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HomeMy WebLinkAbout09/17/2009CITY OF NEWPORT BEACH Planning Commission Minutes September 17, 2009 Regular Meeting - 6:30 p.m. ROLL CALL Commissioners Eaton, Unsworth, Hawkins, Peotter, McDaniel, Toerge, and Hillgren— Commissioner McDaniel was excused. STAFF PRESENT: David Lepo, Planning Director Michael Torres, Deputy City Attorney Patrick Alford, Planning Manager Tony Brine, City Traffic Engineer Fern Nueno, Assistant Planner Ginger Varin, Administrative Assistant PUBLIC COMMENTS: PUBLIC COMMENTS City Attorney David Hunt introduced Mr. Torres as the Deputy City Attorney who will be serving the Commission as legal counsel as Mr. Harp is no longer with the City. Mr. Hunt gave a background on both Mr. Torres and himself. Chairman Hawkins then recognized Commissioner Eaton who had received an honorary award from the Planner Emeritus Network. The award recognizes the professional accomplishments and support of the American Planner Association (APA) California Chapter. Commissioner Eaton noted this was a capstone of his career. POSTING OF THE AGENDA: POSTING OF THE AGENDA The Planning Commission Agenda was posted on September 11, 2009. HEARING ITEMS ITEM NO. 1 SUBJECT: MINUTES of the regular meeting of August 20, 2009. Approved Motion was made by Commissioner Peotter and seconded by Commissioner Hillgren to approve the minutes as written. Ayes: Eaton, Unsworth, Hawkins, Peotter, Toerge and Hillgren Noes: None Excused: McDaniel SUBJECT: Port Restaurant & Bar (PA2009-080) ITEM NO. 2 440 Heliotrope Avenue PA2009 -080 NEWPORT BEACH PLANNING COMMISSION MINUTES 09/17/2009 An amendment to Use Permit No. 1566 to allow the following changes in the operational characteristics of the existing restaurant: 1) Expand the existing Denied hours of operation by extending the closing time to 1:00 a.m., and providing lunch service (11:00 a.m. to 1:00 p.m., daily); and 2) Introduction of live entertainment and dancing. The application also includes an off -site parking agreement to allow the continued use of 40 off -site parking spaces on property located at 2865 E. Coast Highway. This item was taken after the third item due to technical problems. Mr. Torres clarified for the record that the applicant's attorney contacted City Attorney's office regarding Section 20.82.060 Live Entertainment. The question was when this Section was adopted. He had responded to that call and let them know, according to the Municipal Code, it looks to have been amended in 1997 and based on a quick search done by Mr. Alford, that there was a previous Code from 1985 and there may be other Codes pre - dating that. At no time did we say that 1985 definitely was the first time this came into effect. Ali Zadeh, applicant, made a presentation noting the following: ➢ Addition of weekend lunch hours service - had numerous requests for this service by customers. ➢ Close an hour later - like to accommodate the patrons so they are not rushed into the street all at once and impact the neighborhood; if their night is prematurely ended, customers have a tendency to stay in the parking lot and have discussion, etc. and create more chaos in the neighborhood; we would get two seatings, one at 7 -7:30 p.m. and it is hard to get a second seating but we want a later time at 10 -10:30 p.m. and we would like the kitchen to be opened to 12:30 a.m. to serve a late night dinner menu, we do not want a nightclub venue; r Noted and explained a proposed color -coded floor plan; discussed conversion of windows to doors as well as ingress /egress to the dining areas. ➢ No dancing - wants optional dancing for wedding dinners and rehearsals. ➢ Community support — letters of support. ➢ Sound test taken at nearby addresses showing noise levels at less than allowed. ➢ Live entertainment — this goes with the property rights; there was jazz and piano at this location by previous business owners for the past 30 years. Presented letters from some previous owners and entertainers testifying to entertainment at this site. We do not want to bother residents with any noise. ➢ Current use permit we have is dated 1977 and the live entertainment regulations start in 1985. Chairman Hawkins stated you heard the City Attorney who indicated the Code had an amendment in 1985; it is not the City Attorney's position that was the commencement of any regulations for live entertainment in the city. Do you have anything else in your presentation that provides substantial right to the non- conforming use you are talking about? Mr. Zadeh referred to one of the letters Page 2 of 21 NEWPORT BEACH PLANNING COMMISSION MINUTES 09/17/2009 property right and continued. ➢ The restaurant is close to residential properties and is surrounded by five commercial buildings. We are not on PCH. ➢ He provided a copy to staff of a newly acquired three year, off -site parking agreement dated today. They have the parking rights at midnight and weekdays to be used for the requested lunch hour service. There will be security at the lots on busy nights or any other required times that may be necessary to minimize the impact of cars and traffic. ➢ There is a check to be sure there are no minors allowed in the bar area as well as checking outside to be sure everything is secured. Verbally we tell people to be quiet and will be posting this on the property in the near future. ➢ There have been no fights in the establishments; has had discussions with the Police Department and have had no major issues minus the large amount of calls of the noise from residents around us. We are requesting records the Police have to clarify any issue. ➢ He then gave a history of local businesses and cited the economics and rights. ➢ Has invested capital into his business and without the extra hour for additional business without live entertainment, could survive, but what kind of business would it be and what do you want in Corona del Mar? ➢ Cost and revenue factors in running a business. ➢ Is open to reasonable suggestions from the public and Commission to get a solution to have a first class operation. ➢ If he does not get what he is asking for, does Corona del Mar need another closed business? We could sell this business to any interested party at any cost, what would replace it? The alternative might not be something very nice. I will sell the business for the best price to whomever. Marilyn Scheer, counsel for the Port, noted: ➢ Did attempt to email the brief to all Commissioners, but apparently it did not get through. She noted also that staff did not get a copy but it was their intent. She then presented hard copies for the Commission and staff. ➢ She stated that she had attempted to determine when the ordinance was enacted. ➢ There has been live entertainment at this facility and questions why it is only recently questioned. Why is this an issue now when it wasn't before? Commissioner Toerge answered it wasn't an issue before because there were no complaints but it is an issue now because there is code enforcement action and there have been complaints. Ms. Scheer noted there has been one primary complaint. Commissioner Toerge answered you will here more. Public comment was opened. Page 3 of 21 NEWPORT BEACH PLANNING COMMISSION MINUTES 09/17/2009 Appearing in opposition to this application: Chris Beauford, local resident noted: ➢ As a homeowner he also has an economic interest. ➢ When purchased their home in 1992 they knew there was a beach nearby, PCH, as well as a small restaurant called "Trees" and made the decision to invest in what the house was worth. ➢ In 2007 when the applicant took over the restaurant, he knew the rules too, primarily the operating hours restriction. ➢ We have dealt with the occasional noise, trash and other issues over the years as it is part of living there. ➢ This application seeks to enhance the value of "Port' but at the same time that would decrease the value of my home potentially when I go to sell it as well as disclose that there may be a nightclub nearby. ➢ Having the place open until 1:00 a.m. and allowing music and dancing (that was in the original application), is a quality of life issue. ➢ He does have to clean up his yard on Saturdays that has litter such as paper cups, glass, etc. ➢ Bought the house knowing there were certain parameters. ➢ When the applicant bought the restaurant, he knew, or should have known, what the parameters were. ➢ Pushing the closing time back to 1:00 a.m. changes the dynamics significantly. Dieter Brunner, local resident, noted: ➢ Not against the restaurant at all, but not with the proposed hour change. ➢ Circulated a petition around to the businesses and the majority of them do not agree with this application due to parking, trash, etc. ➢ He also presented a petition that was circulated to neighbors who do not support changes. ➢ This is a successful business that he asks not be allowed to expand at the expense of the nearby businesses and local residents. ➢ He questions the process of the noise testing and added the residents only complain about the noise when the Port has live entertainment. With the extension of the hours, there will be additional problems especially with the parking. Matt Gudorf, local resident, noted: ➢ Extending the closing time would place this restaurant on par with bars, lounges and nightclubs that have similar closing times. ➢ Port is proposing to have as many as three security guards; there is no plan in place for the health and safety of the residents in the neighborhood once intoxicated patrons leave the establishment. ➢ The current problem of noise in a residential neighborhood from patrons exiting an extended hour later would be increased. ➢ Parking is limited now both during the day and night. There is no parking for the re- opening of the Port Theater. 9 Port Restaurant states they wish to start valet service and have parking meters installed to keep residents from parking long term on their own street (per application letter). ➢ Adding live entertainment would change the operation and affect the Page 4 of 21 NEWPORT BEACH PLANNING COMMISSION MINUTES 09/17/2009 neighborhood. Allowing a DJ and live music changes the basis for visiting the establishment from providing food and drink to providing entertainment and alcohol at an establishment with homes on three sides. ➢ Adding entertainment brings with it a club /lounge atmosphere with patrons outside waiting in line to get in, creating a disturbance and directly affecting the peace and comfort of those residing in the neighborhood. ➢ At the last meeting, he had addressed the Port's continual violation of their current use permit by referencing live entertainment; Port's own staff later in the meeting verified having said entertainment. ➢ As a resident he is asking for a denial of this proposal and that enforcement is made for the current permit. ➢ The extended hours, traffic, and amplified live or DJ music directly affects the peace, comfort, and general welfare of persons residing in the neighborhood. Chairman Hawkins then asked for police staff to speak Detective Bryan Moore with the NB Police Department, noted one thing to keep in mind is after we gave Mr. Zadeh specific instructions on what he could and could not do in terms of his current use permit, we had a pattern of repeat violations. We know that past behavior is a good indicator of future behavior. We ask that this be put on the record and that you take this into consideration during your review. Chairman Hawkins asked about the live entertainment. Mr. Moore noted it was amplified sound and there was a DJ. Commissioner Peotter asked if the further violations were mainly with a DJ there. Det. Moore answered it was for live entertainment and for operating after the permitted hours and some food service violations as well. Food service had stopped prior to 10:00 p.m. when the use permit states food has to be served during hours of operation. Commissioner Peotter noted the permit has closing time at midnight and you would look at that as every customer needs to be out of the facility by that time. Det. Moore answered he had personally observed service after midnight, so not only did they not leave the facility but they served alcohol as well. Commissioner Unsworth asked about observations of the parking area after restaurant hours and how long does it take for people to leave the parking lot. Det. Moore answered that was hard to say; he's been there while patrons were leaving at the end of the night and because they park at all different locations within the area, it is hard to monitor. He said some tend to linger, talk on cell phones and talk with each other as well as talk while they walk to their vehicles, which is a contributing factor to some of the complaints. Page 5 of 21 NEWPORT BEACH PLANNING COMMISSION MINUTES 09/17/2009 Commissioner Eaton asked staff about the live entertainment ordinance. Mr. Torres answered there is a provision that could allow the Planning Director to grant that no more than two musicians with no amplification could be allowed and this is called a "minor change ". Commissioner Eaton asked if there was experience with establishments that operate with that "minor change" live entertainment. Are they less of a problem for enforcement? Det. Moore answered there are very few that do that. The music does not have the same base level or same sound level so there is less problem but it also depends on the location. This could be considered a 'nightclub' operation. Continuing — speakers in opposition to the application: Sally Chesbro, local resident of a duplex, noted her concern for the peace and happiness of her tenants. If the Port is allowed to remain open until 1:00 a.m., it will be extremely difficult for her to find new tenants in the future. With the addition of live entertainment it will make her property less desirable to rent and lower the value of the property as well as other neighboring properties. Dawn Stone, local resident, noted she does not support this application due to parking and noise of patrons arguing and screaming. Closing this establishment later than what was allowed is not a good idea if you are trying to have harmony with the neighborhood. The neighbors do not want this open until 1:00 a.m. They close their kitchen early now, so R is not logical to say you want the place open because they want to serve food later, they will not serve food, they will serve alcohol later. That is my complaint overthis application. Bill Lyle, local resident, noted restaurant patrons park on the street; noise is problematic, especially at night; there are many restaurants on PCH but they close earlier in the evenings; the Port is a restaurant but they want to stay open an hour later and it will then become a nightclub; Bandera's gets two seatings in an evening and they close earlier than the Port now; it is difficult to understand why this restaurant needs to stay open until 1:00 a.m. to get two dinner seatings. Speaking in support of the application: Ann Stonich, resident across from the Port noted the main problem is the crowd lingering in the parking lot until 2 or 3 a.m. The suggestion of security in the parking lot is a good one. Shadan Shemlor, local resident, noted parking is a problem in Corona del Mar and is not just because of the Port Restaurant. It is because they're building their houses, extending the units with two parking spots. The restaurant has paid for their parking as shown by the agreement. There is security and the alcohol service is beer and wine only, it is not a nightclub. Page 6 of 21 NEWPORT BEACH PLANNING COMMISSION MINUTES 09/1712009 the restaurant application. She uses the restaurant for her business seminars. Josh Dodsworth, patron of the restaurant, noted his support of this application and would appreciate the opportunity to eat late at the restaurant. He has not had a problem with finding parking whenever he has frequented the restaurant. This is a nice place to relax with friends. A short recess was taken while a member of the audience was given medical attention. Public comment was continued. Speakers in support of the application: Cheryl Ginn, patron of the Port restaurant, noted her support for the luncheon hours. She noted bottles or glass never leave the restaurant. Jeff Wright, musician, stated he has played at the Port restaurant the last five months on his acoustic guitar. His music is quiet and he is appreciative to be able to play. At Commission inquiry, he noted that his presentation would lose quality if it was not amplified. Nancy McKissic, local resident, noted her support of the restaurant and has been a patron for many years. She has riot encountered any of the problems spoken about and added it is a nice place. Summer Wheeler, event planner at the restaurant, noted there is security on site, dancing is only for weddings or on holidays, and there are not a lot of tables. The use permit does not stipulate that food has to be served until a certain time. At Commission inquiry, she noted food is served until closing time. She explained that the security people make sure there is no overcrowding. Mekaber Mohadjier stated he was employed by the restaurant to help with security during December 2008 up to early part of August with direction to have a presence outside at all times for the purpose of assuring patrons were able to drive and were quiet as they get into their cars. The patrons of the Port did not have bottles or glasses while they are getting into their cars and leaving. We do not allow anything to come in or go out of the restaurant such as red cups or beer bottles. This is not a nightclub. One of the main reasons for that 1:00 a.m. time is so the individuals are not rushed out and ushered out in a timely manner. Based on that we have never had issues as far as fights. Dan Schell, local resident, stated he walks in the area and goes by this place a lot. He has never seen any of the problems that have been presented tonight and it is usually a pretty mellow place. You can not hear music outside the restaurant. He noted this place is an asset to the community. Jason Rockwood, local resident stated his support of the project noting it is an asset to the community with the music. The owner is trying to come up with issues to take care of the noise and with security implemented in the parking lot Page 7 of 21 NEWPORT BEACH PLANNING COMMISSION MINUTES 09/17/2009 would create a calmer time in the evening. Nazinink Kartuzian, local resident and frequent patron of the restaurant. This place is classy and has wonderful music. Chris Wissman of JEC Acoustic consultant noted he had performed a follow -up sound monitoring a few nights ago. One of the tests was taken from some homes and the noise source was a DJ system set up inside the restaurant. The sound readings were the same as those taken in June. Stacy Jents, noted she helps with the accounting and bookkeeping. She added this is her second job and has brought her son to her work and feels comfortable with him there as this is not a bad place. Speakers in opposition of the application: Carol Rohr, local resident, noted: ➢ Sound monitoring was taken at her home. ➢ There is a de- emphasis on food at the Port and they can't manage to get one seating done as they seem to have only hors d'oeuvres. She noted other restaurants seem to be able to have multiple seatings and do not need security to take you out to your car. ➢ Whether there is a dance permit or not, you give people live entertainment and serve booze, they are going to dance anyway. ➢ The type of music that has been complained about is the live DJ music. Angela Kralovec, local resident noted: ➢ There is no on -going security. ➢ DJ music is not the same as guitar music. ➢ If these items are permitted, they would never be taken away. ➢ She has been yelled at, awakened and harassed by Port restaurant patrons. ➢ If they are not complying with the law now, why would they comply in the future? He is allowed to stay open until midnight but stays open past that. If given more latitude and allowed to stay open until 1 a.m., you know it will be opened beyond that. Dave Stone, local resident, noted he is against this proposal due to litter, noise and parking problems. He has to disclose the proximity of the restaurant to his duplex when rents it out to new tenants. Mr. Zadeh noted there are some issues and that he has been working with the City for the past three months. The neighbors are important and the houses and businesses are close together and we need to work issues out through compromise. Chairman Hawkins asked about the new parking agreement that was entered into today. Do you have a copy of that agreement for us to review? A copy was made available. Page 8 of 21 NEWPORT BEACH PLANNING COMMISSION MINUTES 09/1712009 Commissioner Peotter asked if the applicant would consider shutting down the restaurant earlier on Sunday through Thursday nights, such as 11:00 p.m., in order to be open until 1:00 a.m. Friday and Saturday nights. Ali Zadeh answered he would like to see the economics of it. He wants his business to survive as right now the business is losing and the 1:00 a.m. is to have the extra opportunity, maybe the restaurant will serve until 12:30 a.m. and the last 30 minutes is done with patrons leaving. Chairman Hawkins stated the answer to the question is either yes or no. Open until 11:00 p.m. Sunday through Thursday, and then Friday and Saturday until 1:00 a.m. Why don't you think about that? Ali Zadeh noted this has some merit, but he has to address the dynamics of the restaurant. He wants to do something good for the business. Security is in the parking lot and in the restaurant and that helps. He stated that there are no placards regarding city parking available in Corona del Mar. Valet parking is out of the question due to the drop off being in a public area. We want to serve food until 12:30 a.m. The remodel will allow this as one area is less popular and the other area becomes more popular. We want to create a flow and make the areas as one. Chairman Hawkins noted the building portion is not part of the application tonight. That building portion has to be addressed through the Building Department. Ali Zadeh answered he wants to improve everything. Whatever needs to be done to diffuse the noise and disturbance to the neighborhood, the City can help a little bit. This is a neighborhood issue rather than anything else. Marilyn Scheer, representing the applicant: ➢ Stated what is here is a balance of interest. ➢ This restaurant is in a commercial district and deserves commercial rights. ➢ The patrons have rights and have freedom of expression and the right to assemble. ➢ There are about 25 people and with dependents there are 100 who depend on the applicant for their livelihood. ➢ Mr. Zadeh pays taxes and there are economic arguments to be made as set forth in their brief. ➢ Mr. Zadeh is trying hard to work with his neighbors and he needs a break to keep going in this business as this is a very trying economic times. Ali Zadeh noted the Port takes care of itself. We want to do something for the neighborhood. But, who is going to be next; everyone's rights need to be protected. The notion of a nightclub with dancing is not suitable in this location. Chairman Hawkins then discussed the parking agreement rights. There are no exclusive rights listed. Additionally, it says not withstanding the expiration date, this lease could be terminated by either party at their sole and absolute Page 9 of 21 NEWPORT BEACH PLANNING COMMISSION MINUTES 09/17/2009 discretion with a thirty-day written notice. This is not a three -year deal; it can be terminated on thirty day notice. Ali Zadeh answered there is no attendance there now; we have a relationship with the same gentleman who has given us parking there for the last three years. Public comment was closed. Commissioner Peotter asked about the proposed changes inside the building discussed tonight, the use permit would not restrict that today? Mr. Alford answered that the current use permit does require that floor plans be in substantial conformance with those approved in 1977, from what I see the changes are not that substantial so they would be in substantial conformance. Commissioner Peotter asked staff if the applicant wanted to serve lunch at an earlier time, the existing conditions of approval would allow him to, upon showing parking for that day -time use, staff would allow service Saturdays and Sundays if parking is allowed. He then referred to hand - written Page 29, Condition 4. It seems he has that flexibility. ➢ There is an issue of'grandfathered' in. ➢ Does not agree with an extension of hours especially Sunday through Thursday. ➢ If there was some give and take on the earlier days of the week, possibly later hours could be granted Friday and Saturday. ➢ Since you can not come up with an answer tonight. Motion was made by Commissioner Peotter and seconded by Commissioner Toerge to deny the application as written. Commissioner Eaton noted the applicant's attorney has put this memo on record and so asked for an opinion from counsel. Mr. Torres, noted the live entertainment ordinance was established 1949. He does not agree that they have a non - conforming right to entertainment. Chairman Hawkins asked about the document. Mr. Alford answered it was in the Section in the Municipal Code dealing with establishments of live entertainment and appears the origin date of that ordinance is 1949. Commissioner Eaton then asked about free speech issues with the limitation on hours of operation. Mr. Torres noted he does not agree with that assertion. Any first amendment activity, even if it was protected, is subject to reasonable time, place and manner restrictions. An hour restriction on when a business can operate or what type of activity they can have, is certainly allowable under the cases interpreting the First Amendment. The applicant asserts that there are First Amendment rights at stake, but they provide no back up for that. Based on Page 10 of 21 NEWPORT BEACH PLANNING COMMISSION MINUTES 09/17/2009 we have here at this time he does not agree with the applicant. Chairman Hawkins asked what sort of speech they have. Mr. Torres answered it is not political speech, what they assert from public comments is the right for people to assemble. Of course, they can assemble up until 12:00 a.m. now as it is. Assuming this is First Amendment activity it would be subject to reasonable time, place and manner restrictions. This is allowed by the courts to be hours set by the City, which is currently 12:00 a.m., that's allowed. Commissioner Eaton noted: ➢ It was suggested the conditions appear to allow the weekend hours because the parking agreement allows for this. Is it sufficient to make this assumption? Weekend hours are reasonable in light of the parking agreement even though it is not an exclusive right to use. ➢ I don't think weekend lunch hours would be that much of a problem in the neighborhood and I don't think that there will be that many users of the commercial buildings will be using that. ➢ He would be inclined to allow weekend lunch hours if the existing condition wasn't broad enough to assure that. Chairman Hawkins asked for clarification of the motion. Commissioner Peotter stated his preference is to not adjust or modify the existing conditions of approval at all. Staff would have the ability to grant the lunch hour service. Chairman Hawkins noted there were residents who were very concerned about the weekday use; their testimony noted concern of the daytime noise. Mr. Lepo, referring to the 1977 conditions of approval, noted the provision is requiring the City Attorney's explicit approval regarding a parking agreement for daytime lunch hours. Typically there is a condition for a Planning Director approval, the parking agreement submitted could be the basis for the finding. Chairman Hawkins noted we have just received and read this document. Does it provide the safety required by Condition 4? Commissioner Peotter answered it is staffs call as it deals with the technicalities of whether the parking agreement is sufficient. The Planning Commission in 1977 already said if parking was available it could be allowed. Mr. Lepo noted you still need to approve a use permit with conditions relating to the need to replace that parking, should it go away. If you have to do that, you will need to make sure there is provision for okaying that sometime in the future so staff could do it. Commissioner Peotter stated his motion was to deny the application and not modify the existing conditions. Condition 3 talks about if they lose their parking spaces, as long as they have 40 spaces somewhere, I'd rather leave Page 11 of 21 NEWPORT BEACH PLANNING COMMISSION MINUTES 09/17/2009 that in the realm for staff as far as how that works. Commissioner Eaton noted his agreement of the motion as to the entertainment provision. Parking may be tenuous and is concerned if the Port Theater becomes a restaurant, then they may start in a bidding war on the same parking. There is a condition existing that this item has to come back to us if they happens. He asked if the parking does provide the 10:00 a.m. to 2:00 p.m. on the weekend hours, our sense of the motion is that would be allowed. Commissioner Toerge noted: ➢ Quality of the applicant is not what we consider. This is a land use decision and the application and use permit runs with the land. ➢ The applicant himself indicated he has the freedom to sell the business anytime he wants. ➢ We are looking at what is allowed and not the personality of the applicant. ➢ This gentleman is asking us to expand his rights. ➢ Sensitive to the difficulties we all face in the economy today; but economic difficulty does not justify compromising sound planning principals. If the City Council wants to compromise what good planning is for economic issues, that is their choice why they were elected. ➢ As the Planning Commission, it is our responsibility to recommend to the Council and community good sound planning. ➢ Applicants never come in to downsize their conditions if the economy is good, so for us to compromise sound planning for a temporary economic situation is not supported by me. ➢ There has never been a permit for live entertainment to occur there. That's not to say it hasn't occurred there. ➢ Our system is complaint based and when the restaurant was Mistral's or Trees, the complaints did not rise to the level that Code Enforcement or the police got involved. Yet, for this applicant they have. The fact that there has been live entertainment but no remedial action taken suggests that this applicant is not quite as considerate as he would like us to believe. ➢ The in -place security does not seem consistent with how a restaurant operates. That is more of the way a bar operates. ➢ Technically, there is a requirement when we allow off -site parking arrangements to be made in the City; they have to be made permanent. This applicant is proposing to spend a lot of money on the basis of granting this permit and we want to be sure that he has the ability and right to recuperate his investment. If he loses the parking arrangement then the use gets restricted again, that is why it needs to be permanent parking. A three -year arrangement with a thirty -day cancellation clause is not permanent. ➢ The restaurant is an asset to the community, nobody is removing it. ➢ He supports the motion of denial. Chairman Hawkins reiterated the motion is staff recommendation for denial of the application. Page 12 of 21 NEWPORT BEACH PLANNING COMMISSION MINUTES 09/17/2009 Page 13 of 21 Ayes: Eaton, Unsworth, Hawkins, Peotter, Toerge and Hillgren Noes: None I Excused: McDaniel rrr SUBJECT: Goldring Residence (PA2009 -070) ITEM NO. 3 309 Lindo Avenue Approved The application is for a proposed single -unit dwelling with the following deviations from the Zoning Code requirements: 1) A request for a variance to exceed the maximum floor area limit by approximately 400 square feet and a waiver of the open space requirement. 2) A modification permit to allow the dwelling to encroach 10 inches into the required 3 -foot side yard setback and 1 foot into the required 10 -foot front yard setback. 3) A use permit to exceed the 24 -foot height limit by approximately 3 feet with the midpoint of the proposed pitched roof. Fern Nueno, Assistant Planner gave an overview of the staff report adding that staff could not support the project as proposed, but could support a modified scope of work. Commissioner Eaton asked if staff had spoken to the applicant and architect advising them if a less aggressive approach could be taken. Ms. Nueno answered yes, that conversation did occur. The homeowner feels the lot is constrained and wanted to apply for this even though it will be a tear -down with a new house built. They are prepared to reduce the scope of work, if necessary, if the Planning Commission is not able to come up with facts in support of the findings. Commissioner Eaton noted this lot configuration is representative of the discussion by the Committee in reviewing the new Zone Code. Could this proposal be compared to the new proposed Zone Code? Ms. Nueno answered it was reviewed with the draft Code version and found it would be comparable to what is allowed. She went on and discussed the ramifications with buildable area and re- design. Both the applicant and architect had read through the current and draft Zone Code but want this application now. They could modify their proposal and comply with the current Code. Chairman Hawkins asked about the Design Guidelines that were incorporated in the updated General Plan. Ms. Nueno noted this proposal has been reviewed with these guidelines and meets most of them but there is an issue of long, unarticulated exterior walls. Discussion continued on the design. Commissioner Unsworth asked if the third story was moved back towards the alley in accordance with the new Zone Code, would they be able to have the requested height. Page 13 of 21 NEWPORT BEACH PLANNING COMMISSION MINUTES 09/17/2009 Ms. Nueno answered yes, but they would have to reduce the square footage by about 230 square feet with additional setbacks for the third floor. Discussion continued on the gains or losses of articulation size and locations and how it relates to current and proposed code. Commissioner Hawkins asked about the tandem garage and if the enclosure counts towards the square footage. If there was a carport closest to the alley, would they gain square footage? Ms. Nueno answered yes it counts towards the square footage, and if a carport, it gains approximately a little less than 200 square feet. Mr. Barry Walker, architect representing the applicant, noted: ➢ This is a tiny lot with only 16 feet across the back. ➢ This design was started under the new code and the applicant decided it was taking a lot longer than hoped and so they made this application design under the existing code. ➢ They are asking for more square footage and would like a garage and carport situation to ease the process. ➢ The roof height issue was predicated on the code revision at a 29 -foot ridge to 4 and 12 -foot roof pitch in the.original proposal. We are not looking to use that but are asking for it. We can run the roof down to meet the 24 -foot. ➢ The ten inches in to the sideyard setback allows more room on the carportigarage side for ancillary equipment that would otherwise end up outside. We are looking to enclose as much as we could as there is not a lot of useable square footage there. ➢ Moving portions of the third floor hinges on the stairs. ➢ The front yard setback encroachment of one foot is based on the house to the south and up and down most of the street that have nine or ten feet or less front yard setbacks. ➢ Because of the odd shape of the lot with narrowness at the back, it creates on the second floor longer hallways than would traditionally be included in a plan such as this. We could reduce square footage out of it which would be accomplished by setbacks in the exterior facades. It would give articulation. The odd angle of the lot will drive how that would happen. ➢ Gaining square footage by creating offsets could be done but the design could be compromised. ➢ The bulk of the building is going to be the same even if the height issue is denied. It will still be that long. Commissioner Unsworth asked about the midpoint height and interior floor space. Mr. Walker answered the Building Code only recognizes five feet and above and discussed dimensions of an activity room with various plate heights. Page 14 of 21 NEWPORT BEACH PLANNING COMMISSION MINUTES 09/17/2009 Mr. Walker answered it is a washer and dryer in a closet; hot water heater to be placed behind another piece of equipment; there will be solar panels on the roof with imbedded heat in the floors and there will be a mechanical closet on the second floor that will have a small boiler and water heater and radiant heat source. He discussed what he hopes to do with these two areas. Commissioner Toerge noted the proposed square footage is 2,268 that includes the two garages. By turning the outside garage into a carport that number would come down to approximately 2,100 square feet. Chairman Hawkins asked if the carport idea was acceptable. Mr. Walker answered it started out that way, but now we know it has to be an enclosed garage and building staff have advised that no openings are allowed if you are three feet or less to the property line. That means that side could not be opened as a carport. Anything over three feet to five feet, you are allowed to have 25% of the wall area of that one floor open, so that could be a carport. We could create a 15'% or 16 foot long opening in the side of the building that would effectively make it a carport and that would meet fire resistant standards. We rejected this initially because we wanted the whole thing as carport. If we enclose it for ten inches we thought we would ask for it. Commissioner Toerge noted a garage is a more productive use of the space than a carport. Mr. Walker agreed and said they would rather include it but if we have a garage we have to include the square footage and would rather use that square footage productively for the family. Claire Goldring, applicant, noted they started out wanting the carport and then were told we had to have a garage. The other main issue is they wanted to do solar, which is why they have put heating in the floor and will not have any air conditioners. The third floor is to put the solar on the slanted roof. If we reduce the amount of room up there, we have less solar panels. Our neighbors on both sides and across from us approve of what we are proposing. At Commission inquiry she noted they purchased the home 16 years ago and that it was built in 1912. Public comment was opened. Don Beatty, local resident noted his lot is a mirror image of the applicant's and agrees that the lot configuration is problematic. He has no objections and supports this application. He presented a note written by the neighbor across the street in support of the project. Public comment was closed Commissioner Unsworth noted: ➢ The findings could not be made for the variance to add floor space but You can make the findings on the open space requirement. Page 15 of 21 NEWPORT BEACH PLANNING COMMISSION MINUTES ➢ On the modification, we can not make the findings for the front yard setback but we can make the findings on the side yard setback. ➢ On the use permit we can not make the findings for the height. The requisite findings for the use permit could be made, I would say, provided that the ridge height of approximately 28 feet 6 inches is not allowed to exceed the 26 -feet in length as provided for in the current application, the visual open space and view are greater than what they would be if a 29 foot ridge line were to extend the maximum of 57 feet. You are really comparing what they want to do to the theoretical concept of what might be allowed. I think this finding could be made and the increase height in the midpoint of the roof since it does not impact the ridgeline, and the increase in the midpoint and any negative impact it may have on the open space is outweighed by the shorter ridgeline of the 28 feet 6 inches. ➢ The next finding, the increased height of the midpoint would result in a more desirable architectural treatment in that it does provide additional interior headroom. I believe the finding can be made because the applicant's request for additional floor area would still be denied even with the additional height. ➢ If we can somehow manage to get a carport, they can pick up 168 square feet of living space, so they would lose the difference between the 400 requested and the 168, but they would have a better room upstairs with the additional headroom. Motion was made by Commissioner Unsworth and seconded by Commissioner Peotter to adopt the resolution as currently drafted except that on handwritten page 16 under Use Permit in the second Recital A read, "A use permit to exceed the midpoint height limit of the roof can be approved. Provided the ridge height of approximately 28 feet 6 inches is not allowed to exceed 26 feet in length as provided in the current application. The visual open space and the views are greater than what they would be if a 29 foot ridge line were to extend the maximum of 57 feet allowed. The increased height in the midpoint of the roof does not impact the ridgeline and the increase in the midpoint and any negative impact it may have on the open space is outweighed by the shorter ridgeline." Delete the second paragraph of Recital B and in its place put, "The increase height in the midpoint results in a more desirable architectural treatment in that it provides additional interior headroom." Recital D in the second paragraph, "This finding can be made because the applicant's request for additional floor area is being denied." Commissioner Toerge noted: ➢ Staff represented the Code well and he appreciates the staff report that works within the Code. ➢ The architect has presented the issues involved. ➢ We can not anticipate what the new code will be and there is still a lot of review to go through on it. ➢ There is a hardship with this lot due to the shape and there are special circumstances that deserve compromise. ➢ The project could be around 2,100 -2,110 square feet so it would be in the same building to lot relationship as the other lots, about 1.3 times 09/17/2009 Page 16 of 21 NEWPORT BEACH PLANNING COMMISSION MINUTES 09/17/2009 the gross square footage of the lot is what the rectangular lots are getting. That is about 2,100 square feet. ➢ The difference between that 2,100 square feet and what the applicant is asking for is merely a garage door and a couple of openings. ➢ There is a state law regarding building solar panels on top of a roof that allows you to exceed height restrictions. We have no jurisdiction over that. ➢ If the roof is placed at an angle to best serve the solar service and recognizing a foot or two at an eave is not significant I am in support of this. ➢ The unique circumstances of the lot allow me to make the findings for the modification to the variance and for the expanded square footage. Substitute motion was made by Commissioner Toerge and seconded by Commissioner Peotter to grant the variance to allow a new single unit building to exceed the maximum square floor area by approximately 400 square feet and to allow less than the minimum required open space; a modification permit to allow the structure to encroach ten inches into the required three - foot side yard setback and one foot into the required ten -foot front yard setback and a use permit to allow the midpoint of the pitched roof to exceed the 24 -foot height limit by approximately three feet. Commissioner Eaton noted this is an odd - shaped lot but he has a problem with the square footage. The applicant has prepared his justification that he should get what a normal lot does, but it isn't a normal lot. It is a smaller lot that is presumably not worth as much due to the size. The floor area ratio is based upon the size of the lot, not the particular angles of the lot. A variance for floor area is problematic and there ought to be flexibility with the other provisions but not on the floor area. He suggested that the Commission continue this item and let a revised design be prepared so staff can see it and then we can see it with possibly a modification on the third floor and converting the garage into a carport. Under those circumstances, maybe staff could support the application. I do not agree the floor area variance is warranted. Commissioner Unsworth noted his agreement with Commissioner Eaton that the floor area should be governed by the lot size. His intent was to give as much headroom on the third floor. Commissioner Toerge noted a rectangular lot can get 2,700 square feet but this property is smaller. A standard lot can achieve 1.3 times its gross square footage by adhering to our codes. The subject lot can only get to 1.1 percent of coverage. By creating parity, you get 2,110 square feet, which is only enclosing the garage difference between the application request and what would be consistent with the other lots. The question is, is the garage worth enclosing for 160 square feet or a carport, which would be a better product? Commissioner Peotter noted his agreement with Commissioner Toerge. The unusual shape of the lot forces them to go to a garage rather than a carport. The distance to the property line with 16 feet in the back causes enclosures Page 17 of 21 NEWPORT BEACH PLANNING COMMISSION MINUTES 09/17/2009 supporting the increase in square footage as well. Commissioner Unsworth, referring to Page 3 of the staff report, the difference between the maximum square footage permitted of 1,878 square feet and the request to construct a 2,268 square foot dwelling, how did we get to the 2,110? Commissioner Toerge then explained his process which gave him the floor area to land area ratio of 1.28. He noted the land contours, setbacks and negative results; gross square footage to gross lot area for a balance. The lot is smaller and does not deserve 2,688 square feet of entitlement as a rectangular lot does. It does deserve the same percentage. He supports the concept of the project re- design. Ms. Nueno noted she had done similar calculations. Her result was the subject lot is approximately 75% of the typical lot in the neighborhood. The strict floor area to land area ratio of the typical lot is 1.257. Giving that 1.257 to the subject lot it would be 2,072 square feet, which would be the strict floor area to land area ratio. Chairman Hawkins noted findings need to be made to grant the variance, modification and use permit. He asked staff if they could prepare these findings or if a continuance would be best. Ms. Nueno noted the staff report shows the required findings for all three applications starting on Page 4. At Commission direction, she will come back with a draft resolution in support of the findings. Commissioner Toerge noted he would help to draft the findings for staff from the staff report. He noted: Variance: ➢ Special circumstances applicable to the property, particularly the shape of it, allow the first finding. ➢ The granting of the application is necessary for the preservation and enjoyment of the substantial property rights of the applicant based upon the calculations offered verbally allows this finding that it is consistent with substantial property rights of the applicant. This would be the 2,110 or 2,074 square footage. ➢ The granting of the application is consistent with the purpose of this code and will not constitute a grant of special privilege; the finding can be made because of the unique size and shape of the lot. ➢ The granting of the application will not, under the circumstance of the particular case, materially affect adversely the health or safety of people can be found as the neighbors support this application and also the size and shape of the lot. Chairman Hawkins asked staff if they are comfortable with the findings articulated in order to draft a resolution to address those in connection with a Page 18 of 21 NEWPORT BEACH PLANNING COMMISSION MINUTES 09/17/2009 variance. Staff agreed. Commissioner Toerge continued: Modification Permit • Granting this application is necessary due to practical difficulties associated with the property; this finding can be made because of the unique shape and configuration of the lot. • In accordance with the provisions of Chapter 20.93, the requested modification will be compatible with existing developments in the neighborhood. This finding can be made based upon the support from the neighbors and the unique size and configuration and many of the adjacent properties have a 9 -foot front yard setback. • The granting of this Modification Permit will not adversely affect the health or safety of persons residing in the neighborhood. This finding can be made due to the supporting testimony, and an encroachment of one foot into the setback would not be detrimental to other dwellings along the same side of Lindo Avenue as other residences encroach as well. Commissioner Hawkins suggested adding in the first finding, the hardship notation of lot tapering to sixteen feet. He then suggested using Commissioner Unsworth's draft of the findings necessary for the use permit. Commissioner Unsworth noted A, B, and D related to them as they are listed in the resolution as opposed to how they are listed in the staff report. As there will be more floor area granted but not what is being requested °D° will have to be edited based on Commissioner Toerge's calculations. The use permit goes to the height and the increased floor space goes to the variance. Commissioner Eaton noted his concern with the second variance finding. It was based on the bulk calculation provisions which justified 2,100 square feet +. The motion seems to approve the entire request for 2,268 square feet and if so, is there a conflict? Commissioner Toerge answered that 2,268 square feet would be better but it is difficult to get those findings. Therefore, it did get pared down to 2,078 square feet (parity number based upon lot coverage). Chairman Hawkins noted that was part of the motion. He then asked staff if they had any concerns as our proposal is for a slightly pared down version. Mr. Torres added that if the Commission would like to continue this until the next meeting, it would give staff the opportunity to put together a resolution with the findings provided tonight and give the applicant an opportunity to provide revised plans to pare it down to the 2,078 square feet. Chairman Hawkins noted a submittal of revised plans could raise additional issues. He then asked the architect if 2.110 square feet was acceptable and if Page 19 of 21 NEWPORT BEACH PLANNING COMMISSION MINUTES 09/17/2009 he would be able to provide revised plans. Mr. Walker answered yes, but questioned if it is two garages or a garage and a carport? Chairman Hawkins stated that was not part of the motion. He then conducted a straw vote on carport or garage issue resulting in four votes for two garages. We have general agreement and have provided sufficient direction in making the findings; the applicant has agreed to the downsized proposal and will submit those plans. Mr. Walker noted he would submit those plans in two weeks. Mr. Lepo clarified that the Commission wanted to see the revised plans in comparison to the revised resolution. Chairman Hawkins noted he would delegate that to staff. Mr. Lepo agreed. Vote on Substitute Motion Ayes: Unsworth, Hawkins, Peotter, Toerge and Hillgren Noes: Eaton NEW BUSINESS: City Council Follow -up — Mr. Lepo noted the appeal on Chronic Taco will be coming to the next Council meeting. There were no other items. Planning Commission reports. — Commissioner Toerge reported that the GP Implementation Committee met and reviewed the definitions and administration. The next meeting is September 301°. Commissioner Hawkins reported that the EDC met yesterday and discussed the signal synchronization program. Announcements on matters that Commission members would like placed on a future agenda for discussion, action, or report — Chairman Hawkins invited those who are available to meet after the meeting October 8th to honor Mr. Harp who recently left the City. Requests for excused absences —none ADJOURNMENT: 10:25 p.m. CHARLES UNSWORTH, SECRETARY CITY OF NEWPORT BEACH PLANNING COMMISSION Page 20 of 21 NEWPORT BEACH PLANNING COMMISSION MINUTES 09117/2009 Page 21 of 21