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HomeMy WebLinkAbout1.0 - Draft Minutes_11-03-2016 NEWPORT BEACH PLANNING COMMISSION AGENDA CITY COUNCIL CHAMBERS— 100 CIVIC CENTER DRIVE THURSDAY, NOVEMBER 3, 2016 REGULAR MEETING—6:30 P.M. I. CALL TO ORDER-The meeting was called to order at 6:30 p.m. II. PLEDGE OF ALLEGIANCE—Chair Kramer III. ROLL CALL PRESENT: Chair Kory Kramer, Secretary Peter Zak, Commissioner Bradley Hillgren, Commissioner Ray Lawler and Commissioner Erik Weigand ABSENT: Vice Chair Peter Koetting, Commissioner Bill Dunlap Staff Present: Deputy Director Brenda Wisneski; Assistant City Attorney Michael Torres; City Traffic Engineer Tony Brine; Police Civilian Investigator Wendy Joe; Senior Code Enforcement Officer Cassie Palmer; Principal Planner Jim Campbell; and Administrative Support Specialist Jennifer Biddle IV. PUBLIC COMMENTS None. V. REQUEST FOR CONTINUANCES Deputy Director Wisneski reported the applicant requested Item Number 4 be tabled and re-noticed for a future date. Motion made by Chair Kramer and seconded by Commissioner Hillgren to continue Item Number 4. AYES: Kramer, Zak, Hillgren, Lawler,Weigand NOES: None ABSTAIN: None ABSENT: Koetting, Dunlap VI. CONSENT ITEMS ITEM NO. 1 MINUTES OF OCTOBER 20, 2016 Recommended Action: Approve and file Chair Kramer added an amendment regarding CEQA impacts to his written amendments. Motion made by Commissioner Lawler and seconded by Commissioner Hillgren to approve and file the minutes of the Planning Commission meeting of October 20, 2016,as amended. AYES: Kramer, Zak, Hillgren, Lawler,Weigand NOES: None ABSTAIN: None ABSENT: Koetting, Dunlap VII. PUBLIC HEARING ITEMS ITEM NO.2 GELSON'S SUPERMARKET CONDITIONAL USE PERMIT (PA2015-214) Site Location: 1660 San Miguel Drive Principal Planner Campbell reported the Planning Commission first reviewed the application on September 22, 2016, at which time it was tabled for the applicant to provide additional information. A small restaurant and outdoor patio would be added to the front of the store in the area of the existing coffee bar 1 of 10 seating. The applicant has provided additional details and drawings to show the proposed design. The use would operate with a Type 41 Alcoholic Beverage Control license. The hours of operation would be 11:00 a.m. to 9:00 p.m. The application has been amended to include off-site employee parking for 40 parking spaces at a nearby church on Pacific View Drive. A parking waiver would apply to Sunday when parking at the church would not be available. The patio would encompass approximately 750 square feet and could be accessed through the store. Staff provided findings for formalizing of the off-site parking arrangement, which has been working effectively since late 1999. Staff felt all the findings in the Municipal Code could be met to approve a conditional use permit for the small restaurant including off-site parking and a parking waiver for Sunday. Chair Kramer and Secretary Zak, Hillgren, and Lawler advised that they had not had any ex parte communications with the applicant. Commissioner Weigand indicated he had had email communications. Brett Engstrom, on behalf of Gelson's Market, believed the applicant had provided all the information the Commission sought. The applicant requested a conditional use permit for Type 41 and Type 86 licenses, approval of off-site parking, and a parking waiver for Sunday. Chuck Mayhew, on behalf of Gelson's Market, indicated project plans followed the Irvine Company's scheme for the center. The applicant proposed retention of existing landscaping. Paulette Alexander, on behalf of the Irvine Company, had worked with the applicant on conceptual plans and would work closely with Gelson's on the final design. In response to Commissioner Weigand's question, Ms. Alexander stated there had been no parking issues with the existing tenants. She did not believe there would be an increase in customers to cause issues in the future. Chair Kramer opened and closed the public hearing with no comments made. Commissioner Hillgren appreciated the applicant submitting a comprehensive application. Motion made by Commissioner Hillgren and seconded by Secretary Zak to adopt a Resolution to approve Conditional Use Permit UP2015-048. AYES: Kramer, Zak, Hillgren, Lawler,Weigand NOES: None ABSTAIN: None ABSENT: Koetting, Dunlap ITEM NO.3 THE VILLAGE INN OUTDOOR DINING USE PERMIT (PA2015-016) Site Location: 123 and 127 Marine Avenue Deputy Director Wisneski reported the Commission first considered the application in December 2015. The Village Inn was located in the Mixed-Use zone of Balboa Island. A residential unit was located above the restaurant use. Since December 2015, staff had eliminated the need for a land use amendment. The Hearing Officer determined the encroachment should be abated within ten years of the Commission's action. At the end of ten years, the encroachment could be removed, the abatement period could be extended, or a land use change could occur. A noise analysis was completed which identified measures to attenuate noise from live entertainment and determined that noise could be mitigated to comply with the noise ordinance. A second noise analysis regarding noise from indoor and outdoor diners concluded there were no impacts. Bike racks would be relocated from the original proposed location. The applicant requested a conditional use permit for outdoor dining along Marine Avenue. The outdoor dining area would be approximately 200 square feet, contain 16 seats, and operate from 7:00 a.m.to 9:00 p.m., but would close at 10:00 p.m. on Fridays and Saturdays between Memorial Day and Labor Day, federal holidays and community events. The outdoor dining area would close when live entertainment was offered. Because the outdoor dining area was located in the public right-of-way, it would be subject to City Council approval. The Commission should determine whether the use was compatible with the neighborhood. Deputy Director Wisneski reviewed details of the site plans and elevations. Staff was considering locating bike corrals along Marine Avenue adjacent to existing crosswalks. Conditions of approval required the applicant to contribute $12,000 towards installation and maintenance of the bike corrals and to 2of10 install bike corrals prior to issuance of building permits for the outdoor dining area. Staff felt it was important to maintain the current bike racks until the new bike corrals were installed. Approval of the project was conditioned upon the Council providing direction to staff to pursue a bike corral option. Deputy Director Wisneski summarized prior use permits issued, noise complaints, notices of violation, and critical conditions of approval. Staff recommended approval of the use permit to establish outdoor dining. Policy 5.3.4 encouraged outdoor dining in this type of environment in that it activated sidewalks and outdoor spaces. In response to Commissioner Lawler's inquiries, Deputy Director Wisneski advised that a building permit for the project could not be issued until the new bike corrals were installed. Staff did not support Ms. McDermott's proposed amendment to include a timeframe in the condition of approval. In response to Secretary Zak's questions, Deputy Director Wisneski reported the definitions of restaurant and bar were based on the type of license. A Type 47 license indicated a restaurant with a bona fide eating establishment. The applicant could install doors and windows that opened with no outdoor seating area by obtaining a building permit. A use permit was triggered only by a change in operation. In response to Chair Kramer's request for information regarding noise complaints, Police Civilian Investigator Joe indicated the Police Department received two calls for service in 2016 from unknown callers. When patrol arrived on the scene, noise levels were acceptable. In 2015, the Police Department received four excessive noise complaints in three nights, all from anonymous callers. Patrol confirmed excessive noise on two of those occasions. Patrol conducted eight self-initiated visits; officers reported excessive noise on one of those visits. When an officer determined noise levels were excessive, he would tell the business to quiet down. Usually the noise would decrease, and the officer would not issue a notice of violation. This was the typical response to noise complaints when the Police Department and a business had a good working relationship. The Police Department had a good relationship with the Village Inn. There was no evidence the Village Inn had an over- service problem. In the past 12 months, there was no evidence that any police contact because of drunk in public resulted from the Village Inn. In response to Chair Kramer's inquiries, Senior Code Enforcement Officer Palmer explained that spot checks of businesses occurred once a month and these spot checks were not in response to complaints. Code Enforcement Officers had not found any noise violations. A live entertainment permit had specific requirements to control noise from bands. Code Enforcement Officers always found the Village Inn in compliance with ordinances. Officers carried and used sound meters to determine whether noise levels were in compliance. Code Enforcement Officers had not issued any notices of violation of the noise ordinance to the Village Inn. The public called either the Police Department or Code Enforcement with noise complaints. If complaints were made outside business hours, the Police Department would respond. When Code Enforcement noticed an influx of complaints for the same business, they would ask patrol to go by the business more often. If needed, Code Enforcement Officers would follow-up with the business during regular business hours. Other complaints about the Village Inn concerned property maintenance, but officers found nothing to warrant issuing a notice of violation. In response to Chair Kramer's question regarding correspondence of a legal nature, Assistant City Attorney Torres noted one letter received from an attorney representing some local residents. He had reviewed it with Community Development Director Brandt and Deputy Director Wisneski. They did not believe the letter raised any issues that caused concerns from a legal perspective. Chair Kramer reported he had met with the applicant on-site and had several communications with the applicant's consultant. Secretary Zak reported he had had several conversations with the applicant's consultant, had visited the site, and spoken on the phone with residents. Commissioner Lawler reported he had spoken with the applicant's consultant. Commissioner Hillgren reported he had met with the applicant's consultant on-site and had telephone conversations. Commissioner Weigand reported he visited the site with the applicant's consultant. 3of10 Dan Miller, applicant, remarked that the Village Inn was a link between the traditional and modern impacts of Balboa Island and Newport Beach and a place where people gathered to represent the community. His team prepared a thorough, well-considered, and inclusive picture of his intentions for outdoor dining including the limitations to which he agreed. In response to noise complaints, he obtained professional acoustic data and created solutions that would positively impact noise. He had worked with the City to provide solutions that improved the neighbors' perceived impressions of bike racks. Surveys indicated approximately 20 percent of bike rack users entered the Village Inn. The Village Inn's business model was shifting to facilitate more daytime dining. In order to thrive,the Village Inn needed to align with both local residents' and tourists' expectations. He shared his personal and business background. The Village Inn was a part of the infrastructure of the community, and its presence increased both property values and community values. The Village Inn was a restaurant with cocktail service that provided warmth, substance, and a meeting place. Approval of the application was in direct correlation to the requests and needs of the community. He supported staffs recommendations, findings, and conditions of approval. Carol McDermott, consultant for the applicant, felt the history of the site was an important part of the discussion and related a brief history of the site. The applicant was working to add to the island ambience in a mixed-use zone. Balboa Island Improvement Association (BIIA) and the Merchants Association hosted events along the 100 block of Marine Avenue and sponsored parties on the site. The applicant had changed the menu from bar food to fine dining and increased food sales. The applicant wanted to attenuate noise more effectively, further the fine dining experience, continue to provide a community gathering place, remain consistent with licenses and permits, and to commit to additional conditions of approval. The outdoor dining plan was 16 seats in the location of the existing bike racks. The applicant worked with the City and contacted bike-friendly cities to find a good, alternative location for bike racks. The General Plan recommended outdoor seating, and the City Council had approved a number of locations for outdoor dining within the public right-of-way and waived the Policy L-21 requirements. The applicant proposed new windows and a Plexiglas barrier around the southern edge of the outdoor dining area to attenuate noise. Sidewalks would remain at a minimum width of 6 feet. The wrought iron fencing was required by the ABC license and would provide some safety. The majority of bike rack users were shoppers in the merchant area. Proposed locations for bike corrals were in the 200 and 300 blocks of Marine Avenue. The proposed bike corrals would accommodate 44 bikes, and the $12,000 fee would more than replace the existing bike racks. The Merchants Association unanimously supported the bike corrals. Ms. McDermott explained sound contours in relation to noise levels. The ambient noise level resulted from vehicle and pedestrian traffic and aircraft and was determined to be greater than the daytime threshold contained in the noise ordinance. Noise modeling indicated noise from interior and exterior patrons would be below the noise limit and the existing ambient noise level. Improvements included window upgrades and seals for doors. The applicant would instruct entertainers to delay performances until outdoor diners could be brought inside. No amplified televisions or paging systems were allowed in the outdoor area. With noise attenuation, noise levels would be approximately 45 dB at the property line of 123 Marine during the nighttime,thereby complying with the noise ordinance and the entertainment permit. The applicant had modified its entertainment style in response to residents' requests. The applicant had installed new windows facing 123 Marine, applied noise-attenuating paint, installed acoustical panels, hung curtains, and removed window controls in an effort to reduce noise. Noise complaints had been made, but officers found no noise violations. The applicant would agree to no truck deliveries prior to 6:00 a.m. and after 9:00 p.m. Support for the project was wide spread. She requested the Commission approve the use permit and add language regarding the applicant's contribution for bike corrals and a time period for installing bike corrals. In response to Commissioner Hillgren's inquiries regarding landscaping, Ms. McDermott advised that she had not prepared plans for landscaping, but she would submit them for staff or Commission approval. The area of enhanced landscaping was located at the comer. The existing vertical element and ground cover would be enhanced. There was no room to place planters in the outdoor dining area. In response to Secretary Zak's questions, Ms. McDermott explained that the number of doors was needed to serve the outdoor tables. The space was too small to access all tables by only one door. The doors would give the exterior a finished look and provide noise attenuation, which would improve the situation. The applicant wanted the outdoor dining area to make it readily apparent the building was a restaurant, to enhance the island feeling of being outdoors, to increase food sales, and to reduce bar service. Interior acoustical panels were installed around the entire building. The acoustical consultant was not present, but he had submitted an updated report. Measurement of patron noise was based on modeling rather than empirical evidence. 4of10 Commissioner Lawler stated the Commission's role was to review the noise study and determine whether it was factual. Secretary Zak noted adjacent residences could be impacted by noise. Chair Kramer advised that the matter before the Commission was the amendment to the conditional use permit to allow a 200-square-foot outdoor dining area at the front of the restaurant. The Commission was concerned with land use rather than Code Enforcement. Chair Kramer opened the public hearing. Michele Caston supported outdoor dining at the Village Inn. Corona del Mar was more beautiful with the addition of outdoor dining. The wide sidewalk could accommodate a few tables. Outdoor dining was allowed at the site in the 1930s and 1940s. Changes to the doors and windows would reduce the noise. Allowing a few outdoor tables with restrictions was reasonable. Michael Lawler looked forward to outdoor dining at the Village Inn. Conditions of approval were well thought out. He supported the project and urged the Commission to approve it. Jack Callahan felt the Village Inn was an institution on Balboa Island. The applicant cared about Balboa Island and Newport Beach. Outside dining was a great idea and fit the Balboa Island lifestyle. He had no reservations about the applicant's plans to enhance the dining experience. The additional bike racks were a good idea. Peter Bergman recalled discussions at the December hearing on the item. He could not believe he was hearing the same proposal again. The Village Inn was not a restaurant with alcohol; it was a bar that served food, a nightclub with live music at night. He asked the Commission to vote against the use permit. Tina Sullivan stated multiple and repeated violations of a restaurant's use permit and the City's Municipal Code should disqualify an establishment from seeking a use permit and special privileges such as outdoor dining. The owners had violated every rule of common decency toward neighbors. The Village Inn had violated Sections 16, 17, 18, 22, and 23 of its use permit; any one violation authorized the City Manager to revoke the entertainment permit. The Village Inn had violated or continued to violate Sections 3, 6, 7, 8, 9, and 11 of its entertainment permit. The Village Inn routinely violated Municipal Code 5.28.040 Section B3. The Village Inn wanted the City to give it the sidewalk for expansion. The entire block of residents opposed the expansion. A member of the public advised that the Village Inn was a restaurant where he took his children. Outdoor seating was a great idea. The restaurant was family oriented. The expansion should be approved. The owner would address any issues that came up. Ellis Morcos remarked that the proposed project was not an improvement and would have a negative impact on homes on Marine Avenue. Residents had good relationships with previous owners of the Village Inn. One could not trust the current owners to obey rules. Outdoor dining was noisy, and the proposed doors would direct noise to residences. Residents with rental units would have difficulty renting those units because of noise. People had paid to install and maintain the benches where the bike racks were proposed. A member of the public suggested moving the bike racks would result in more bikes riding down Marine Avenue, which might not be a good idea. Placing bike racks at the crosswalks could reduce motorists' view of pedestrians. Bike racks were needed and used on the Island. Tommy Crosson believed the noise issue had gotten better. Residents should support businesses and allow the applicant to demonstrate his ability to improve the situation. Tom O'Brien read from the City Charter regarding conditional use permit and mitigations. Outdoor dining seemed to conflict with the section of the Charter. He questioned whether mitigations could be implemented if the noise study was wrong. Outdoor dining was placed on 10-foot sidewalks in the 200 and 300 blocks of Marine Avenue. The sidewalk outside the Village Inn was 6 feet wide. He opposed the proposed project. Yam Apellroth felt the bike racks were an eyesore and suggested they be placed across from the restrooms at the fire station. A nice patio rather than the bike racks would enhance the view for residents. The owner would care for the people on Marine Avenue. 5of10 Lynne O'Brien opposed the Village Inn's plans for outdoor dining. The Village Inn was located in a residential block of Marine Avenue. The proposed outdoor dining area would be only 40 feet from the two nearest residential properties. She read Chapter 20.50.080, Paragraphs 3 and 5. The proposed dining area was too narrow to accommodate both tables and chairs and pedestrian traffic. Policy L-21 prohibited outdoor sidewalk dining within 10 feet of a crosswalk. The proposed dining area was located within 10 feet of a crosswalk. The owner could reinstate the original Village Inn addresses of 1307 and 1309 Park Avenue and install doors on the Park Avenue side. The project was inappropriate for the neighborhood. Brian Moss had had no issues with sound from the Village Inn; although, he lived six or seven houses away. The proposed project would enhance the character of the restaurant, Marine Avenue, the Island, and Orange County. He supported the application. Lee Short suggested the owner could have problems with moving patrons inside from the patio tables. The owner should consider the effect of noise on the firemen across the street. Jay Truax recalled the applicant indicating entertainment would be delayed while patrons moved indoors. Only one street seemed to be complaining. People had left the restaurant because there was no outdoor dining. He recommended the Commission approve the use permit. Tim Hamilton supported outdoor dining for the Village Inn. The owner would have to police the doors to ensure noise was not an issue. The negative impacts on the community would be minimal, and the Commission should support the project. The bike racks could be placed at the fire station. Sixteen chairs would not be a huge noise concern. He believed the overall community supported the expansion. Pat O'Sullivan had viewed videos of noise violations at the Village Inn. As a retired Newport Beach police officer, he would take action against such violations. Residents would not welcome any additional noise. Shane Sullivan advised that nightclub music from the Village Inn had disturbed his family for four years. At times, he could not do his homework because of the noise. Just two days ago, his family heard music inside their living room. He played a recording of noise from the Village Inn. Mike Sullivan remarked that he gave up on Code Enforcement Officers and Police Officers doing anything about the noise. He had videos taken inside his home with windows closed of music from the Village Inn. Additional videos were taken from the street. The Municipal Code stated noise must be contained within the building. Deliveries were made as early as 3:00 a.m. The Commission had not listened to the recordings. Video recordings showed people dancing in the street and on the stage and screaming with the band. Darin Friend reported the Village Inn had never been quieter. The owner no longer hired large bands. The current owner was the most considerate the Village Inn had had. Charles Kinsler, owner, had received a letter of support from the neighbor living closest to the Village Inn and read the letter. Don Abrams felt placing the bike racks at the crosswalks was a terrible idea, because it would be dangerous for pedestrians. The Village Inn was noisy during the summer time. The people inside the restaurant rather than outside would create the noise. He suggested a friendly meeting of parties to find a compromise. Steve Rozansky, Newport Beach Chamber of Commerce, supported the project. Dan Miller was a good operator of the property and had agreed to restrictions. The noise ordinance was in effect. The operator's license was another tool for the City to prevent Code violations. Jim Simpkins had not heard any noise from the Village Inn. Mr. Miller was a man of good character. The residents of Marine Avenue should meet with Mr. Miller to reach a compromise. Susan Bartoletti had not heard any loud music from the Village Inn on her nightly walks. Residents could hear noise made by other residents. Homes were located close to one another on the Island. Ms. McDermott voiced her regret that neighbors opposed the project despite efforts to reduce noise. The sign prohibiting dancing was required by the entertainment permit. Bike racks were not owned by the City, but they 6of10 were located on the City right-of-way. No one knew who owned the bike racks. The City Traffic Engineer would have to approve the location and safety of bike racks. The Village Inn was located in the mixed-use portion of Marine Avenue. The outdoor dining area would be located 37 feet, 60 feet, and 75 feet away from the three nearest neighbors. The applicant would work with staff regarding conditions of approval. Chair Kramer closed the public hearing. In response to Secretary Zak's inquiry, Deputy Director Wisneski reported an operator's license was a condition of approval because the applicant was amending its use permit and because the business was open beyond 11:00 p.m. Condition of Approval 23 required an operator's license,which was issued by the Police Department. Police Civilian Investigator Joe advised that the operator's license was a way to support the CUP and to penalize the license holder. Fines under a CUP were minimal and did not have an impact. The operator's license was created so that police could prohibit serving alcohol after 11:00 p.m. or with live entertainment. In response to Commissioner Lawler's questions regarding videos and violations, Police Civilian Investigator Joe reported the Police Department had not seen the videos. This was the first she had heard of videos. The Police Department had been to the Village Inn on numerous occasions. On the Police Department's eight visits to the Village Inn, officers could not find evidence to support a noise violation. The videos would have been helpful. The Police Department received only two complaints in 2016. The Police Department had no evidence there was a significant problem. Deputy Director Wisneski indicated she had reviewed the videos with the Assistant City Manager. The oldest videos were taken within Mr. Sullivan's residence in 2012, and it was apparent he could hear music at that level. The recent videos were taken from the sidewalk outside the establishment. One could hear music from the sidewalk, but that in itself was not a violation. Section 5.28 of the Municipal Code talked about sound levels not emanating beyond the building edge. However, the live entertainment permit qualified the Code section by stating the noise shall not exceed 60 decibels on the public sidewalk. It was difficult to determine whether the noise exceeded 60 decibels in the videos. Staff maintained that they had not been able to document any violations. Senior Code Enforcement Officer Palmer stated restaurant and bar checks were conducted the prior week. When ambient noise decreased, noise from the Village Inn was barely audible. The ambient noise level by far exceeded the interior noise level. Unfortunately, complaints to Code Enforcement were made four to six years after the incidents occurred. As of the current date, there were no violations of the sound ordinance. Senior Code Enforcement Officer Palmer did not wish to speculate as to whether the videos documented noise violations. She could not state the video heard during public comment was a violation without having been present to take a sound reading at the time of the incident. In response to Commissioner Hillgren's inquiries, City Traffic Engineer Brine reported staff had just begun to review locations for bike racks. Staff shared concerns regarding visibility of sidewalks and would review locations to maximize visibility and lessen impact to parking. Staff had not previously installed bike corrals, so they were uncertain about the length of time to receive them once ordered or the length of time needed to hire a contractor to install them. Staff estimated installation would require four months. Staff would verify the Merchants Association's support for the bike corrals. The minimum sidewalk width under Americans with Disabilities Act (ADA) requirements was 48 inches. The sidewalk would be 6 feet wide after installation of the dining area and would comply with ADA requirements. Secretary Zak remarked that he voted against the use at the December meeting because of the finding regarding the general welfare of persons residing or working in the neighborhood of the proposed use. He heard the concerns of adjacent neighbors opposing the use. Most Commissioners wanted businesses to thrive. Earlier, he had inquired about opening windows and the wall to achieve the outdoor effect without having outdoor seating, to which the applicant answered yes. The positive aspects outweighed a direct denial of the use. The building would be upgraded substantially. The conditions of approval included many restrictions. He recommended including conditions of approval regarding hours of deliveries and conducting noise measurements within three months of full operation of the outdoor dining area. Commissioner Hillgren enjoyed outdoor dining in Newport Beach. It benefited everyone. Opening the sidewalk for public use was a gift of real estate owned by residents. He expected to receive something in return. It was important for the improvements to look good. The wrought iron fencing looked cheap and did not create an appropriate environment for the end of the commercial district. He encouraged Commissioners to consider a condition of approval to require an enhancement to the outdoor dining area. The new doors would provide sound attenuation to benefit the community. The proposed locations for the bike racks were smarter. The 7of10 operator's license required enforcement. He encouraged residents to complain about violations. A requirement to conduct noise tests after operations begin was good. Commissioner Lawler felt the Commission was sympathetic to nearby neighbors. The applicant had made great strides since the prior meeting. Proposed improvements were significant. The Commission should vote based on facts rather than speculation or opinion. The use was clearly consistent with Land Use Element 5.3.4. Secretary Zak's additional condition of approval was appropriate. Commissioner Hillgren's condition of approval regarding landscaping was appropriate as well. Commissioner Weigand believed the applicant had worked hard on the application, but he also was sympathetic to residents' concerns. The applicant had agreed to conditions. The proposed location for bike racks was beneficial for residents and the community. Promoting more bike use was positive for the City. Balboa Island was a major tourism component to the City. The Council had to approve the sidewalk encroachment and the location of bike racks. The existing permit restricted deliveries between 10:00 p.m. and 8:00 a.m. If there were violations, residents needed to complain to the City. He wanted staff to provide an update on the location of bike racks. He concurred with the applicant's request regarding a payment of$12,000 within 30 days of the Council's authorization but not the request regarding 120 days. Chair Kramer believed the conditions of approval were key, particularly in this application. He encouraged the maker of a motion to include the various conditions of approval discussed. All commercial property uses were required to comply with City noise regulations. The Village Inn had to comply with the noise ordinance, and not doing so was a code enforcement action rather than a denial of a valid use. Tension between residential and commercial uses was common. Residential uses located near commercial uses were sometimes inconvenienced. Commercial uses shifted over time to meet market demands. As long as the use complied with rules, those uses should be accommodated. The City must enforce those rules. In response to Secretary Zak's request, Commissioner Hillgren stated the Commission did not need to review a landscape plan. That area should be landscaped in a sufficient manner and approved by the Director of Community Development. He encouraged the applicant to improve the wrought iron railing. Landscaping would help the appearance of that. In response to Secretary Zak's question, Deputy Director Wisneski reported the existing use permit was more restrictive than the applicant's proposal for hours of truck deliveries. The existing use permit did not allow deliveries prior to 8:00 a.m. Secretary Zak concurred with Commissioner Weigand to accept the applicant's revision to the effective date in the condition of approval regarding bike racks but not the 120-day limitation. Commissioner Hillgren asked if there was an outside time period for installation of bike racks. City Traffic Engineer Brine indicated a four-month time period was staffs best estimate. Staff would make every effort to install bike corrals in the four-month period. Commissioner Weigand did not want the street to be without bike racks for any period of time. People would lock their bikes to fences and street signs, and the bikes would be a nuisance. He wanted a firm time period. Perhaps bike racks could be placed at the fire station or on Park Avenue. Chair Kramer did not believe it would be prudent to tie the whole thing to the bike rack issue. In response to Commissioner Weigand's questions, City Traffic Engineer Brine was much more comfortable with a period of six months. Assistant City Attorney Torres advised that staff recommended the removal of bike racks be tied to installation of bike corrals. Staff did not state a time period. The goal would be to install new bike corrals as quickly as possible. Secretary Zak agreed to a period of six months. In addition, the City would conduct noise tests at the applicant's expense once the outdoor seating area was operational. Deputy Director Wisneski added that the noise analysis would include a range of locations and times to demonstrate typical activity. 8of10 Motion made by Secretary Zak and seconded by Commissioner Hillgren to adopt a Resolution approving Use Permit Number UP2016-012 to establish an outdoor dining area associated with an existing restaurant at 127 Marine Avenue with revisions and amendments as discussed. In response to Commissioner Weigand, City Traffic Engineer Brine clarified that staff would provide an update regarding the bike racks at four months. Chair Kramer inquired whether the applicant agreed to the conditions of approval as discussed. AYES: Kramer, Zak, Hillgren, Lawler,Weigand NOES: None ABSTAIN: None ABSENT: Koetting, Dunlap ITEM NO. 4 DAWSON RESIDENCE (PA2015-224) Site Location: 2741 Ocean Boulevard This item was tabled. VIII. STAFF AND COMMISSIONER ITEMS ITEM NO. 5 MOTION FOR RECONSIDERATION None. ITEM NO. 6 COMMUNITY DEVELOPMENT DIRECTOR'S REPORT Deputy Director Wisneski reported the AutoNation application was withdrawn; therefore, the Planning Commission's decision to deny the project stood. On November 7, the Council would hear the adoption of the Local Coastal Program for the first time. Staff held a study session with the City Council, which went well. The following day, the Coastal Commission would vote on the City's categorical exclusion order. If progress continued, the City could begin implementing coastal development permits early in 2017. The City Council meeting the following week would be held on Monday rather than Tuesday. The Planning Commission's next meeting would be November 17. Planning Commission meetings for December 22nd and January 5th would be canceled. ITEM NO.7 ANNOUNCEMENTS ON MATTERS THAT THE PLANNING COMMISSION MEMBERS WOULD LIKE PLACED ON A FUTURE AGENDA FOR DISCUSSION, ACTION, OR REPORT None. ITEM NO. 8 REQUESTS FOR EXCUSED ABSENCES None. IX. ADJOURNMENT—9:14 p.m. 9of10 The agenda for the Planning Commission meeting was posted on Friday, October 21, 2016, at 12:23 p.m, in the Chambers binder, on the digital display board located inside the vestibule of the Council Chambers at 100 Civic Center Drive and on the City's website on Friday, October 21, 2016, at 12:09 p.m. Kory Kramer, Chair Peter Zak, Secretary 10 Of 10 Planning Commission - November 17, 2016 Item No. la Additional Materials Received Draft Minutes of November 3, 2016 Nov. 17, 2016, Planning Commission Agenda Item Comments Comments on Newport Beach Planning Commission regular meeting agenda item submitted by: Jim Mosher( iimmosher(o),vahoo.com ), 2210 Private Road, Newport Beach 92660 (949-548-6229). Item No. 1. MINUTES OF NOVEMBER 3, 2016 Changes to the draft minutes passages shown in italics are suggested in strikeout underline format. Page 2, last paragraph, sentence 5: "The Hearing Officer determined the encroachment should be abated within ten years ef the Giammk5sieWs antie ." [note: According to the SPON video, Deputy Directory Wisneski said "from the action taken today'—referring to the release earlier that day of the Hearing Officer's resolution, not to the Commission's subsequent action on its own hearing item. The Hearing Officer's order was not dependent on any action taken by the Commission.] Page 3, first (partial) paragraph, last sentence: "General Plan Policy 5.3.4 encouraged outdoor dining in this type of environment in that it activated sidewalks and outdoor spaces." Page 6, paragraph 4 from end: "Steve Rezansky Rosanskv, Newport Beach Chamber of Commerce, supported the project." Page 7, paragraph 3, sentence 3: "Police Civilian Investigator Joe advised that the operator's license was a way to support the CUP and to penalize the fiGense helde-give enforcement some teeth should there be a problem." [the suggestion is verbatim from the SPON video] Changes proposed by Commissioner Hillgren Planning Commission - November 17, 2016 Item No. 1 b Additional Materials Received Draft Minutes of November 3, 2016 NEWPORT BEACH PLANNING COMMISSION AGENDA CITY COUNCIL CHAMBERS — 100 CIVIC CENTER DRIVE THURSDAY, NOVEMBER 3, 2016 REGULAR MEETING—6:30 P.M. I. CALL TO ORDER-The meeting was called to order at 6:30 p.m. II. PLEDGE OF ALLEGIANCE—Chair Kramer III. ROLL CALL PRESENT: Chair Kory Kramer, Secretary Peter Zak, Commissioner Bradley Hillgren, Commissioner Ray Lawler and Commissioner Erik Weigand ABSENT: Vice Chair Peter Koetting, Commissioner Bill Dunlap Staff Present: Deputy Director Brenda Wisneski; Assistant City Attorney Michael Torres; City Traffic Engineer Tony Brine; Police Civilian Investigator Wendy Joe; Senior Code Enforcement Officer Cassie Palmer; Principal Planner Jim Campbell;and Administrative Support Specialist Jennifer Biddle IV. PUBLIC COMMENTS None. V. REQUEST FOR CONTINUANCES Deputy Director Wisneski reported the applicant requested Item Number 4 be tabled and re-noticed for a future date. Motion made by Chair Kramer and seconded by Commissioner Hillgren to continue Item Number 4. AYES: Kramer, Zak, Hillgren, Lawler, Weigand NOES: None ABSTAIN: None ABSENT: Koetting, Dunlap VI. CONSENT ITEMS ITEM NO. 1 MINUTES OF OCTOBER 20, 2016 Recommended Action: Approve and file Chair Kramer added an amendment regarding CEQA impacts to his written amendments. Motion made by Commissioner Lawler and seconded by Commissioner Hillgren to approve and file the minutes of the Planning Commission meeting of October 20, 2016, as amended. AYES: Kramer,Zak, Hillgren, Lawler,Weigand NOES: None ABSTAIN: None ABSENT: Koetting, Dunlap VII. PUBLIC HEARING ITEMS ITEM NO.2 GELSON'S SUPERMARKET CONDITIONAL USE PERMIT(PA2015-214) Site Location: 1660 San Miguel Drive Principal Planner Campbell reported the Planning Commission first reviewed the application on September 22, 2016, at which time it was tabled for the applicant to provide additional information. A small restaurant and outdoor patio would be added to the front of the store in the area of the existing coffee bar 1 of 10 Changes proposed by Commissioner Hillgren Planning Commission - November 17, 2016 Item No. 1 b Additional Materials Received Draft Minutes of November 3, 2016 seating. The applicant has provided additional details and drawings to show the proposed design. The use would operate with a Type 41 Alcoholic Beverage Control license. The hours of operation would be 11:00 a.m. to 9:00 p.m. The application has been amended to include off-site employee parking for 40 parking spaces at a nearby church on Pacific View Drive. A parking waiver would apply to Sunday when parking at the church would not be available. The patio would encompass approximately 750 square feet and could be accessed through the store. Staff provided findings for formalizing of the off-site parking arrangement, which has been working effectively since late 1999. Staff felt all the findings in the Municipal Code could be met to approve a conditional use permit for the small restaurant including off-site parking and a parking waiver for Sunday. Chair Kramer and Secretary Zak, Hillgren, and Lawler advised that they had not had any ex parte communications with the applicant. Commissioner Weigand indicated he had had email communications. Brett Engstrom, on behalf of Gelson's Market, believed the applicant had provided all the information the Commission sought. The applicant requested a conditional use permit for Type 41 and Type 86 licenses, approval of off-site parking, and a parking waiver for Sunday. Chuck Mayhew, on behalf of Gelson's Market, indicated project plans followed the Irvine Company's scheme for the center. The applicant proposed retention of existing landscaping. Paulette Alexander, on behalf of the Irvine Company, had worked with the applicant on conceptual plans and would work closely with Gelson's on the final design. In response to Commissioner Weigand's question, Ms. Alexander stated there had been no parking issues with the existing tenants. She did not believe there would be an increase in customers to cause issues in the future. Chair Kramer opened and closed the public hearing with no comments made. Commissioner Hillgren appreciated the applicant's response to the Commission's comments from the previous meeting by-addressing the issues and &submitting a more comprehensive application. Motion made by Commissioner Hillgren and seconded by Secretary Zak to adopt a Resolution to approve Conditional Use Permit UP2015-048. AYES: Kramer,Zak, Hillgren, Lawler,Weigand NOES: None ABSTAIN: None ABSENT: Koetting, Dunlap ITEM NO. 3 THE VILLAGE INN OUTDOOR DINING USE PERMIT (PA2015-016) Site Location: 123 and 127 Marine Avenue Deputy Director Wisneski reported the Commission first considered the application in December 2015. The Village Inn was located in the Mixed-Use zone of Balboa Island. A residential unit was located above the restaurant use. Since December 2015, staff had eliminated the need for a land use amendment. The Hearing Officer determined the encroachment should be abated within ten years of the Commission's action. At the end of ten years, the encroachment could be removed, the abatement period could be extended, or a land use change could occur. A noise analysis was completed which identified measures to attenuate noise from live entertainment and determined that noise could be mitigated to comply with the noise ordinance. A second noise analysis regarding noise from indoor and outdoor diners concluded there were no impacts. Bike racks would be relocated from the original proposed location. The applicant requested a conditional use permit for outdoor dining along Marine Avenue. The outdoor dining area would be approximately 200 square feet, contain 16 seats,and operate from 7:00 a.m.to 9:00 p.m., but would close at 10:00 p.m.on Fridays and Saturdays between Memorial Day and Labor Day, federal holidays and community events. The outdoor dining area would close when live entertainment was offered. Because the outdoor dining area was located in the public right-of-way, it would be subject to City Council approval. The Commission should determine whether the use was compatible with the neighborhood. Deputy Director Wisneski reviewed details of the site plans and elevations. Staff was considering locating bike corrals along Marine Avenue adjacent to existing crosswalks. Conditions of approval 2of10 Changes proposed by Commissioner Hillgren Planning Commission - November 17, 2016 Item No. 1 b Additional Materials Received Draft Minutes of November 3, 2016 required the applicant to contribute $12,000 towards installation and maintenance of the bike corrals and to install bike corrals prior to issuance of building permits for the outdoor dining area. Staff felt it was important to maintain the current bike racks until the new bike corrals were installed. Approval of the project was conditioned upon the Council providing direction to staff to pursue a bike corral option. Deputy Director Wisneski summarized prior use permits issued, noise complaints, notices of violation, and critical conditions of approval. Staff recommended approval of the use permit to establish outdoor dining. Policy 5.3.4 encouraged outdoor dining in this type of environment in that it activated sidewalks and outdoor spaces. In response to Commissioner Lawler's inquiries, Deputy Director Wisneski advised that a building permit for the project could not be issued until the new bike corrals were installed. Staff did not support Ms. McDermott's proposed amendment to include a timeframe in the condition of approval. In response to Secretary Zak's questions, Deputy Director Wisneski reported the definitions of restaurant and bar were based on the type of license. A Type 47 license indicated a restaurant with a bona fide eating establishment. The applicant could install doors and windows that opened with no outdoor seating area by obtaining a building permit. A use permit was triggered only by a change in operation. In response to Chair Kramer's request for information regarding noise complaints, Police Civilian Investigator Joe indicated the Police Department received two calls for service in 2016 from unknown callers. When patrol arrived on the scene, noise levels were acceptable. In 2015, the Police Department received four excessive noise complaints in three nights, all from anonymous callers. Patrol confirmed excessive noise on two of those occasions. Patrol conducted eight self-initiated visits; officers reported excessive noise on one of those visits. When an officer determined noise levels were excessive, he would tell the business to quiet down. Usually the noise would decrease, and the officer would not issue a notice of violation. This was the typical response to noise complaints when the Police Department and a business had a good working relationship. The Police Department had a good relationship with the Village Inn. There was no evidence the Village Inn had an over- service problem. In the past 12 months, there was no evidence that any police contact because of drunk in public resulted from the Village Inn. In response to Chair Kramer's inquiries, Senior Code Enforcement Officer Palmer explained that spot checks of businesses occurred once a month and these spot checks were not in response to complaints. Code Enforcement Officers had not found any noise violations. A live entertainment permit had specific requirements to control noise from bands. Code Enforcement Officers always found the Village Inn in compliance with ordinances. Officers carried and used sound meters to determine whether noise levels were in compliance. Code Enforcement Officers had not issued any notices of violation of the noise ordinance to the Village Inn. The public called either the Police Department or Code Enforcement with noise complaints. If complaints were made outside business hours, the Police Department would respond. When Code Enforcement noticed an influx of complaints for the same business, they would ask patrol to go by the business more often. If needed, Code Enforcement Officers would follow-up with the business during regular business hours. Other complaints about the Village Inn concerned property maintenance, but officers found nothing to warrant issuing a notice of violation. In response to Chair Kramer's question regarding correspondence of a legal nature, Assistant City Attorney Torres noted one letter received from an attorney representing some local residents. He had reviewed it with Community Development Director Brandt and Deputy Director Wisneski. They did not believe the letter raised any issues that caused concerns from a legal perspective. Chair Kramer reported he had met with the applicant on-site and had several communications with the applicant's consultant. Secretary Zak reported he had had several conversations with the applicant's consultant, had visited the site, and spoken on the phone with residents. Commissioner Lawler reported he had spoken with the applicant's consultant. Commissioner Hillgren reported he had met with the applicant's consultant on-site and had telephone conversations. Commissioner Weigand reported he visited the site with the applicant's consultant. 3of10 Changes proposed by Commissioner Hillgren Planning Commission - November 17, 2016 Item No. 1 b Additional Materials Received Draft Minutes of November 3, 2016 Dan Miller, applicant, remarked that the Village Inn was a link between the traditional and modem impacts of Balboa Island and Newport Beach and a place where people gathered to represent the community. His team prepared a thorough, well-considered, and inclusive picture of his intentions for outdoor dining including the limitations to which he agreed. In response to noise complaints, he obtained professional acoustic data and created solutions that would positively impact noise. He had worked with the City to provide solutions that improved the neighbors' perceived impressions of bike racks. Surveys indicated approximately 20 percent of bike rack users entered the Village Inn. The Village Inn's business model was shifting to facilitate more daytime dining. In order to thrive, the Village Inn needed to align with both local residents'and tourists' expectations. He shared his personal and business background. The Village Inn was a part of the infrastructure of the community, and its presence increased both property values and community values. The Village Inn was a restaurant with cocktail service that provided warmth, substance, and a meeting place. Approval of the application was in direct correlation to the requests and needs of the community. He supported staffs recommendations, findings, and conditions of approval. Carol McDermott, consultant for the applicant, felt the history of the site was an important part of the discussion and related a brief history of the site. The applicant was working to add to the island ambience in a mixed-use zone. Balboa Island Improvement Association (BIIA) and the Merchants Association hosted events along the 100 block of Marine Avenue and sponsored parties on the site. The applicant had changed the menu from bar food to fine dining and increased food sales. The applicant wanted to attenuate noise more effectively, further the fine dining experience, continue to provide a community gathering place, remain consistent with licenses and permits, and to commit to additional conditions of approval. The outdoor dining plan was 16 seats in the location of the existing bike racks. The applicant worked with the City and contacted bike-friendly cities to find a good, alternative location for bike racks. The General Plan recommended outdoor seating, and the City Council had approved a number of locations for outdoor dining within the public right-of-way and waived the Policy L-21 requirements. The applicant proposed new windows and a Plexiglas barrier around the southern edge of the outdoor dining area to attenuate noise. Sidewalks would remain at a minimum width of 6 feet. The wrought iron fencing was required by the ABC license and would provide some safety. The majority of bike rack users were shoppers in the merchant area. Proposed locations for bike corrals were in the 200 and 300 blocks of Marine Avenue. The proposed bike corrals would accommodate 44 bikes, and the $12,000 fee would more than replace the existing bike racks. The Merchants Association unanimously supported the bike corrals. Ms. McDermott explained sound contours in relation to noise levels. The ambient noise level resulted from vehicle and pedestrian traffic and aircraft and was determined to be greater than the daytime threshold contained in the noise ordinance. Noise modeling indicated noise from interior and exterior patrons would be below the noise limit and the existing ambient noise level. Improvements included window upgrades and seals for doors. The applicant would instruct entertainers to delay performances until outdoor diners could be brought inside. No amplified televisions or paging systems were allowed in the outdoor area. With noise attenuation, noise levels would be approximately 45 dB at the property line of 123 Marine during the nighttime, thereby complying with the noise ordinance and the entertainment permit. The applicant had modified its entertainment style in response to residents' requests. The applicant had installed new windows facing 123 Marine, applied noise-attenuating paint, installed acoustical panels, hung curtains, and removed window controls in an effort to reduce noise. Noise complaints had been made, but officers found no noise violations. The applicant would agree to no truck deliveries prior to 6:00 a.m. and after 9:00 p.m. Support for the project was wide spread. She requested the Commission approve the use permit and add language regarding the applicant's contribution for bike corrals and a time period for installing bike corrals. In response to Commissioner Hillgren's inquiries regarding landscaping, Ms. McDermott advised that she had not prepared plans for landscaping, but she would submit them for staff or Commission approval. The area of enhanced landscaping was located at the comer. The existing vertical element and ground cover would be enhanced. There was no room to place planters in the outdoor dining area. In response to Secretary Zak's questions, Ms. McDermott explained that the number of doors was needed to serve the outdoor tables. The space was too small to access all tables by only one door. The doors would give the exterior a finished look and provide noise attenuation, which would improve the situation. The applicant wanted the outdoor dining area to make it readily apparent the building was a restaurant, to enhance the island feeling of being outdoors, to increase food sales, and to reduce bar service. Interior acoustical panels were installed around the entire building. The acoustical consultant was not present, but he had submitted an updated report. Measurement of patron noise was based on modeling rather than empirical evidence. 4of10 Changes proposed by Commissioner Hillgren Planning Commission - November 17, 2016 Item No. 1 b Additional Materials Received Draft Minutes of November 3, 2016 Commissioner Lawler stated the Commission's role was to review the noise study and determine whether it was factual. Secretary Zak noted adjacent residences could be impacted by noise. Chair Kramer advised that the matter before the Commission was the amendment to the conditional use permit to allow a 200-square-foot outdoor dining area at the front of the restaurant. The Commission was concerned with land use rather than Code Enforcement. Chair Kramer opened the public hearing. Michele Caston supported outdoor dining at the Village Inn. Corona del Mar was more beautiful with the addition of outdoor dining. The wide sidewalk could accommodate a few tables. Outdoor dining was allowed at the site in the 1930s and 1940s. Changes to the doors and windows would reduce the noise. Allowing a few outdoor tables with restrictions was reasonable. Michael Lawler looked forward to outdoor dining at the Village Inn. Conditions of approval were well thought out. He supported the project and urged the Commission to approve it. Jack Callahan felt the Village Inn was an institution on Balboa Island. The applicant cared about Balboa Island and Newport Beach. Outside dining was a great idea and fit the Balboa Island lifestyle. He had no reservations about the applicant's plans to enhance the dining experience. The additional bike racks were a good idea. Peter Bergman recalled discussions at the December hearing on the item. He could not believe he was hearing the same proposal again. The Village Inn was not a restaurant with alcohol; it was a bar that served food, a nightclub with live music at night. He asked the Commission to vote against the use permit. Tina Sullivan stated multiple and repeated violations of a restaurant's use permit and the City's Municipal Code should disqualify an establishment from seeking a use permit and special privileges such as outdoor dining. The owners had violated every rule of common decency toward neighbors. The Village Inn had violated Sections 16, 17, 18, 22, and 23 of its use permit; any one violation authorized the City Manager to revoke the entertainment permit. The Village Inn had violated or continued to violate Sections 3, 6, 7, 8, 9, and 11 of its entertainment permit. The Village Inn routinely violated Municipal Code 5.28.040 Section B3. The Village Inn wanted the City to give it the sidewalk for expansion. The entire block of residents opposed the expansion. A member of the public advised that the Village Inn was a restaurant where he took his children. Outdoor seating was a great idea. The restaurant was family oriented. The expansion should be approved. The owner would address any issues that came up. Ellis Morcos remarked that the proposed project was not an improvement and would have a negative impact on homes on Marine Avenue. Residents had good relationships with previous owners of the Village Inn. One could not trust the current owners to obey rules. Outdoor dining was noisy, and the proposed doors would direct noise to residences. Residents with rental units would have difficulty renting those units because of noise. People had paid to install and maintain the benches where the bike racks were proposed. A member of the public suggested moving the bike racks would result in more bikes riding down Marine Avenue, which might not be a good idea. Placing bike racks at the crosswalks could reduce motorists' view of pedestrians. Bike racks were needed and used on the Island. Tommy Crosson believed the noise issue had gotten better. Residents should support businesses and allow the applicant to demonstrate his ability to improve the situation. Tom O'Brien read from the City Charter regarding conditional use permit and mitigations. Outdoor dining seemed to conflict with the section of the Charter. He questioned whether mitigations could be implemented if the noise study was wrong. Outdoor dining was placed on 10-foot sidewalks in the 200 and 300 blocks of Marine Avenue. The sidewalk outside the Village Inn was 6 feet wide. He opposed the proposed project. Yam Apellroth felt the bike racks were an eyesore and suggested they be placed across from the restrooms at the fire station. A nice patio rather than the bike racks would enhance the view for residents. The owner would care for the people on Marine Avenue. 5of10 Changes proposed by Commissioner Hillgren Planning Commission - November 17, 2016 Item No. 1 b Additional Materials Received Draft Minutes of November 3, 2016 Lynne O'Brien opposed the Village Inn's plans for outdoor dining. The Village Inn was located in a residential block of Marine Avenue. The proposed outdoor dining area would be only 40 feet from the two nearest residential properties. She read Chapter 20.50.080, Paragraphs 3 and 5. The proposed dining area was too narrow to accommodate both tables and chairs and pedestrian traffic. Policy L-21 prohibited outdoor sidewalk dining within 10 feet of a crosswalk. The proposed dining area was located within 10 feet of a crosswalk. The owner could reinstate the original Village Inn addresses of 1307 and 1309 Park Avenue and install doors on the Park Avenue side. The project was inappropriate for the neighborhood. Brian Moss had had no issues with sound from the Village Inn; although, he lived six or seven houses away. The proposed project would enhance the character of the restaurant, Marine Avenue, the Island, and Orange County. He supported the application. Lee Short suggested the owner could have problems with moving patrons inside from the patio tables. The owner should consider the effect of noise on the firemen across the street. Jay Truax recalled the applicant indicating entertainment would be delayed while patrons moved indoors. Only one street seemed to be complaining. People had left the restaurant because there was no outdoor dining. He recommended the Commission approve the use permit. Tim Hamilton supported outdoor dining for the Village Inn. The owner would have to police the doors to ensure noise was not an issue. The negative impacts on the community would be minimal, and the Commission should support the project. The bike racks could be placed at the fire station. Sixteen chairs would not be a huge noise concern. He believed the overall community supported the expansion. Pat O'Sullivan had viewed videos of noise violations at the Village Inn. As a retired Newport Beach police officer, he would take action against such violations. Residents would not welcome any additional noise. Shane Sullivan advised that nightclub music from the Village Inn had disturbed his family for four years. At times, he could not do his homework because of the noise. Just two days ago, his family heard music inside their living room. He played a recording of noise from the Village Inn. Mike Sullivan remarked that he gave up on Code Enforcement Officers and Police Officers doing anything about the noise. He had videos taken inside his home with windows closed of music from the Village Inn. Additional videos were taken from the street. The Municipal Code stated noise must be contained within the building. Deliveries were made as early as 3:00 a.m. The Commission had not listened to the recordings. Video recordings showed people dancing in the street and on the stage and screaming with the band. Darin Friend reported the Village Inn had never been quieter. The owner no longer hired large bands. The current owner was the most considerate the Village Inn had had. Charles Kinsler, owner, had received a letter of support from the neighbor living closest to the Village Inn and read the letter. Don Abrams felt placing the bike racks at the crosswalks was a terrible idea, because it would be dangerous for pedestrians. The Village Inn was noisy during the summer time. The people inside the restaurant rather than outside would create the noise. He suggested a friendly meeting of parties to find a compromise. Steve Rozansky, Newport Beach Chamber of Commerce, supported the project. Dan Miller was a good operator of the property and had agreed to restrictions. The noise ordinance was in effect. The operator's license was another tool for the City to prevent Code violations. Jim Simpkins had not heard any noise from the Village Inn. Mr. Miller was a man of good character. The residents of Marine Avenue should meet with Mr. Miller to reach a compromise. Susan Bartoletti had not heard any loud music from the Village Inn on her nightly walks. Residents could hear noise made by other residents. Homes were located close to one another on the Island. Ms. McDermott voiced her regret that neighbors opposed the project despite efforts to reduce noise. The sign prohibiting dancing was required by the entertainment permit. Bike racks were not owned by the City, but they 6of10 Changes proposed by Commissioner Hillgren Planning Commission - November 17, 2016 Item No. 1 b Additional Materials Received Draft Minutes of November 3, 2016 were located on the City right-of-way. No one knew who owned the bike racks. The City Traffic Engineer would have to approve the location and safety of bike racks. The Village Inn was located in the mixed-use portion of Marine Avenue. The outdoor dining area would be located 37 feet, 60 feet, and 75 feet away from the three nearest neighbors. The applicant would work with staff regarding conditions of approval. Chair Kramer closed the public hearing. In response to Secretary Zak's inquiry, Deputy Director Wisneski reported an operator's license was a condition of approval because the applicant was amending its use permit and because the business was open beyond 11:00 p.m. Condition of Approval 23 required an operator's license, which was issued by the Police Department. Police Civilian Investigator Joe advised that the operator's license was a way to support the CUP and to penalize the license holder. Fines under a CUP were minimal and did not have an impact. The operator's license was created so that police could prohibit serving alcohol after 11:00 p.m. or with live entertainment. In response to Commissioner Lawler's questions regarding videos and violations, Police Civilian Investigator Joe reported the Police Department had not seen the videos. This was the first she had heard of videos. The Police Department had been to the Village Inn on numerous occasions. On the Police Department's eight visits to the Village Inn, officers could not find evidence to support a noise violation. The videos would have been helpful. The Police Department received only two complaints in 2016. The Police Department had no evidence there was a significant problem. Deputy Director Wisneski indicated she had reviewed the videos with the Assistant City Manager. The oldest videos were taken within Mr. Sullivan's residence in 2012, and it was apparent he could hear music at that level. The recent videos were taken from the sidewalk outside the establishment. One could hear music from the sidewalk, but that in itself was not a violation. Section 5.28 of the Municipal Code talked about sound levels not emanating beyond the building edge. However, the live entertainment permit qualified the Code section by stating the noise shall not exceed 60 decibels on the public sidewalk. It was difficult to determine whether the noise exceeded 60 decibels in the videos. Staff maintained that they had not been able to document any violations. Senior Code Enforcement Officer Palmer stated restaurant and bar checks were conducted the prior week. When ambient noise decreased, noise from the Village Inn was barely audible. The ambient noise level by far exceeded the interior noise level. Unfortunately, complaints to Code Enforcement were made four to six years after the incidents occurred. As of the current date, there were no violations of the sound ordinance. Senior Code Enforcement Officer Palmer did not wish to speculate as to whether the videos documented noise violations. She could not state the video heard during public comment was a violation without having been present to take a sound reading at the time of the incident. In response to Commissioner Hillgren's inquiries, City Traffic Engineer Brine reported staff had just begun to review locations for bike racks. Staff shared concerns regarding visibility of sidewalks and would review locations to maximize visibility and lessen impact to parking. Staff had not previously installed bike corrals, so they were uncertain about the length of time to receive them once ordered or the length of time needed to hire a contractor to install them. Staff estimated installation would require four months. Staff would verify the Merchants Association's support for the bike corrals. The minimum sidewalk width under Americans with Disabilities Act (ADA) requirements was 48 inches. The sidewalk would be 6 feet wide after installation of the dining area and would comply with ADA requirements. Secretary Zak remarked that he voted against the use at the December meeting because of the finding regarding the general welfare of persons residing or working in the neighborhood of the proposed use. He heard the concerns of adjacent neighbors opposing the use. Most Commissioners wanted businesses to thrive. Earlier, he had inquired about opening windows and the wall to achieve the outdoor effect without having outdoor seating, to which the applicant answered yes. The positive aspects outweighed a direct denial of the use. The building would be upgraded substantially. The conditions of approval included many restrictions. He recommended including conditions of approval regarding hours of deliveries and conducting noise measurements within three months of full operation of the outdoor dining area. Commissioner Hillgren enjeyed-is a supporter of outdoor dining in Newport Beach. "�RPAted because it beneifts both the customers and the restaurant operators everyreRe. Opening the sidewalk for public use was represents a gift of real estate which is -owned by the residents of Newport Beach. kle-In exchange for using public space, he expected to-the applicant to provideraseiue something in return. It was is important for the improvements at the Village Inn to leer geedbe of high quality because Marine Avenue and Balboa Island represent an important location in the city. The proposed wrought iron fencing and lack of landscaping leaked looks cheap and did-does not create an appropriate enviF ^^^^' appearance for the end of tlie—this iconic 7of10 Changes proposed by Commissioner Hillgren Planning Commission - November 17, 2016 Item No. 1 b Additional Materials Received Draft Minutes of November 3, 2016 commercial district. He encouraged Commissioners to consider a condition of approval to require an enhancement to the outdoor dining area. The new doors weu4-will provide sound attenuation which is a-to benefit the community and a reason to support the application. The proposed locations for the bike racks were is also smarterbetter for use by the public than the current location. The requirement for the Village Inn to secure an operator's license required provides a needed tool for code enforcement and ha=le encouraged residents to complain about violations at the time they are observed so the city's code enforcement officers can respond to their issues. A requirement to conduct noise tests after operations begin was good. Commissioner Lawler felt the Commission was sympathetic to nearby neighbors. The applicant had made great strides since the prior meeting. Proposed improvements were significant. The Commission should vote based on facts rather than speculation or opinion. The use was clearly consistent with Land Use Element 5.3.4. Secretary Zak's additional condition of approval was appropriate. Commissioner Hillgren's condition of approval regarding landscaping was appropriate as well. Commissioner Weigand believed the applicant had worked hard on the application, but he also was sympathetic to residents' concerns. The applicant had agreed to conditions. The proposed location for bike racks was beneficial for residents and the community. Promoting more bike use was positive for the City. Balboa Island was a major tourism component to the City. The Council had to approve the sidewalk encroachment and the location of bike racks. The existing permit restricted deliveries between 10:00 p.m. and 8:00 a.m. If there were violations, residents needed to complain to the City. He wanted staff to provide an update on the location of bike racks. He concurred with the applicant's request regarding a payment of$12,000 within 30 days of the Council's authorization but not the request regarding 120 days. Chair Kramer believed the conditions of approval were key, particularly in this application. He encouraged the maker of a motion to include the various conditions of approval discussed. All commercial property uses were required to comply with City noise regulations. The Village Inn had to comply with the noise ordinance, and not doing so was a code enforcement action rather than a denial of a valid use. Tension between residential and commercial uses was common. Residential uses located near commercial uses were sometimes inconvenienced. Commercial uses shifted over time to meet market demands. As long as the use complied with rules,those uses should be accommodated. The City must enforce those rules. In response to Secretary Zak's request, Commissioner Hillgren stated the Commission did not need to review a landscape plan. That area should be landscaped in a sufficient manner and approved by the Director of Community Development. He encouraged the applicant to improve the wrought iron railing. Landscaping would help the appearance of that. In response to Secretary Zak's question, Deputy Director Wisneski reported the existing use permit was more restrictive than the applicant's proposal for hours of truck deliveries. The existing use permit did not allow deliveries prior to 8:00 a.m. Secretary Zak concurred with Commissioner Weigand to accept the applicant's revision to the effective date in the condition of approval regarding bike racks but not the 120-day limitation. Commissioner Hillgren asked if there was an outside time period for installation of bike racks. City Traffic Engineer Brine indicated a four-month time period was staffs best estimate. Staff would make every effort to install bike corrals in the four-month period. Commissioner Weigand did not want the street to be without bike racks for any period of time. People would lock their bikes to fences and street signs, and the bikes would be a nuisance. He wanted a firm time period. Perhaps bike racks could be placed at the fire station or on Park Avenue. Chair Kramer did not believe it would be prudent to tie the whole thing to the bike rack issue. In response to Commissioner Weigand's questions, City Traffic Engineer Brine was much more comfortable with a period of six months. Assistant City Attorney Torres advised that staff recommended the removal of bike racks be tied to installation of bike corrals. Staff did not state a time period. The goal would be to install new bike corrals as quickly as possible. 8of10 Changes proposed by Commissioner Hillgren Planning Commission - November 17, 2016 Item No. 1 b Additional Materials Received Draft Minutes of November 3, 2016 Secretary Zak agreed to a period of six months. In addition, the City would conduct noise tests at the applicant's expense once the outdoor seating area was operational. Deputy Director Wisneski added that the noise analysis would include a range of locations and times to demonstrate typical activity. Motion made by Secretary Zak and seconded by Commissioner Hillgren to adopt a Resolution approving Use Permit Number UP2016-012 to establish an outdoor dining area associated with an existing restaurant at 127 Marine Avenue with revisions and amendments as discussed. In response to Commissioner Weigand, City Traffic Engineer Brine clarified that staff would provide an update regarding the bike racks at four months. Chair Kramer inquired whether the applicant agreed to the conditions of approval as discussed. AYES: Kramer, Zak, Hillgren, Lawler,Weigand NOES: None ABSTAIN: None ABSENT: Koetting, Dunlap ITEM NO. 4 DAWSON RESIDENCE (PA2015-224) Site Location: 2741 Ocean Boulevard This item was tabled. VIII. STAFF AND COMMISSIONER ITEMS ITEM NO. 5 MOTION FOR RECONSIDERATION None. ITEM NO. 6 COMMUNITY DEVELOPMENT DIRECTOR'S REPORT Deputy Director Wisneski reported the AutoNation application was withdrawn; therefore, the Planning Commission's decision to deny the project stood. On November 7, the Council would hear the adoption of the Local Coastal Program for the first time. Staff held a study session with the City Council, which went well. The following day, the Coastal Commission would vote on the City's categorical exclusion order. If progress continued, the City could begin implementing coastal development permits early in 2017. The City Council meeting the following week would be held on Monday rather than Tuesday. The Planning Commission's next meeting would be November 17. Planning Commission meetings for December 22nd and January 5th would be canceled. ITEM NO. 7 ANNOUNCEMENTS ON MATTERS THAT THE PLANNING COMMISSION MEMBERS WOULD LIKE PLACED ON A FUTURE AGENDA FOR DISCUSSION, ACTION, OR REPORT None. ITEM NO. 8 REQUESTS FOR EXCUSED ABSENCES None. X. ADJOURNMENT—9:14 p.m. 9of10 Changes proposed by Commissioner Hillgren Planning Commission - November 17, 2016 Item No. 1 b Additional Materials Received Draft Minutes of November 3, 2016 The agenda for the Planning Commission meeting was posted on Friday, October 21, 2016, at 12:23 p.m. in the Chambers binder, on the digital display board located inside the vestibule of the Council Chambers at 100 Civic Center Drive and on the City's website on Friday, October 21, 2016, at 12:09 p.m. Kory Kramer, Chair Peter Zak, Secretary 10 of 10