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HomeMy WebLinkAbout11/19/2009CITY OF NEWPORT BEACH Planning Commission Minutes November 19, 2009 Regular Meeting - 6:30 p.m. ROLL CALL Commissioners Eaton, Unsworth, Hawkins, Peotter, McDaniel, Toerge, and Hillgren - all present. STAFF PRESENT: David Lepo, Planning Director Patrick Alford, Planning Manager Michael Torres, Deputy City Attorney Tony Brine, City Traffic Engineer James Campbell, Principal Planner Makana Nova, Assistant Planner Gaylene Olson, Department Assistant PUBLIC COMMENTS: PUBLIC COMMENTS None POSTING OF THE AGENDA: POSTING OF THE AGENDA The Planning Commission Agenda was posted on November 13, 2009. HEARING ITEMS ITEM NO. 1 SUBJECT: MINUTES of the regular meeting of November 5, 2009. Approved Motion was made by Commissioner Peotter and seconded by Commissioner Hillgren to approve the minutes as written. Ayes: Eaton, Unsworth, Hawkins, Peotter, McDaniel, Toerge, and Hillgren - Noes: None I Abstain: None SUBJECT: Church of Jesus Christ of Latter Day Saints (PA2008 -215) ITEM NO. 2 2300 Bonita Canyon Drive PA2008 -215 Approved The application consists of an amendment (Amendment No. 1) to Use Permit No. 2001 -036 and Site Plan Review No. SR2009 -001 to allow the construction of a rectory with 1,825 square feet of living space and a 491 - square -foot, attached two -car garage at the southeast corner of the subject property. The proposed NEWPORT BEACH PLANNING COMMISSION MINUTES 11/19/2009 rectory is an accessory use to an existing place of religious assembly. The project includes the establishment of a 40 -foot fuel modification zone adjacent to the structure. Makana Nova, Planning Assistant, gave a brief overview of the staff report and a brief presentation showing the proposed location of the rectory. Ms. Nova noted the following comments on the MND: The Department of Transportation — required an encroachment permit if this is done in a right -of -way. The Department of Fish and Game — concerns for vegetation surveys. Ms. Nova stated that Mitigation Measure BR.2 was revised to incorporate focus surveys to identify rare, threatened, or endangered plants in accordance with United States Fish and Wildlife Service guidelines. She noted the biological consultant was in the audience to respond to questions. Ms. Nova stressed that the rectory will be an accessory use to the existing temple and similar to a single - family residence. Commissioner Unsworth asked the following: .In the revised Mitigation Monitoring and Reporting Plan (MMRP) is there a change that vegetation removal during avian breeding season cannot take place. *If there is vegetation removal, can it take place between February 15 and September 15? • Who determines that the vegetation must be removed? Ms. Nova answered: .The revised MMRP is requiring a survey or study for plants in addition to the bird surveys. •A survey conducted by certified biologists that identified species would be required in order for vegetation removal to take place during February 15 and September 15. .The Fire Department determines what vegetation must be removed to comply with the fuel modification zone. Commissioner Eaton asked if this was similar to the Hyatt project where the fuel modification and ESA overlapped. Ms. Nova replied that it was very similar in that we are requiring the planting of native species, wherever possible, within the fuel modification zone. In addition, it is a slope and hillside - stabilizing species are being required as much as possible. The Fire Department is willing to work with the fuel biologist on these plantings. Commissioner Peotter asked Ms. Nova to clarify Condition No. 24 as follows: •Fire sprinkler systems in a residential setting are normally not Page 2 of 12 NEWPORT BEACH PLANNING COMMISSION MINUTES 11119/2009 Is the monitoring requirement because this project is next to a fuel modification zone? *The sprinkler requirement is already part of code since this is a fuel modification zone. Commissioner Peotter stated he would like Condition No. 24 deleted or append this condition to state we are not intending to make it stricter than what code requires. Ms. Nova stated that the property is adjacent to a high fire hazard area, which triggered the requirement for the sprinklers; however, this is an accessory use to the church and the building permit fees are charged at a commercial rate and is not considered a single - family residence. Mr. Lepo stated he would not recommend the deletion or changes to Condition No. 24 until he checked further with the Fire Department. Chairperson Hawkins asked the applicant to comment on this issue. David Hohmann, applicant and architect, noted the requirement for the sprinkler system seems to be stricter than what is normally required. However, if the Fire Department says it needs to be monitored they will be happy to do so. The house is pretty fire proof with the tile roof, stucco outside walls, and fully sprinkler irrigation on the slope, etc. Commissioner Eaton asked the staff and Mr. Hohmann why Condition No. 29 required a Health Department approval. Mr. Hohmann stated he had no idea why there would be a need for a health department approval. Planning Manager Patrick Alford noted he had received some feedback that the facility could be use for functions other than residential use; therefore, the need for additional requirements. Chairperson Hawkins asked Mr. Hohmann to clarify the use of the rectory. Mr. Hohmann stated this was a modest two bedroom, two -bath residence with a very small kitchen. The square footage of the kitchen is roughly 250 feet. Ms. Nova clarified this is not considered a residential use but is an accessory use to the church. Under Section 20.91A.060 of the Zoning Code, there is a requirement for findings for residential uses in planned community districts. Staff did not feel these findings would be required as this is an accessory use to the church. If the Building Department does not find the Health Department requirement needed, we can revise Condition No. 29. Chairperson Hawkins asked if staff had suggested language on the revision. After some discussion, it was suggested Condition No. 29 say, approval from the Oranqe County Health Department shall be obtained if required by any law Page 3 of 12 NEWPORT BEACH PLANNING COMMISSION MINUTES 11/19/2009 prior to the issuance of a building permit. Public comment was opened. Public comment was closed. Chairperson Hawkins asked the applicant if he had reviewed all the conditions and the resolution, and if they are acceptable. Mr. Hohmann answered yes. Motion was made by Commissioner Peotter and seconded by Commissioner Toerge to adopt a resolution adopting Mitigated Negative Declaration No. ND2009 -001 and approving Amendment No. 1 to Use Permit No. UP2001 -036 and Site Plan Review No. SR2009 -001 with the following change s to the revised conditions of approval: Add to Conditions No. 24 and No. 29 — as required by code. Chairperson Hawkins asked where this change should be added in Condition No. 24, as there are three sentences in the condition. Also, as required by code is not a complete sentence. Commissioner Peotter said add the following as a fourth sentence to Condition No. 24 — This condition shall apply as required by code. Keep Condition No. 29 as originally worded and add as required by code to the end of the sentence. Second to the motion, Commissioner Toerge, agreed to the edit. Ayes: Eaton, Unsworth, Hawkins, Peotter, McDaniel, Toerge, and Hillgren Noes: None Absent: None SUBJECT: Megonigal Residence (PA2007 -133) ITEM NO. 3 2333 Pacific Drive PA2007 -133 The City of Newport Beach determined that the proposed project may have a Approved significant effect on the environment on Land Use, Aesthetics, and Biological Resources. The City determined that an EIR would be required to more full evaluate potential adverse environmental impacts that may result from development of the project. All other environmental effects were determined to be less than significant (with mitigation) or have no impact and were addressed in the Initial Study prepared for the project. As a result, the DEIR has been prepared in accordance with the California Environmental Quality Act of 1970 (CEQA), as amended (Public Resources Code Section 21000 et seq.), and the State CEQA Guidelines for Implementation of CEQA (California Code of Regulations, Title 14, Section 15000 et seq.). This DEIR also complies with the City of Newport Beach' procedures for implementation of CEQA. Page 4 of 12 NEWPORT BEACH PLANNING COMMISSION MINUTES 11/19/2009 James Campbell, Principal Planner, gave an overview of the staff report. Mr. Campbell wanted to clarify that this project once included a variance to height and that was eliminated with the revisions of the project before it went to hearing. There is no variance to height associated with this project. In addition, there is a 5 -foot front yard setback, not a 20 -foot front yard setback for this project site. The only deviation from code that is being proposed by the applicant is the height of some planter walls, and a water feature in the front yard. Kim Megonigal, applicant, gave an overview of the history of this project, which originated in 2007. He was requested to get an Environmental Impact Report (EIR), which his attorneys did not believe was necessary, but everyone involved told him by getting the EIR it would help the project through the process. He paid the $35,000 for the EIR, which took a long period to complete. When the EIR was presented to staff last month, he was informed that there had been a problem with the visual simulations provided for the EIR, thus postponing the hearing another month in order to correct the visual simulation issue. He then read a letter from a Mr. Cook to Chairperson Hawkins, in favor of the project, which is now part of the record. Mr. David Olson, architect, showed a visual simulation pointing out improvements to the view since the last time the Commissioner saw the project. He also address his concerns over the following conditions of approval in the EIR: • Limiting of time for grading operations; grading cannot be done during the summer months. • Requiring monitoring of the site by an archeologist and a Native American Indian. Mr. Olson feels these are onerous burdens not required of other properties currently under construction on Pacific Avenue. The grading operations are a concern. They do not want to grade during the rainy months, and if the summer months are removed this leaves very little time to do grading operations. They would like these conditions removed. Mr. Campbell answered that staff has provided a revised resolution to the Commission and public, that incorporated the following mitigation measures from the EIR into the resolution: *Mitigation Measure No. 1 or Condition No. 34, which talks about a qualified archaeological /paleontological monitor to be retained for grading. *Mitigation Measure No. 7 or Condition No. 19d, dirt hauling shall not be scheduled during weekday peak hour traffic periods or during the summer season. Chairperson Hawkins asked the applicant to take time to review the revised conditions and will be called back to address any of his questions. Page 5 of 12 NEWPORT BEACH PLANNING COMMISSION MINUTES 11/19/2009 Mr. Campbell noted that Keeton Kreitzer, the environmental consultant who authored the EIR, was present and ready to take any questions of the Commissioners. Chairperson Hawkins asked if the City contracted with another firm, BonTerra Consulting, who review the biological report. Keeton Kreitzer answered that the applicant brought the Chambers Group, the original biologists, on board. The City had a third party, BonTerra Consulting, review the biological report and some issues were raised. The Chambers Group was sent back out to the project to confirm findings based on the BonTerra Consulting report. The Chambers Group report stands as being accurate. Chairperson Hawkins asked Mr. Kreitzer to address the visual simulation issue. Mr. Kreitzer noted the following: *The visual simulations used were previously prepared for another project. *There was a request for vegetation clearance, which occurred between the time the visual simulations were originally prepared late last year and when the visual simulations were used in the draft EIR .The visual simulation issue was brought to the consultant's attention during the course of the public review period. *Because baseline conditions had changed, reflecting a different view or perspective from Begonia Park, they had the simulation recreated. *The recreated simulation still showed an inaccurate size of the house. *They revised the simulation to reflect what the architect prepared relative to the baseline conditions, which now shows a more open view with the pruning or trimming of the vegetation. Commissioner Unsworth asked if the visual simulations included in the staff report were the new set, considered an accurate depiction of the view with and without the proposed residence, and to scale. Mr. Kreitzer answered that was correct. Chairperson Hawkins asked if the DER needed to be re- circulated. Mr. Kreitzer stated he had discussed this with staff. Mr. Kreitzer's opinion based on Section 15088.5 of the State CEQA Guidelines, which specif discusses recirculation when there is new information. Examples u� recirculation is required are: •A significant new impact that was not previously disclosed or discussed; which there wasn't. •The severity of an impact that would be substantially greater and would require additional mitigation; which has not been incorporated. •Feasible alternative or mitigation measures that are required that are Page 6 of 12 NEWPORT BEACH PLANNING COMMISSION MINUTES 11/19/2009 substantially different from those were evaluated in the draft EIR; which there wasn't. *The draft EIR was inadequate or conclusory that would have prevented the public from commenting on its adequacy. The new information was not substantial; in fact, the error was pointed out in comments. The public had the opportunity and were able to comment on something that was able to be re -done. It was his opinion that recirculation was not need because the view impact, even with the changed condition, was less then significant. Chairperson Hawkins asked if the representative from SoftMirage, who did the visual simulations, was present. Mr. Campbell answered no, but he could address specific questions on the simulations and could show the simulations on the overhead, if the Commissioners desired. Commissioners stated they would like to see the simulations on the overhead. Mr. Campbell pointed out the following: • A before and after view showing the vegetation before and after being removed. • A view with the proposed residence. Mr. Campbell stated that the consideration of the Commissioners to recommend the project to City Council would be based on the significant impact of the view. Staff and Mr. Kreitzer's position is that it is not a significant impact to the view. Commissioner Hillgren asked if the visual they were looking at was taken from the lower bench and depicts the worst case. Mr. Campbell answered yes. Commissioner Eaton asked the following *This was a referral from the City Council. The Commissioners are only recommending to City Council, and Council will have the ultimate decision. *Could Council chose one of the project alternatives and not re- circulate the EIR, even if they find there is a significant impact? •Referring to Condition 19d, is the grading project substantial enough that it could not be done during the summer and would there be a significant impact if it were done during the summer. Mr. Campbell answered yes to Mr. Eaton's first question. Deputy City Attorney Michael Torres answered if the Council found there was a significant impact, it would be the discretion of the Council to re- circulate or Page 7 of 12 NEWPORT BEACH PLANNING COMMISSION MINUTES 11/19/2009 go with an alternative and not re- circulate. It is ultimately the Council's decision. Mr. Campbell answered the question regarding Condition 19d: *The estimate for the grading is 630 yards and may only take several weeks to complete. *It is a very small amount compared to the larger construction projects with 20,000 to 30,000 yards. *These larger projects are typical in areas that are a little more sensitive for coastal access and why we use this condition. *This project site is a little less sensitive. •We may have overestimated the impact and might be able to loosen up the requirement. Public comment was opened The following people spoke in opposition of the project and had similar comments regarding the impacted view: Ken Jaggers — submitted a supplement to his other letter into record and pointed out his error showing 45 percent instead of 35 percent obscured view. Mr. Jaggers pointed out there was a variance for the 20 -foot setback granted in 1942, and a 5 -foot setback would be unseemly for the neighborhood and a traffic danger. He asked that the Commissioners consider the danger involved and if it is prudent to proceed. Additionally, this is a red curb and, to his knowledge, the City has been denying permits to others on Begonia Avenue to make any cuts in their curb for garages. Walter Cruttenden — pointed out the percentage of view loss depends on if you are sitting on a park bench, walking, or driving down the street. It can vary from 35 percent to 100 percent and asked the Commissioners to consider this before approving the project. Patricia Ricks — submitted a letter for record and pointed out various references in the City's General Plan regarding the protection of public views. Clayton Gorrie — submitted a new picture from a different view; concerned there needs to be a re- examination. Gary Kerns — stated 35 percent view loss is significant; strongly urged the Commission to adhere the General Plan, have Mr. Megonigal enjoy his property rights to build his home and not obstruct a significant portion of the view. Commissioner Hillgren asked Mr. Kerns what he considered was insignificant and what is a significant portion of property right removal in terms of ability to build someone's home. Mr. Kerns said he could only address theAefinition of significant as far as statistical analysis and 10 percent or less would not be significant, any more Page 8 of 12 NEWPORT BEACH PLANNING COMMISSION MINUTES 11/19/2009 would be considered significant. Lucy Souers — submitted a letter for record and stated what impact the loss of view would be for her and her husband. Karen Fleming — feels the driveway and garage could be built off Bayside, below the project, and save the view. Elizabeth De Lameta — gave some historic background on the site. Dan Splitter — co- chairman of Friends of Begonia Park, summarized his objections to the proposed project. Mark Simon — urges the Commission to find balance between the applicant's right to build and the rights of the many citizens to enjoy the public view. Asks the Commission to recommend that Council accept the alternate design scenario from Page 6, Paragraph 4 of the October staff report; if this alternate design is not recommended, then urges Commission to recommend Council accept access from Bayside Drive, as it is not a hazard per the City accident reports. Would like item No. 7 on Page 16 of the resolution be modified. Kelly Nape — agreed with Mr. Simon regarding the garage. The following people spoke in support of the project: Laura Catalino — spoke briefly in support. Damien Jordan — he lives adjacent and below the proposed project; he and his wife feel this project will actually improve the hillside above his property. Chairperson Hawkins asked Mr. Campbell if he had any responses to these public comments. Mr. Campbell noted he wanted to add four new letters he just received, all opposing the project and with similar comments on the view impact. Commissioner Peotter requested Mr. Campbell to address the Bayside Drive issue. Mr. Campbell noted that in the EIR they identified the following alternatives: One alternative would take access from Bayside Drive, below the project, and eliminate the garage at the upper level. o This is a difficult scenario due to the significant grade elevation changes. o An extra driveway down below was considered to be a hazardous condition or potential hazardous condition by Public Works. The other alternative discussed was to have a one -car carport in -lieu of a garage or no carport at all; in essence park on the roof. Page 9 of 12 NEWPORT BEACH PLANNING COMMISSION MINUTES 11/19/2009 City Traffic Engineer Tony Brine noted that having access from Bayside Drive is an issue of site distance and the location, as it is now, of the curves does not meet the City site distance standards. There is another option to access the property and Public Works could not support the driveway on Bayside Drive because it is non - standard site distance. Chairperson Hawkins noted there was also the factor that this driveway would abut against the other driveway on Bayside Drive. Commissioner McDaniel noted the following: *Mr. Megonigal had concerns about access from Bayside Drive and that he wanted to have the Pacific Drive address. *Is there any reason why he could not have the Pacific Drive address and have access from another location? *It could possibly save the view. Mr. Campbell stated it could be possible, but may not be the most advisable, and noted the following: *Addressing is done in conjunction with the Fire Department to insure adequate emergency response. •A Pacific Drive address could pose a problem if any emergency response team arrived at the upper location and found out that access to the location was actually below, off Bayside Drive. Mr. Campbell wanted to clarify a statement made by one of the public speakers, about the General Plan being voter approved. The portion of the General Plan that was voter approved pertained to the increases in density, and intensity, and traffic citywide. The actual text of the document, the policies that are contained therein, was something that the City Council adopted; therefore, the voters did not approve the actual policies that were addressed and looked at this evening. Chairperson Hawkins asked Mr. Olson if he had an opportunity to review the revised conditions and if he had any concerns. Mr. Olson said after reviewing the revisions, he had the same concerns regarding the term for the period for grading, as referred to in Condition No. 19d. Chairperson Hawkins asked how long the grading would take. Mr. Megonigal stated his contractor, who was in the audience, said it would take one week. Mr. Brine did not see a concern with the limited amount of truck traffic during the summer. Commissioner Toerge recommended that Condition No. 19d be change to read, Dirt hauling shall not be scheduled during weekday peak hour traffic Page 10 of 12 NEWPORT BEACH PLANNING COMMISSION MINUTES 11/19/2009 periods. Chairperson Hawkins asked if the mitigation measures and modification to Condition No. 19d was acceptable to Mr. Olson. Mr. Olson answered yes. Public comment was closed. Commissioner Eaton asked the applicant what his concerns would be with the rooftop - parking alternative. Mr. Olson noted the following: *The rooftop parking violates the City requirement to have two - enclosed garage spaces. It would devalue the property by not having an enclosed parking space. •Access to the house would be limited. There needs to be some kind of structure to walk through the door, enter the house, and go down. Commissioner Toerge addressed his concerns on some of the public comments made tonight and how difficult it is protect views, where do you draw the line, and you cannot protect every view across the City. There is a balance but not enough to restrict someone from building a home. Motion was made by Commissioner Toerge and seconded by Commissioner Peotter to adopt a resolution recommending Certification of the Draft Environmental Impact Report and approval of Modification Permit No. MD2007 -080 to the City Council with the following modification to the Condition No. 19d that it reads as follows: Dirt hauling shall not be scheduled during weekday peak hour traffic periods. Commissioner Hillgren recommended to strike Condition No. 34, which talks about a qualified archaeological /paleontological monitor to be retained for grading. Commissioner Toerge amended his motion to delete Condition No. 34 and seconded by Commissioner Peotter. Mr. Lepo said staff would accept the deletion. Commissioner McDaniel said he would vote for the motion, but felt the rooftop alternative would resolve the view impact issue. Chairperson Hawkins asked staff if a variance would be required if the Commission required only the service and to delete the structure of the garage. Mr. Lepo answered it would require a variance from the code requirement and probably go to another level of approval as far as coastal development permit. Page 11 of 12 NEWPORT BEACH PLANNING COMMISSION MINUTES 11/19/2009 Commissioner Eaton asked Mr. Lepo if a variance was required would it have to go to the Coastal Commission. Mr. Lepo answered it could likely go to the Coastal Commission for the issuance of a coastal development permit. Ayes: Eaton, Unsworth, Hawkins, Peotter, McDaniel, Toerge, and Hillgren Noes: None Excused: None NEW BUSINESS: City Council Follow -up — Mr. Alford noted Council denied the extension of the hours on the Port Restaurant appeal, approved live entertainment with a number of restrictions, and lunch meal service on weekends. Council approved the North Newport Center Planned Community Amendment. Planning Commission reports — Commissioner Eaton noted that the General Plan Update Committee met on November 17 and reviewed the issue on submerge lands. The next meeting is scheduled for December 16. Chairperson Hawkins noted that at the General Plan Update Committee the Mayor announced the inclusionary housing ordinance will not be within the jurisdiction of this body or within the zoning code but will be in the subdivision code. The inclusionary housing ordinance will have its first reading at the Council meeting on November 24. Chairperson Hawkins reported that both EDC Executive and EDC Full Committee meetings for November were cancelled. Announcements on matters that Commission members would like placed on a future agenda for discussion, action, or report — None Requests for excused absences — None. Commissioners and staff discussed future meetings. ADJOURNMENT: 9:00 p.m. CHARLES UNSWORTH, SECRETARY CITY OF NEWPORT BEACH PLANNING COMMISSION Page 12 of 12