal, site planning flaws in the project, unit density mass and problems with increased traffic and circulation. He addressed double frontage and felt that the project needs additional review and consideration. He referenced a condition of approval submitted as a suggestion for the Commission's review. Mr. McDonald addressed access, parking management plans and stated that the density lacks imagination and suggested collaboration with the existing project that begs for engagement. He suggested addressing double frontage, avoiding sea wall structures, decreasing the density and revising the project. Mr. Shophoff reported that his company has reached out to the Courthouse Plaza owners and hopes to resolve the issue of the easement. He reported that proposed utilities within the Birch Street easement have been removed. He noted this was a corporate campus and that it is time for change. He rejected the recommendations proposed by Mr. McDonald and addressed access and allocation of density by the ICDP (Integrated Conceptual Development Plan). Vice Chair Hillgren inquired regarding future review of design and other project issues. Chair Toerge mentioned the need to focus on the EIR at this time. In response to Vice Chair Hillgren's inquiry, Mr. Shophoff addressed differences in the project from surrounding residential properties in Irvine and incorporation of public and safety services including working with the Santa Ana School District. Mr. Shophoff noted that school district boundaries are set by another agency and is not related to City boundaries. He reported currently negotiating with the Santa Ana School District regarding building a Charter School within the school district boundary and addressed the option of annexing to Newport Page 16 of 19 NEWPORT BEACH PLANNING COMMISSION MINUTES 12/06/2012 Mesa School District and de- annexing from Santa Ana School District. He felt that the proposed retail will serve residents appropriately and addressed the differences between this and other projects and his intention to compete with similar developments. There being no others wishing to address the Commission, Chair Toerge closed the public hearing. Chair Toerge commented on previous efforts for developing the General Plan and stated recalling a discussion about residential in the General Plan noting that it was about meeting the general housing needs assessment requirements. He referenced the Land Use Element of the General Plan, specifically policies 6.15.1, 6.15.4, 6.15.10, 6.15.11 and 6.15.19, as it relates to the Airport Area including the goal and policies and noted that he would like to get to the point where the General Plan is satisfied by this development. He provided background including development of the ICDP and related General Plan provisions and requirements. He felt that the EIR is lacking and noted that many of the property owners in the Courthouse Plaza don't want connectivity. Chair Toerge addressed the phasing plan relative to pedestrian and bicycle circulation and stated it should be completed in Phase One, not later in the development as well as the easement and rights to use it. He felt that currently, the EIR does not address the issue adequately. Commissioner Tucker commented on the ICDP noting that it is not easy to integrate properties that aren't contiguous with each other. He noted that the idea was to build affordable housing to meet State requirements and addressed other affordable housing projects in the City. Regarding the EIR, he addressed physical impacts of the environment and indicated he has not seen where it causes an impact to the environment. He addressed traffic impacts but felt that it is not a significant impact. He addressed parking, the Birch Street easement and felt that it will be valid for traffic purposes. He commented on connectivity and suggested a condition prohibiting a grade differential in the area. Commissioner Kramer felt that the applicant has done a good job in incorporating comments from previous meetings. He expressed concerns regarding the School District issue and felt that language should be added to address the item. A straw vote was taken concerning recommending to the City Council that re- circulation of the EIR is not needed. It resulted in the following: AYES: Brown, Hillgren, Kramer, Myers, and Tucker NOES: Toerge ABSTENTIONS: None ABSENT (Excused): Ameri Ms. Brandt indicated that these are straw votes at this time since there is one resolution for all of the project components. She noted that the resolution encompasses the EIR and that all findings are included within the resolution. Ms. Mulvihill clarified that straw votes will be taken on the re- circulation, the EIR and Statement of Overriding Considerations and that a formal vote will be taken on the resolution. A straw vote was taken regarding finding the EIR is adequate. It resulted in the following: AYES: Brown, Hillgren, Kramer, Myers, and Tucker NOES: Toerge ABSTENTIONS: None ABSENT (Excused): Ameri Page 17 of 19 NEWPORT BEACH PLANNING COMMISSION MINUTES 12/06/2012 Commissioner Tucker commented on the Statement of Overriding Consideration that the payment of fees should be moved as number nine under the list of public benefits. A straw vote was taken regarding the accepting the Statement of Overriding Considerations and resulted as follows: AYES: Brown, Hillgren, Kramer, Myers, and Tucker NOES: Toerge ABSTENTIONS: None ABSENT (Excused): Amen Ms. Brandt clarified that the resolution recommends certification of the EIR and approval of the project adding that there is no resolution that only pertains to the recertification of the EIR. Motion made by Commissioner Kramer and seconded by Commissioner Tucker to continue this item until December 20, 2012. Commissioner Tucker indicated that he would not be available at 6:30 p.m. on the 20th, but would be available before that time. Commissioner Kramer indicated that he will not be available on January 3, 2013. Discussion followed regarding an appropriate time in which to meet to consider the matter and it was proposed to start at 1:30 p.m. The motion was amended to include the start of the meeting at 1:30 p.m. Chair Toerge re- opened the public hearing. There was no response and Chair Toerge closed the public hearing. Substitute Motion made by Commissioner Tucker and seconded by Commissioner Kramer and carried 6 — 0, to continue the matter to December 20, 2012 at 1:30 p.m. AYES: Brown, Hillgren, Kramer, Myers, Toerge, and Tucker NOES: None ABSTENTIONS: None ABSENT (Excused): Ameri VIII. STAFF AND COMMISSIONER ITEMS ITEM NO. 6 MOTION FOR RECONSIDERATION - None ITEM NO. 7 COMMUNITY DEVELOPMENT DIRECTOR'S REPORT Ms. Brandt asked whether there will be a quorum on January 3, 2013 since some of the Commission Members indicated they would not be available. ITEM NO. 8 ANNOUNCEMENTS ON MATTERS THAT THE PLANNING COMMISSION MEMBERS WOULD LIKE PLACED ON A FUTURE AGENDA FOR DISCUSSION, ACTION, OR REPORT - None Page 18 of 19 NEWPORT BEACH PLANNING COMMISSION MINUTES ITEM NO. 9 REQUESTS FOR EXCUSED ABSENCES 12/06/2012 Commissioners Tucker and Kramer indicated that they will not be able to attend the January 3, 2013 meeting. IX. ADJOURNMENT There being no further business to come before the Planning Commission, the meeting was adjourned at 11:04 p.m. The agenda for the Regular Meeting was posted on December 14, 2012, at 3:15 p.m. on the City Hall Bulletin Board located outside of the City of Newport Beach Administration Building. Micha ge, Chairman Kimberly Brandt, Officio Secretary Page 19 of 19