Loading...
HomeMy WebLinkAbout11/06/19970 Planning Commission Minutes N&ember 6, 1997 Regular Meeting - 7:00 p.m. CITY OF NEWPORT BEACH Present: Commissioners Fuller, Ridgeway, Selich, Kranzley, Gifford, Adams, and Ashley - all present STAFF PRESENT: Sharon Z. Wood, Assistant City Manager, Community and Economic Development Patricia L. Temple, Planning Director Robin Clauson, Assistant City Attorney Rich Edmonton, Development Services Manager Ginger Varin, Planning Commission Executive Secretary Niki Kallikounis, Planning Secretary L.i Minutes of October 23,1997: Motion was made by Commissioner Selich and voted on to approve, as written, the October 23, 1997 Planning Commission Minutes. Ayes: Fuller, Ridgeway, Selich, Kranziey, Adams, Ashley Noes: none Absent: none Abstain: Giff ord Public Commentx none Postina of the Agenda: The Planning Commission Agenda was posted on Friday, October 31 1997 outside of City Hall. 0 Minutes Public Comments Posting of the Agenda • City of Newport Beach Planning Commission Minutes November 6, 1997 SUBJECT: The Cannery Restaurant - Continued pub hearing (Western Canners Company, Inc., applicant) 3010 Lafayette Avenue Use Permit 1521/1684 (Amended) Request to allow a change in the operational characteristics of an existing restaurant facility (Use Permit 1521) to permit the addition of a dance floor on the second floor. Also included in the application is a request to allow the use of amplified sound in conjunction with the permitted live entertainment, which is currently prohibited by the conditions of approval of Use Permit 1684. Ms. Temple noted that since the last Planning Commission meeting, meetings between the Planning Department, the applicant and Police Department regarding specifics of conditions of approvals have been held. As a result of those meetings, the condition regarding the proposed security plan has been amended, a condition requiring the closing of the south entrance has been deleted and an additional condition has been included requiring that the Use Permit be reviewed • by the Planning Commission in June 1998 and in January 1999. However, just prior to this meeting a representative of the Police Department has requested that the review be done at the second meeting in July to allow for some portion of the summer season to be experienced for the first review. Since the preparation of the staff report, the City Attorney's office has been reviewing and further refining the suggested condition so Ms Clauson will review with you the revised language before you. Ms. Clauson, Assistant City Attorney, referencing her hand out on the security plan explained that this Exhibit A, marked .with an R in the corner denoting revised, offers revisions to Finding No. 4 and Condition No. 8. The proposed amendment would give the applicant the option to pay for additional police services to satisfy the requirements of Condition 8d and 8e. If the Commission chooses to adopt this proposed revision, the option would allow the police department to assign an additional bicycle officer to the area to provide supplemental law enforcement services for those limited times when demand for law enforcement is increased. Specifically, the officers could be assigned during the hours of highest demand to patrol for problems such as loitering, public drunkenness, vandalism and excessive noise. This type of condition has never been proposed before, has been limited to the applicant's option, and requires prior Council approval of the plan as well, and it requires compliance with any subsequently adopted Council policy that might apply. These last • minute changes just came up and we have come up with suitable legal language to address some of the expressed concerns. INDEX Item No. 7 UP No. 1521 A & UP No. 1684 A Approved • City of Newport Beach Planning Commission Minutes November 6, 1997 Commissioner Ridgeway asked about changing the wording to "in or about ". Ms. Clauson answered that the condition this option is intended to handle is 8e, to require a program to discourage patrons from loitering and engaging in public nuisance behavior, the off -site parking area and those areas immediately adjacent. The intent is that there needs to be a connection in the problems that emanate from the patrons of the restaurant. This condition is not meant to respond to all the problems that result in the area. Commissioner Adams pointed out that even with paying for additional police enforcement, the applicant must not think he is not responsible, i.e., crowd control in and around his front door and on his property. Ms. Clauson answered also in that condition is stated, "....Such provision shall not relieve the applicant from taking reasonable steps, independent of the Police Department, to address the issues of crime and nuisances related to the applicant's project....:' She added that this language is similar to special event type opportunities that sometimes . hire additional police officers. This arrangement is an option of the applicant for perhaps, in lieu of, or as partial placement of, private security. Public Comment was re- opened from the previous meeting at which this was discussed. Captain Jacobs, City of Newport Beach Police Department commented on the "precedent" issue of hiring extra police officers. It is done frequently for special events such as running events, chili cook - offs, etc. The language that the Chief of Police approved is very specific, that it is just for certain time periods, under certain conditions with approval of the City Council and the Police Chief and not just a general assignment of an officer in the area. Commissioner Selich asked about the justification for limiting the amount of musicians to three. Mr. Alford answered that the number three was the original number stated in the original Use Permit that approved live entertainment. Mr. Bill Hamilton, President of Western Canners, 3010 Lafayette Avenue spoke. The Cannery has been in business for the past 25 years under the some owners and operators. It has been operating under two permits, 1521 as a restaurant and a bar and 1684, a permit to provide live entertainment. The Cannery has been a creator and supporter of is many important civic events in Newport Beach such as, Clean Harbor 3 INDEX • City of Newport Beach Planning Commission Minutes November 6, 1997 Day, Taste of Newport, Birthplace of the Hamilton Water Weight which the City and Sea Scouts operate to clean up the harbor, etc. It has been a generous contributor to a great number of charitable foundations, fund raisers, and a significant contributor to Newport Beach revenue through taxes, licenses and service fees. The future is uncertain for a number of reasons. Our ability to survive is questionable, with all the new competition, many with dancing, and some of the older restaurants having dancing and entertainment permits. Why, because they feel they need it to stay in the business, and that is why I am here tonight. There is a deteriorating business climate on the peninsula, with bad press and the Arches Bridge construction. The lunch business has been off 5017o in the last few weeks due to this. An added attraction such as dancing would give the Cannery the opportunity to stay competitive. The Cannery deserves a chance to test this program with all the safe guards that have been built into the recommendations. The area is zoned for this type of operation. The Cannery can control interior activity from a personnel standpoint and from a noise control standpoint. Working with the police department, a program is being devised to mitigate the exterior noise and noise in the street. It is not fair to hold the Cannery responsible for everything that happens in Cannery Village. He concluded his comments by asking for a chance to try this out stating that if it doesn't work then he will probably retire. The City has little to lose by going along with this experiment for a six to twelve month period and maybe save the Cannery for future operations. At Commission inquiry, Mr. Hamilton stated he has read, understands and agrees to all the conditions and findings of Use permit No. 1521/1684 Amended. Commissioner Selich asked the applicant if he was satisfied with the number of three performers limitation. Mr. Hamilton stated he did not understand this. If there is a noise limit, it should not make any difference whether it is a recording of a 100 piece band or five trumpet players. The concern should be noise level at a certain distance from the restaurant. Chairperson Kranzley, addressing the audience, asked that comments be confined to the changes to the conditions as reported in the staff report. He requested that there be no repetitious testimony from the meeting that this item was first heard. Mr. Don Gregory, 601 Lido Park Drive - commented he had never seen the changes until this evening, therefore, he could not address comments to the changes. He continued stating this is an unfair burden to put on the area residents who will be the recipients of this • approval. INDEX • City of Newport Beach Planning Commission Minutes November 6, 1997 Chairperson Kranzley stated there is only one change to tni and that was to Item 8 which was read earlier this evening. staff Mr. Gregory spoke in opposition as follows: • restaurant versus bar definition • cause a great deal of noise • requirement of permits • health and safety of neighborhood will be compromised • bicycle policemen will not be effective • no security protection to control defecation, urination, gathering on lawns on the harbor side, screaming, fist fights • sound will pour out of the facility and will disturb peace of the neighborhood • this is a mixed use - each with equal rights • residents will suffer • only dance facility in residential area • property values will go down • keep the status quo, do not let it accelerate • the Cannery has been cited for noise and is still in business operating under an expired permit • Commissioner Gifford stated that at the last public hearing there was a staff report and a new staff report was prepared for this public hearing. She asked Mr. Gregory if he had the opportunity to review the new staff report, to which he answered, no. She stated that this report has been available and is available in the foyer. The comments about revisions that just occurred this evening related to a particular paragraph on one page (handwritten page 9) of this entire new report. You can pick up a copy and take the opportunity to look at it during the discussion on, and before, the final vote of this item. Mr. Victor Yak, 611 Lido Park Drive - spoke in opposition to this application. He observes practically a full parking lot at lunch and at dinner times. Now, it is proposed to change the operation in order to save the business. The residents live with the status quo and don't want the Cannery to go away, but do not want the use enhanced. If the Cannery becomes a nightclub, it will ruin its reputation. The Cannery is responsible for many fine community activities. The Planning Commission would do an injustice to the people who live across the street along Lido Park Drive if they grant the enhanced use. The residents were there ten years before the Cannery Restaurant, so we know it is a multiple use neighborhood, it always has been. The residents are asking that you not allow a nightclub in this area, rather, keep the status quo. • Mr. Rich Thatcher, 611 Lido Park Drive - spoke as a resident directly across from the Cannery. Since the last meeting he has kept a record INDEX •City of Newport Beach Planning Commission Minutes November 6, 1997 which documented some of the concerns that were expressed Tonrgm by previous speakers. These conditions are, yelling and noise of all sorts. These noise levels seem to have escalated since he moved in. The Police Department has been called, but they are busy with emergencies. He concluded stated that the real issue is trying to address the current noise levels before higher noise levels are added. Commissioner Gifford expressed appreciation for his constructive approach to bring objective facts to Commission's attention and asked him to go through them. Mr. Thatcher stated the following: 10/17/97 - 1:30 a.m. - loud yelling coming from the parking lot 10/18/97 - 2300 - loud yelling and a boat took off from the Cannery dock 1 1 /l /97 - 1:32 a.m. - loud yelling coming from the parking lot, called the police and was put on hold, hung up and called again and was told they were working on an emergency. 11 /6/97 - 2256 - boat left the Cannery with loud noise • These noises are spikes and are very loud. When they occur at night, you are brought up out of bed. Commissioner Gifford asked how you would link an increase, for example in the boat noise, to the changes that are being proposed. Do you feel a night club would draw more boats. Mr. Thatcher answered that if he was running the night club, he would want to attract boaters but keep it as quiet, as possible for the comfort of the residents in the area. Commissioner Gifford stated that one of the things Commission is dealing with are the things that the residents are living with already and the question, will it become greater, for example, the boats. She then thanked the speaker. David Fazelle, 611 .Lido Park Drive, 6F - spoke in opposition to this application due to the level of noise. During the summer, with no air conditioning in the building, the doors and /or windows are left open. The noise is very disturbing to quiet and sleep late in the evening. He concluded asking that this application be denied as there are many people who will be affected by it. Commissioner Adams asked that the residences be shown on a map it • relation to the Cannery. He stated that many businesses in the arec have made investments based on the fact they have entitlement tc INDEX City of Newport Beach Planning Commission Minutes November 6, 1997 stay open until one or two o'clock in the morning. Ray Orlin, 601 Lido Park Drive - spoke in opposition to this application for reasons stated above. Pam Plotkin, 509 31st Street spoke in opposition to this application expressing her concerns of vandalism. The store /residence is diagonally across from the Cannery, so the noise level is not significant except when people walk between the alley and on the street. The weekly vandalism is very costly because of the petty theft and damage. Since the last meeting the vandalism and noise level around her building has been significantly lower almost nil. At Commission inquiry, Ms. Plotkin stated she attributes this quietness in her neighborhood to the fact that dancing at the Cannery has stopped. She concluded stating that the majority of problems occur on the weekends, Friday and Saturday nights, as well as the week before the major holidays. The following citizens spoke in opposition to this application asking that this application be denied citing reasons already discussed: Alex Steigrod, 601 Lido Park Drive - limited bathroom facilities • Gordon Leeper, 419 30th Street - approving a nightclub in a mixed residential area Cliff Sechrist, 601 Lido Park Drive Iry Marshack, 601 Lido Park Drive - noise monitoring Richard Luehrs, 2333 Arbutus Street spoke in support of this application for the following reasons: • no additional space • no additional occupancy • no extension of hours • never been cited for a violation under the Noise Ordinance • Mr. Hamilton is a responsible owner At Commission inquiry, Ms. Temple answered questions brought up by speakers during testimony: • definition of a restaurant - an operation having the principal purpose of the sale of food and beverages. Should any restauranteur request a permit to have ongoing alcohol beverage service with or without live entertainment and cease the service of food they would then be categorized as a cabaret or nightclub. This proposal is to leave the restaurant services open during the entire operational hours. Should dinner service be closed off during the dancing and entertainment, then the operation would be classified as a cabaret or nightclub and the applicant would have to come back to the City for the proper permits to continue operation. • this application is for accessory dancing and live entertainment. INDEX City of Newport Beach • Planning Commission Minutes November 6, 1997 a Use Permit runs with the land, therefore the conditions and authorization to have live entertainment run with the land. there is also a requirement for a live entertainment permit and a dance permit and those are issued to the operator. The next owner may not be able to have the dance and live entertainment if he /she were unable to acquire the permit from the City Manager. noise monitoring will be done by City code enforcement at the property line of the residences and at the commercial property line Mr. Hamilton, at Commission request, stated that the dancing issue has been over stated. He had not advertised it in the past, but it occurred spontaneously by his patrons. He stated that he would probably not have dancing between Sunday and Wednesday. Rather, it would be on the weekends plus evenings prior to holidays because it is expensive to hire extra staff. This whole application is an experiment and asked Commission to let him try it. He could hire a sound engineer to suggest remedies with internal noise. Continuing, he ascertained that there is adequate bathroom facilities as required for his occupancy rating. Public Comment was closed. • Commissioner Ashley stated his support for this application for the following reasons: • that the Community Noise Ordinance is restrictive; • that the applicant will deal with any noise attenuation within his aging building; • Mr. Hamilton is highly respected; • a commercial use opposite a street that is occupied exclusively by residences, the sounds of mufflers, boats, motorcycles, etc., can not be controlled • the staff report and analysis reports the issues that, if violated by the applicant, the permits can be revoked. Commissioner Adams stated that he had met with city staff and the applicant.. The new staff report addresses a lot of the issues that were previously brought up. He stated that he opposes this application due to testimony stating that there is a direct correlation between the cessation of dancing and improved conditions. This demonstrates that this did have an affect. There are other factors as well; the properties on Lido Park are in a residential zoning area, there is little chance that eating will be going on between midnight and 2:00 p.m., and, this has a potential to escalate. Commissioner Gifford stated that she opposes this application for the following reasons: • • past performance of unauthorized experiment of dancing in violation of permits INDEX • City of Newport Beach Planning Commission Minutes November 6, 1997 violations at Malarky's these residents can't have peace and quiet with a higher level of noise this commercial interest must realize that when they abut residential property, they can't have live entertainment and dancing Commissioner Selich supports this application for the following reasons: • mixed uses have to give a little to co -exist • staff has done good job with the recommendations and conditions to allow this co- existence • during the trial period, the applicant is taking a risk as Commission can take away what has been granted and will direct the applicant to revert to a more restrictive use permit • there will be random monitoring as well as monitoring in response to complaints • the security plan as recommended by the City attorney's office Commissioner Fuller supports this application for the following reasons: • the noise and rowdiness can be controlled by the attitude of the applicant - no evidence that it won't work • enough checks and balances is • give the applicant an opportunity to put this in place Commissioner Ridgeway supports this application for the following reasons: • at any time, the Commission may add or modify conditions of approval • the Commission could call back this item based on complaints on generated from code enforcement monitoring Chairperson Kranzley stated that since the meeting that this application was introduced, he spent time in a patrol car and has spoken to the Chief of Police about comments made regarding the police coverage at Cannery Village. There is coverage by the police at Cannery Village as well as on the peninsula. If there are disturbances on the peninsula, then police coverage has to respond. An attempt is therefore being made in the additional new item 8f to address specific security coverage in the Cannery area. Commission is not granting the applicant any additional noise, whether live or recorded, it is the same decibels. There is no change to the occupancy capacity. The differences are the automatic review call up provision and the security plan. The conditions force the applicant to work and operate the business within the envelope. There is commitment by the applicant as well as other bar owners in the area to address the problems in the streets. This application is worth a try, with the additional conditions • and additional security. INDEX • City of Newport Beach Planning Commission Minutes November 6, 1997 Motion was made by Commissioner Ridgeway to amend Use Permit 1521 (including the latest amended security plan) and to terminate Use Permit No. 1684. Mrs. Wood suggested, in the amended condition 8f, referencing bicycle officers, to strike bicycle as that would leave the Police Department the flexibility to deploy whatever kind of personnel they deem appropriate for the situation. Discussion followed resulting in amending the Motion striking the work bicycle Motion passed: Ayes: Fuller, Selich, Kranzley, Ashley Noes: Gifford, Adams Abstain: none Findings: . 1. That the Land Use Element of the General Plan and the Local Coastal Program Land Use Plan designate the site for 'Recreational and Marine Commercial' uses and that a restaurant and is a permitted use within this designation. 2. That the project is located within the McFadden Square /Cannery Village Specific Plan District which permits eating and drinking establishments with the approval of a use permit. 3. That this project has been reviewed, and it has been determined that it is categorically exempt from the requirements of the California Environmental Quality Act under Class 1 (Existing Facilities). 4. The approval of an amendment to Use Permit No. 1521 (Amended) to allow the existing restaurant to provide dancing and live entertainment with amplified sound will not, under the circumstances of the case, be detrimental to the health, safety, peace, morals, comfort and general welfare of persons residing or working in the neighborhood or be detrimental or injurious to property or improvements in the neighborhood or the general welfare of the City, for the following reasons: The restaurant use is compatible with the surrounding commercial and nearby residential uses since restaurant uses are typically allowed in this mixed 10 INDEX • City of Newport Beach Planning Commission Minutes November b, 1997 commercial /residential district and other restaurants the area have live entertainment permits. The change in operational characteristics does not result in an increase in the parking demand or the general parking requirement for the subject property or the area since the restaurant will be conditioned not to exceed the occupancy limit established by an existing off -site parking agreement. The noise levels can be kept within community noise control standards through conditions on dancing, live entertainment, and amplified sound, the administration of live entertainment permits, and compliance with the Community Noise Control Ordinance. Conditions have been added requiring the applicant to establish a security program for the • restaurant and its parking areas to provide security, crowd control and to discourage loitering, vandalism and other problems identified by the community which have adversely impacted the mixed commercial /residential use neighborhood. 5. That Use Permit 1684 is hereby deemed to be expired and that all rights granted by it have lapsed. Conditions: 1. The project shall be maintained in substantial conformance with the approved site plan, floor plan and elevations. 2. The maximum occupancy of the structure shall not exceed 278 persons. 3. A minimum of 93 off - street parking spaces shall be provided. 4. The hours of operation shall be limited as follows and any increase in the hours of operation shall be subject to the approval of an amendment to this use permit: Food and beverage service: 8:00 a.m. to2:00 a.m. • Live entertainment and dancing: 8:00 P.M. to 1:00 a.m. (Monday through Friday) 11 INDEX City of Newport Beach • Planning Commission Minutes November b, 1997 12:00 noon to 1:00 a.m. (Saturdays, Sundays, and holidays). S. Dancing shall be confined to the 420 square foot dance floor depicted on the approved floor plan. 6. Live entertainment shall be limited to a maximum of 3 performers (total of musicians and vocalists) at any one time. Sound amplification of live and recorded performances shall be permitted. All live and recorded performances shall be conducted within the interior of the structure. The sound from such activity shall be confined to the interior of the restaurant and all exterior doors and windows of the establishment shall remain closed during all live and recorded performances, except as is needed to allow persons to enter and exit the establishment. • 8. Within 30 days of the effective date of this use permit, a security plan shall be submitted and approved by the Police Department and implemented. The security plan shall include, but not be limited to, the following: a. The number and positioning of security personnel. b. A program for providing security for the restaurant and its parking areas. C. A program for maintaining the occupancy limits established by this use permit. d. A program for exterior crowd control. e. A program for discouraging patrons from loitering and engaging in public nuisance behavior on the restaurant site, the off -site parking area, and those areas immediately adjacent. f. Compliance with conditions (d) and (e) above may, at permitee's option be satisfied in part through supplemental law enforcement services provided by the newport Beach Police Department. If this option is selected, the • applicant shall pay all overtime costs to provide additional bic -yele officers for supplemental law 12 INDEX • City of Newport Beach Planning Commission Minutes November 6, 1997 enforcement services to address problems from the Cannery Restaurant to preserve the peace, and address a higher than average incidence of public nuisance problems identified in the area such as loitering, vandalism and loud and unreasonable noise. Officers assigned to this duty will remain under the exclusive direction and control of the Police Department and may be called upon to provide police services outside the District, as necessary. Provision of supplemental services in the District shall be evaluated on an ongoing basis. Such provision shall not relieve the applicant from taking reasonable steps, independent of the Police Department, to address the issues of crime and nuisances related to the applicant's project. This option is subject to approval of the City council and compliance with any future adopted Council Policy. Arrangements shall be made in advance and are subject to all conditions . imposed by the Police Chief. 9. Upon evidence that noise generated by the project exceeds the noise standards established by Chapter 20.26 (Community Noise Control) of the Municipal Code, the Planning Director may require that the applicant or successor retain a qualified engineer specializing in noise /acoustics to monitor the sound generated by the live entertainment and to develop a set of corrective measures necessary in order to insure compliance. 10. A live entertainment permit approved and issued by the City Manager in accordance with procedures set forth in Chapter 5.38 of the Municipal Code shall be required prior to any live entertainment conducted on the project site. H. A cafe dance permit approved and issued by the City Manager in accordance with procedures set forth in Chapter 5.32 of the Municipal Code shall be required prior to any dancing conducted on the project site. The final location of the dance floor shall be approved by the Building Department and the Fire Department to address occupancy and fire exiting requirements of the interior of the establishment. 12. A special event permit issued by the Community Services Department and approved by the Police Department and the • Planning Department shall be required for the following events or activities: 13 INDEX • City of Newport Beach Planning Commission Minutes November 6, 1997 a. Any event or activity within the dining areas of the restaurant whose principal purpose is not the sale or service of food and beverages during restaurant hours and which utilizes a majority of the dining area of the facility. b. Any event or activity staged by an outside promoter or entity, where the restaurant owner or his employees or representatives share in any profits, or pay any percentage or commission to a promoter or any other person based upon money collected as a door charge, cover charge or any other form of admission charge, including minimum drink orders or sale of drinks. 13. The approval of this use permit shall not be construed as permission to allow concerts as defined by the Municipal Code, unless an amendment to this use permit is first approved by the Planning Commission. • 14. The applicant or successor shall take reasonable steps to discourage loitering and to correct objectionable conditions that may constitute a nuisance in parking areas, sidewalks, alleys and areas within 20 feet of the project site during business hours. 'Reasonable steps" shall include calling the police in a timely manner and requesting those engaging in such activities to cease those activities, unless personal safety would be threatened in making that request. 15. Should this business be sold or otherwise come under different ownership, any future owners or assignees shall be notified of the conditions of this approval by either the current business owner, property owner or the leasing company. 16. The project is subject to all applicable City ordinances, policies, and standards, unless specifically waived or modified by the conditions of approval. 17. The approval of this use permit is for a restaurant and shall not be construed as the approval of a bar, cocktail lounge, or other use serving alcoholic beverages during hours not corresponding to regular meal service hours (food products sold or served incidentally to the sale or service of alcoholic beverages shall not be deemed as constituting regular meal service) nor as the • approval of a cabaret, nightclub, or other use with the principal purpose of providing live entertainment and /or dancing. 14 INDEX • City of Newport Beach Planning Commission Minutes November 6, 1997 18. The Planning Commission may add to or modify conditions of approval to this use permit or recommend to the City Council the revocation of this use permit, upon a determination that the operation which is the subject of this use permit, causes injury, or is detrimental to the health, safety, peace, morals, comfort, or general welfare of the community. 19. This use permit shall be subject to review by the Planning Commission in July 1998 and in January 1999. At each review, the Planning Commission may add to or modify conditions of approval to this use permit or revoke this use permit under the provisions of Chapter 20.96 of the Municipal Code. 20. The use permit shall expire unless exercised within 24 months from the date of approval as specified in Section 20.91.050 of the Newport Beach Municipal Code. SUBJECT: Hard Rock Cafe (Ryan MacAfee, applicant) 451 Newport Center Drive • Use Permit No. 3615 Request a change in the operational characteristics of an existing full service restaurant to allow: • the facility to provide live entertainment • the cessation of regular meal service prior to the closing of the restaurant and operation of the facility as a bar /nightclub with alcoholic beverage service as the principal purpose from that time until closing Public Comment was opened. Mr. Ryan MacAfee, Manager of the Hard Rock Cafe at 451 Newport Center Drive, stated that this application seeks a permit for live entertainment. The Cafe has been ongoing for five years with no problems. This permit will allow events to be done on a bi- weekly or weekly occurrence. The Cafe spotlights local up and coming bands, and is done at no charge to the customer. There have been no problems in the past five years, and we ask only for the flexibility to hold live entertainment. The Cafe has provided community services in the past and is a multi million dollar establishment. At Commission inquiry, Mr. MacAfee stated he agrees to the findings and • conditions of the Use Permit No. 3615. He continued, there are no long lines and a typical band brings in about 150 to 200 people. If a major act 15 Item No. 2 UP No. 3615 Approved INDEX City of Newport Beach Planning Commission Minutes November 6, 1997 comes in with advertisement then there will be a crowd and measures are taken for seating arrangementsand security. Henry Lickman, general manager of Fashion Island spoke in favor of this application for the following reasons: • reviewed the staff report and believes that the Cafe can administer and adhere to the plan • Fashion Island is surrounded by commercial uses and office complexes • Cafe has a contractual obligation with Fashion Island which in turn has the right to withhold permission to hold any events if deemed unsafe • will be monitored closely to assure no 'damage to property or community Motion was made by Commissioner Adams for approval of Use Permit No. 3615 with the findings and conditions in Exhibit A. Without objection the motion carried by acclamation. • Findings: 1. That the Land Use Element of the General Plan designates the site for 'Retail and Service Commercial' uses and a restaurant and bar /nightclubare permitted uses within this designation. 2. That this project has been reviewed, and it has been determined that it is categorically exempt from the requirements of the California Environmental Quality Act under Class 1 (Existing Facilities). 3. That the proposal involves no physical improvements which will conflict with any easements acquired by the public at large for access through or use of property within the proposed development. 4. The approval of Use Permit No. 3615 to allow the business to operate as a bar /nightclub after the meal service ceases, and to add live entertainment will not, under the circumstances of the case, be detrimental to the health, safety, peace, morals, comfort and general welfare of persons residing or working in the neighborhood or be detrimental or injurious to property or improvements in the neighborhood or the general welfare of the City, for the following reasons: • The restaurant use is compatible with the surrounding commercial uses since this operation is a continuation of 16 INDEX • City of Newport Beach Planning Commission Minutes November 6, 1997 E an existing restaurant facility. The control of noise can be achieved by the limitation on the location of the specific noise generating activities (live entertainment) and compliance with the provisions of the Municipal Code, Community Noise Ordinance. The proposal will not add a new liquor license to an over - concentrated area, providing only for the operational change of an existing restaurant with an existing alcoholic beverage license. • The establishment is to be operated as a full service restaurant and a bar /nightclub operation with limited hours of operation which should minimize the potential number of Police and Department of Alcoholic Beverage Control problems in the area. • The increased parking demand resulting from the establishment operating as a bar /nightclub can be easily accommodated by the large pool of parking within Fashion Island. The live entertainment, as limited by this approval, is incidental and accessory to the primary restaurant use and will not result in noise impacts on surrounding properties and is not anticipated to generate a significant demand for police services in the area. • The establishment will continue to operate principally as a full service restaurant and the bar /nightclub operation will occur on a limited basis based on the overall hours of operation of the facility. Conditions: 1. That development shall be in substantial conformance with the approved site plan and floor plan, except as noted below. 2. That the hours of operation of the restaurant /bar shall be limited as follows and any increase in the hours of operation shall be subject to the approval of an amendment to this use permit: Hours: Restaurant /Bar /Nightclub Facility: 11:30 a.m. and 12:30 a.m. Sun.-Thurs. 11:30 a.m. and 1:00 a.m., Fri. & Sat. Live Entertainment: 9:00 p.m. to 12:30 a.m. Mon.- Thurs. 9:00 p.m. to 1:00 p.m. Fri. & Sat. 12:00 noon to 8:00 p.m. Sundays 3. That regular food service from the full- dinner menu shall be made available until 11:00 p.m. Sunday through Thursday, and 11:30 p.m. on Friday and Saturday, unless otherwise specified in 17 INDEX • City of Newport Beach Planning Commission Minutes November 6, 1997 conjunction with a Special Events Permit. 4. That a security plan shall be submitted and approved by the Police Department which shall include, but not be limited to, the provision of security personnel for restaurant and parking lot security and crowd control purposes. 5. That the tables and chairs to be removed to accommodate the stage for the live entertainment shall be relocated outside the dining and bar areas to an area approved by the Fire and Planning Department. 6. That the live entertainment shall be limited to a maximum of 5 performers (total of musicians and vocalists) with amplified sound. The sound from such activity shall be confined to the interior of the restaurant and all doors and windows of the establishment shall remain closed during all performances, except when persons enter and leave by the main entrance of the facility or to the outdoor dining area. • 7. That live entertainment in excess of 5 performers may be approved by the Planning Director on a case -by -case basis taking into consideration such factors including but not limited to: the time of day of the activity, the number and types of performers and the location of the performance within the building. The Planning Director may, at his or her discretion, refer the matter to the Planning Commission for interpretation or approval. 8. That the operator of the restaurant facility shall be responsible for the control of noise generated by the subject facility. The use of outside loudspeakers, paging system or sound system shall be included within this requirement. The noise generated by the proposed use shall comply with the provisions of Chapter 10.26 of the Newport Beach Municipal Code. That is, the sound shall be limited to no more than depicted below for the specified time periods: Between the hours of Between the hours of 7-00 a m and 1000 p.m. 10.00 a m and 7:00 a.m. Measured at the property line of commercially zoned property: 65 dBA 60 dBA Measured at the property line of residentialiv zoned properly: 8. That loudspeakers outside of the building or in the outdoor dining 18 INDEX • City of Newport Beach Planning Commission Minutes November 6, 1997 area shall not be utilized in conjunction with the sound system of live performers, or to amplify or convey the sound of the live entertainmentto the exterior of the building. 9. That the applicant shall retain a qualified engineer specializing in noise /acoustics to monitor the sound generated by the live entertainment to insure compliance with these conditions, if required by the Planning Director. 10. That the approval is for the establishment of a restaurant type facility as defined by Title 20 of the Municipal Code, with the principal purpose for the sale or service of food and beverages with sale and service of alcoholic beverages incidental to the food use during the specified restaurant hours of operation. The approval will also allow the establishment to operate as a bar /nightclub type facility as defined by Title 20 of the Municipal Code after the specified restaurant hours of operation, with the principal purpose for the sale and service of alcoholic beverages with incidental food service. This approval shall not be construed as permission to allow concerts as defined by the Municipal • Code, unless an amendment to this use permit is first approved by the Planning Commission. 11. That dancing shall be prohibited as a part of the regular operation, unless an amendment to this use permit and other required application is first approved in accordance with the provisions of the Municipal Code. 12. • That a special event permit issued by the Community Services Department and approved by the Police Department and the Planning Department shall be required for the following events or activities (said special event permit shall be completed and submitted to the Community Services Department at least 30 days prior to the date of the event, unless other arrangements are made with the City departments, to allow adequate time for the Police Department and other City departments to review the application and to impose additional conditions of approval): Any event or activity within the dining areas of the restaurant which is contemplated not to operate with the sale or service of food and beverages as the principal purpose during the specified restaurant hours (i.e., conversion of dining area to bar service area during restaurant hours) which utilizes a majority of the dining area of the facility. Activities or events associated with the establishment and located outside of the building within the parking lot. 19 INDEX City of Newport Beach Planning Commission Minutes November 6, 1997 Public address systems or sound amplifying equipment outside of the building may be used only in conjunction with a special event, and shall be operated in accordance with the provisions of the Community Noise Control Ordinance (Chapter 10.26 of the Municipal Code). Any event or activity staged by an outside promoter or entity, where the restaurant owner or his employees or representatives shall be permitted to share in any profits, or pay any percentage or commission to a promoter or any other person based upon money collected as a door charge, cover charge or any other form of admission charge, including minimum drink orders or sale of drinks. 13. That a maximum of 12 Special Event permits for events or activities in conjunction with restaurant and bar /nightclub operation shall be permitted per calendar year, except that activities located outside of the restaurant building or within the parking lot shall be limited to no more than 6 events per calendar • year. 14. The applicant or successor shall take reasonable steps to discourage loitering and to correct objectionable conditions that may constitute a nuisance in parking areas, sidewalks, alleys and areas within 20 feet of the project site. 'Reasonable steps' shall include calling the police in a timely manner and requesting those engaging in such activities to cease those activities, unless personal safety would be threatened in making that request 15. That a Live Entertainment Permit issued by the Revenue Division, in accordance with procedures set forth in Chapter 5 of the Municipal Code, shall be required to allow live entertainment as incidental and accessory to the primary use of the facility as a restaurant and as a bar /nightclub operation after regular meal service ceases in the restaurant. 16. That the project shall comply with State Disabled Access requirements. 17. That should this business be sold or otherwise come under diff eren ownership, any future owners or assignees shall be notified of the conditions of this approval by either the current business owner property owner or the leasing company. • 18. That all signs shall conform to the provisions of the Fashion Islanc 20 INDEX • City of Newport Beach Planning Commission Minutes November 6, 1997 • Planned Community District Regulations and Chapter 20.67 of the Municipal Code. 19. That no temporary "sandwich" signs, balloons or similar temporary signs shall be permitted, either on -site or off -site, to advertise the food establishment, unless specifically permitted. Temporary signs shall be prohibited in the public right -of -way, unless otherwise approved by the Public Works Department in conjunction with the issuance of an encroachment permit or encroachment agreement. 20. That the Planning Commission may add to or modify conditions of approval to this Use Permit or recommend to the City Council the revocation of this Use Permit, upon a determination that the operation which is the subject of this Use Permit, causes injury, or is detrimental to the health, safety, peace, morals, comfort, or general welfare of the community. 21. That this Use Permit shall expire unless exercised within 24 months from the date of approval as specified in Section 20.91.050 of the Newport Beach Municipal Code. SUBJECT: Franklin Realty Sign Jeffrey Stem, applicant 3250 East Coast Highway Exception Permit No. 51 Request for an exception to the Sign Code to allow the replacement of an existing conforming pole sign with a pole sign which contains a marquee type sign animated with mechanically changeable copy. Ms. Temple stated that this application is a result of a proposal by Franklin Realty in Corona del Mar to install a changeable copy sign that utilizes computerized flip disc technology. When the first request was received, staff had concerns about the exact interpretation of the Sign Code in relation to this sign and questioned whether this sign constitutes an animated sign under the provisions of the Code. The Commission determined that this sign was an animated sign and therefore the applicant has filed this application for an Exception Permit. Commissioner Fuller questioned Mr. copy of the sign and any concern caused by an 8 second interval. Edmonston about the changeable as to driver diversion that may be • Mr. Edmonston stated that the interval of 8 seconds is adequate to limi 21 INDEX Item No. 3 Exception Permit No. 51 Denied • City of Newport Beach Planning Commission Minutes November 6, 1997 the frequency of change that might in and of itself be Commissioner Selich asked about the community message center benefits. If there is an agreement with the Corona del Mar Chamber of Commerce and should this be taken into consideration during the Commission deliberation? Ms. Temple stated that the City is not in a position to condition or control the content of any sign except with some particular specifics regarding adult oriented businesses. The Commission has to consider the sign in the light, should the private agreement change, that the sign could be used exclusively for commercial purposes, and not through City mandate incorporate community benefit messages. If it is determined that, the Exception Permit is granted, the Commission is giving the applicant an extraordinary privilege, this is being limited by staff's proposal to limit the copy to being changed to once a day. The suggested restriction to change the copy only once a day would put this sign on par with a manual, changeable copy sign that is already permitted by the Code. Public Comment was opened. • Mr. Jeffrey Stern, 2020 Marlin Way - stated that he has a fully operational sign in the parking lot. He asked if the Commission would like to go outside and see for themselveswhat the sign entails. Commission then took a five minute recess and proceeded to the parking lot to see the sign. Mr. Stern then commented on the staff report about the proliferation of this type of sign throughout the City. The economic value of this sign, in this case, the electronics alone exceeds $50,000. This type of sign has been approved elsewhere in the City at West Cliff Plaza. This type of sign has been installed in several other cities at their expense. In this instance, a citizen is willing to assume the cost and thus save the taxpayers. Up until August of this year, CalTrans controlled the signs on any highway or freeway in the state. Control of the electronic message centers have been passed over to the local governments. The visibility of the location is one half a block, most of the motorists will see one or two messages. The visibility of traffic is two blocks. Mr. Priestly, 4521 Cortland, President of Corona del Mar Chamber of Commerce spoke in support of the application. This sign would be a good opportunity for residents to find out what is happening around town. At Commission inquiry, he stated that there is no written agreement for community copy on this sign. • Mr. Royal Radtke, 330 Mayflower Drive, past President of Corona del Mar 22 INDEX • City of Newport Beach Planning Commission Minutes November 6, 1997 Chamber of Commerce spoke on behalf of this application. This proposition was brought to the Chamber on a 50 -50 basis. The board thought this would be more beneficial to the community on a 70 -30 basis and an agreement was reached acceptable to all concerned. This sign would allow messages to be highlighted regarding access closures or main breaks. The Business Improvement District is looking for a way to save $50,000 and to have this particular sign put up and to be used instead of the many banners that are strung across the center at Marguerite and Coast Highway. Ms. Lavinia Hayton, business owner spoke in favor of this sign stating this would be good for the community. Mr. Robert Hobson, 415 Marigold, owner of Franklin Realty, stated that the advertisement part of the sign will be small. The majority will be community related. At commission inquiry, he stated that his agreement with the Chamber is his intention, there is no written agreement. Public Comment was closed. • Commissioner Fuller asked if there were light bulbs in the sign. He was answered that there are no bulbs, rather, they are reflector discs and the sign itself is back lit and there will be no color. Commissioner Selich stated that this is a new type of exception for a sign on a corner property. If this is granted, there will be other requests for this type, for instance any of the auto dealerships. He doesn't want to drive down Coast Highway and see flashing signs advertising products for sale versus what the real purpose of the Ordinance is, to identify the name of the business. Commissioner Gifford stated that she too does not find any exceptional circumstances to justify granting an exception to the sign code for this purpose. Looking at the attachment that has been submitted, the question what exceptional and extraordinay circumstances are involved, the answer is this technology utilizes fixed fluorescent lamps behind a face with flip disks to create the letter form, which in actuality, allows light to pass through less than one third the surface as compared to a standard plastic face. I don't understand that this has any relation to land use or planning or why the circumstance to this property would justify an exception. There is no relevance that 70% of the message content of this sign would be non - commercial public service nor why it is necessary to protect a substantial property right. These responses do not bear at all on any exceptional circumstances. • Commissioner Adams opposed this sign for similar reasons previously stated. He continued that the sign is ugly and does not want to see these 23 INDEX City of Newport Beach Planning Commission Minutes November 6, 1997 INDEX on the highway. Commissioner Ashley supports the technology and likes the way it looks but not the location. He agrees with Commissioner Selich's comments and would like to see this sign at a more appropriate location. Motion was made by Commissioner Adams to deny Exception Permit No. 51 per the Findings in Exhibit B. Ayes: Sellch, Kranzley, Gifford, Adams, Ashley Noes: Fuller, Ridgeway Abstain: none FINDINGS 1. That the approval of this exception permit is not necessary to protect a substantial propertyright because: • Adequate signage can be provided within the permitted • 25 foot pole height and 200 sq. ft. per face permitted in the Sign Code. • This property occupies a highly visible location on East Coast Highway which has frontage on both the Highway and Marguerite Avenue and animation is not necessary to provide adequate signage. 2. That the proposed animation is not compatible with the business area in Corona del Mar since the area currently has no operating animated signs. 3. That the proposed animation is not compatible with the residential uses in close proximity to the proposed sign due to the potential to produce the effect of a flashing sign after dark. 4. That the proposed sign is not consistentwith the stated purpose of the Sign Code since the sign may provide the ability to advertise direct products, services and listings which is beyond the purpose of the identification and advertisement of the on -site business. 5. The approval of Exception Permit No. 51 will, under the circumstances of the case, be detrimental to the health, safety, peace, morals, comfort and general welfare of persons residing or working in the neighborhood because: - The proposed animation could distract the attention of motorists which could create traffic hazards. 24 City of Newport Beach Planning Commission Minutes November 6, 1997 The sign could create the effect of a flashing sign at night which could disturb nearby neighbors. The approval could create the standard and precedent for the approval of additional animated changeable copy signs. SUBJECT: Activities incorporated (Kathy Miller, applicant) 501 30th Street • Use Permit No. 3614 Request to establish a private banquet /conference facility in a space formerly occupied by a full service restaurant. The operation will function as a banquet facility, evenings and weekends, for events such as private parties and weddings. Activitieswill include: • on -site sale and /or consumption of alcoholic beverages; • a request to waive a portion of the required parking; and • the use of live entertainmentand dancing. • The applicant has requested that this item be continued. Motion was made by Commissioner Selich to continue this item to November 20th. Without objection the motion carried by acclamation. SUBJECT: Christopher R. Colvin (on behalf of Ms. Nita Puig Heckendorn, owner) 3000 Ocean Boulevard • Modification Permit No. 4599 Appeal of the decision of the Modifications Committee which approved a request to allow a second story addition over an existing single car garage that is nonconforming because it is encroaching 7 feet into the 10 foot required rear yard setback. The proposed new construction will match the existing setback encroachments. The applicant has requested that this item be continued. Motion was made by Commissioner Selich to continue this item to November 20th. • Without objection, the motion carried by acclamation. 25 INDEX Item No. 4 UP No. 3614 Continued to 11/20/97 Item No. 5 Modification No. 4599 Continued to 11/20/97 • City of Newport Beach Planning Commission Minutes November 6, 1997 SUBJECT: Asian Bistro (Ahn Tran, applicant) 2600 East Coast Highway, #160 Planning Director's Use Permit No. 14 Request to permit the conversion of a specialty food service use (No. 60) to a full - service small scale eating and drinking establishment; and alter the operational characteristicsto: • increase the interior seating from 20 to 25 and • add alcoholic beverage service (beer and wine only) The applicant has requested that this item be continued. Motion was made by Commissioner Selich to continue this item to November 20th. Without objection, the motion carded by acclamation. • Due to the extent of testimony and time taken on the first item, Commission discussed and agreed to take the following item out of order: SUBJECT: Gelson's Market (Bruce Edelson, applicant) 1660 San Miguel Drive • Use Permit No. 3617 Request to permit the construction of a 400 square foot storage building and a request to waive the required parking spaces (two parking spaces). Public Comment was opened. Mr. Bruce Edelson, representing Gelson's Market, stated that it is the intent of Gelson's to construct a storage building in the back lot of the main building to replace the non - conforming storage truck trailer that has been there since approximately 1989. Requested is a variance as the new storage building will be approximately 400 square feet and under the code that would require two additional parking spaces be constructed. There is no change in the actual square footage at the site, since a storage truck trailer of approximately 400 square feet will be removed. There will be no increase in traffic nor in parking at the shopping center as a result of this storage building. The loss of this storage could mean additional traffic as there will be additional delivery trucks there. At the present time, there is a requirement for 276 parking spaces and staff's check of the parking drawing showed only 270 spaces. Staff 26 Item No. 6 PDUP No. 14 Continued to 11/20/97 Item No. 8 UP No. 3617 Approved INDEX • City of Newport Beach Planning Commission Minutes November 6, 1997 INDEX was unable to count the number of parking spaces at the site because the lot was being re- sealed and there were no parking lines. He has counted the spaces as of this afternoon and there are 274 spaces, two short of the requirement that will be corrected because they were missed. Commissioner Fuller asked about an agreement that Gelson's has with the Lutheran Church for the parking of 40 cars. It was not determined that if the agreementwas terminated what would happen. Mr. Edelson stated that this agreement is not an existing condition of parking at the Center. Commissioner Fuller asked staff if those cars have to be parked on site. Commissioner Selich asked the applicant's representative about the loss of the loading dock as shown on the exhibit if this is granted and the storage building is constructed. Mr. Edelson stated that this has been taken into consideration and that a • study has been done to count the number of trucks that make delivery. The schedule will be set so as not to impact the streets. Public Comment was closed. Motion was made by Commissioner Ridgeway to approve Use Permit No. 3617 with the findings and conditions in Exhibit A. CommissionerAdams stated that this shopping center is shamefully under parked. What we are doing is going to make it worse, but there is nothing else to be done as that trailer has been therefor sometime. CommissionerSelich stated that the last restaurant was approved before and waived parking based on a parking study. That parking study did not recognize the fact that there were 40 parking spaces off site. The trailer should betaken out. They cannot load the stock from that loading area. The waiver of parking for Pick -Up Stix was the last straw. The trailer is not something that has to stay. Ms. Temple stated that staff was not aware of the off -site parking agreement until tonight. There is nothing written that employees park on site, however, we routinely make it a condition of approval. One thing to consider is a condition to formalize this agreement. Public comment was re- opened. • Mr. Jim McCurry, manager of Gelson's market answered that some 27 • City of Newport Beach Planning Commission Minutes November 6, 1997 employees park on site. They do not require the closing manager and checkers to park off -site for security reasons. All other employees park at the local church per agreement. The open agreement is written and has worked well for many years. Public comment was closed. Discussion followed on the waiver of parking spaces, removal of trailer, who would park in the rear, employee off - street parking, off -site parking agreement is to comply with the parking requirements so as long as they have an agreement you get the use, if the agreement is lost then the use is lost unless you can replace it somewhere else. Motion passed: Ayes: Fuller, Ridgeway, Kranzley, Gifford, Ashley Noes: Selich, Gifford Abstain: None Findings: • 1. That the Land Use Element of the General Plan designates the site for 'Retail and Service Commercial' uses and the proposed storage building is a permitted use within this designation. 2. That this project has been reviewed, and it has been determined that it is categorically exempt from the requirements of the California Environmental Quality Act under Class 1 (Existing Facilities) and Class 11 (Accessory Structures). 3. That the proposal involves no physical improvements which will conflict with any easements acquired by the public at large for access through or use of property within the proposed development. 4. That a parking demand study for the shopping center was performed by an independent traffic consultant which was reviewed and accepted by the City Traffic Engineer and the Planning Commission in 1996 and which established that the overall parking demand of the uses on -site can be accommodated by the available on -site parking. Additionally, the characteristics of the shopping center have not changed since that time and staff has determined that the assumptions made in that report are valid with regard to the subject proposal. • 5. The approval of Use Permit No. 3617 will not, under the circumstances of the case be detrimental to the health, safety, 28 INDEX City of Newport Beach Planning Commission Minutes November 6, 1997 peace, morals, comfort and general welfare of persons residing or working in the neighborhood or be detrimental or injurious to property or improvements in the neighborhood or the general welfare of the City and the waiver of the parking requirement (2 spaces) is justified for the following reasons: The proposed storage building is located within a multi - tenant commercial shopping center which is comprised of uses which exhibit varying business peaks which do not generally overlap. • The parking demand of the proposed storage building is anticipated to be less than that required by Section 20.66.030 of the Newport Beach Municipal Code since the storage is directly associated with the market and does not itself generate a need for additional parking. • The long term use of the proposed storage building would be solely for storage associated with the market and, given its location at the rear of the market, could not be readily converted to a separate commercial use which would generate additional parking demand. The concerns related to traffic conflicts and noise • generated by the delivery vehicles have been adequately addressed by the recommended conditions of approval which relocated the vehicles onto the subject property. Conditions: That development shall be in substantial conformance with the approved site plan, floor plan and elevations, except as noted below. 2. That the storage building shall be utilized solely in conjunction with the market and shall not be utilized as an independent commercial use unless additional parking is first provided or an amendment to this use permit is approved by the Planning Commission. Additionally, if the structure is removed, the area approved by this use permit cannot be relocated to another area of the shopping center without prior approval by the Planning Commission. 3. That prior to issuance of building permits for the construction of the subject storage building, a minimum of 276 parking spaces shall be provided on -site and shall be verified in the field by the Planning Department. 4. That the proposed construction shall conform to the requirements of the Uniform Building Code. 29 INDEX • City of Newport Beach Planning Commission Minutes November 6, 1997 5. That the project shall comply with State Disabled Access requirements. 6. That the vehicular circulation and pedestrian circulation systems of the loading /delivery areas shall be subject to further review by the City Traffic Engineer prior to construction of the storage building. 7. That all patrons and vendors making deliveries shall be required to park within the delivery area or parking lot of the subject property and not along the public right -of -way on Pacific View Drive (on- street). 8. That all mechanical equipment shall be screened from view of adjacent properties and adjacent public streets, and shall be sound attenuated in accordance with Chapter 10.26 of the Newport Beach Municipal Code, Community Noise Control. 9. That the Planning Commission may add to or modify conditions of • approval to this Use Permit or recommend to the City Council the revocation of this Use Permit, upon a determination that the operation which is the subject of this Use Permit, causes injury, or is detrimental to the health, safety, peace, morals, comfort, or general welfare of the community. 10. That this Use Permit shall expire unless exercised within 24 months from the date of approval as specified in Section 20.91.050 of the Newport Beach Municipal Code. 4i} Motion was made by Commissioner Adams to hear the Variance No. 1215 and to continue the discussion item of 13 Bay Island to November 2()th. Motion failed: Ayes: Gifford, Adams, Ashley Noes: Fuller, Ridgeway, Selich, Kranzley Abstain: None 30 INDEX • City of Newport Beach Planning Commission Minutes November 6, 1997 SUBJECT. 1821 Kings Road, Residence Rush and Linda Hill, applicants • Variance No. 1215 Request to permit the construction of a new single family dwelling, portions of which will exceed the 24 foot height limit. The specific request includes: • the roof and portions of the third floor which will exceed the height limit ranging from 1 foot to 8 feet • a covered balcony which will exceed the height limit by 15 feet • a 28 foot high stairwell that will exceed the height limit by 4 feet Also included in the application is a modification to the Zoning Code to permit: • portions of a wood deck to exceed the permitted 6 foot height limit for walls and fences, which encroaches 10 feet into the required 10 foot rear yard setback and 4 feet into the required east side yard setback • a freestanding fireplace that exceeds the permitted 6 foot height • limit and encroaches into the required 10 foot rear yard setback Ms. Temple noted that this is a Variance to exceed the basic height limit of 24 feet in the R -1 District for property on Kings Rd. Modification applications are also included regarding certain encroachments of a rear yard deck and a freestanding fireplace that exceeds the permitted 6 foot height limit and encroaches three feet into the required 10 foot rear yard setback. This Variance is for the height of the building where the portion of the building exceeding the height limit is on the southerly or Coast Highway side of the property. The building itself near Kings Road is in most cases compliant with the height limit. Noting page 4 of the staff report, it was stated that the proposed easterly side yard setback would be 6 feet and the westerly side yard setback would be 9 feet (permitted is 4 feet). Additionally, the parapet wall located on the south /west corner of the dwelling is 31 feet above natural grade to the top instead of 32 feet as indicated in the drawing. The building height variance is from 1 to 7 feet. The chimney on the west side is 28 feet above natural grade. At Commission inquiry, Ms Temple noted the following: • Structures can be constructed in the side and rear yards so long as they do not exceed 6 feet in height. • The applicant could build a structure taller and wider as viewed from Kings Road if he was to build the structure to the maximum allowed. It would be difficult, but not impossible to build a structure 24 feet in height to the 10 foot rear yard set back, which would have greater • impact that the proposed structure. 31 INDEX Item No. 7 Variance No. 1215 Approved • City of Newport Beach Planning Commission Minutes November b, 1997 Public Comment was opened. fluff :4 Rush Hill, applicant, 1211 Cliff Drive - referencing a three dimensional model pointed out the differences between the proposed setback limits to the allowed setback limits. The purpose is to achieve as much of a back yard as possible for the functional and sound aspects of the buffer from the noise generated from Coast Highway. By compressing the design in to the center of the property he was able to do this without maximizing the envelope on the Kings Road side. (referencing a hand held exhibit, it was demonstrated what could be build in compliance with the Code and what is proposed). He concluded stating that he has read, understands and agrees to the findings and conditions contained in the staff report and asked that this Variance be approved pointing out the resulting submitted design is much less obtrusive that what could be done without the Variance. Chairperson Kranzley asked that speakers come to the front and stated that any questions asked of staff during public testimony would be answered at the end of the testimony. • Phil Petty, 1720 Kings Road spoke in opposition to this application for the following reasons: referenced letterwritten by his wife this is a variance of 331 /3% (going from 24 to 32 feet) • no other height variances on cliff side of Kings Road have been granted • opposes the findings and conditions stated in the report • public notice he received contains no reference to a covered balcony that exceeds the height limit by 15 feet • public notice he received was addressed to his 91 year old father in law Harold Street, 1710 Kings Road spoke in opposition to this application for the following reasons, and stated that he has not looked at the plans prior to this evening. • private views were protected • received copy of regulations regarding no variations in this area • reasons for these rules relative to height and view corridors • if an exception of this magnitude is granted, many more will come forward Chairperson Kranzley stated that a larger building could be built on this lot that would have a greater impact on views and that the City of • Newport Beach does not protect private views. IOJ • City of Newport Beach Planning Commission Minutes November 6, 1997 Commissioner Ridgeway pointed out that height limitations on houses on Kings Road on the lower side can build a two story height within the 24 -29 foot height from natural grade limitation. Commissioner Adams stated that each individual application is looked at on its own merits by the Commission. He asked Mr. Street if that portion of the structure that exceeds the height limit would obstruct his view to which he answered, yes. Commissioner Gifford asked Mr. Street to reference the model and show what portion of the proposed structure he believes impacts his view, which he did. She stated that the Commission has no ability to deny someone from building within their full envelope, which in this case, would extend the bias out a considerable additional amount from the oblique view. In terms of the height, that portion of the building will be higher than the height limit and is limited to the front portion of the residence along the back side. Concluding, she added that the three expressed concerns of oblique view, height and precedence, have been looked at on an individual basis. Every application is considered based on the uniqueness of that property, that proposed design and those impacts. • At this point during the testimony, the hand held exhibit was referenced. Shown with this exhibit was the proposed and existing view disruption from the various view directions of concerns stated. At Commission request, Ms. Temple cited the following variances on the coast side on Kings Road: 1. V1086,607 Kings Road approved July, 1981 2. VI 150, 1101 Kings Road approved February, 1989 3. 2209 Cliff Drive approved December, 1996 4. 1700 Kings Road approved, 1993 Frank Izendraff, 104 Kings Place asked staff about the height down to grade. This is setting a precedent for giant castles to be built along Kings. His small lot of 22,000 square feet of land, if it is two times buildable, it could possibly take a 30,000 square foot house. Could he build something that high in the back? Commissioner Adams stated that the applicants would be allowed to build a 12,580 square foot home here. He is also allowed to build a bulkier house that has been described earlier. The following additional people spoke in opposition for similar reasons as previously stated. • Bill McCuller, 1410 Kings Road - view of sunset is impaired from the park that sits next door, other homeowner has recently built to height limits at 33 INDEX • City of Newport Beach Planning Commission Minutes November 6, 1997 great expense Kerry Smith, 1831 Kings Road (to west) - asked about story stakes Carol Dru, 420 Kings Road - wants to preserve the natural beauty of the neighborhood and the park Luke Dru, 420 Kings Road - once a precedent is set, courts overrule Planning Commission and City Council policies; property values are based on view Mr. Hernandez, 1700 Kings Road - built his home recently according to height limits, why can't the Hills do the some and conform with height limits. Speakers in support of the application: Michelle Quinn, (no address given) - this is a private lot and this will not hinder the view from the park Tom Lally, 108 Kings Place - this proposed structure is neighborhood friendly and will increase the value of homes on the street Public Comment was closed. • Ms. Clauson responded to some of the legal issues brought up during the testimony: • During Commission review of Use Permits or Variances, protection of private views are not addressed. • Testimony with regard to private views are considered a factor in the general overall determination but protection of private views do not come into play. • Impact on public views is always considered from a legal point of view. • Regarding precedence, a Variance has specific findings that are different from other types of permits that Commission issues. These findings have to do with something unusual either topographical or setbacks. • Each property has to be evaluated on its own as they have different topographical issues. Concluding, Ms. Clauson stated that the focus needs to be on what is it about this property that needs an increase in the height. It is very difficult for a Variance to set a precedent for another Variance as each property needs to be looked at individually in each instance. Ms. Temple then addressed other questions resulting during testimony • number of items on notice - notices are sent with an attempt to provide information beyond that required under state noticing requirements, the actual wording on the roof and portions of the buildings did not include specifics on the balcony, however, the 34 INDEX . City of Newport Beach Planning Commission Minutes November 6, 1997 agenda does include this information person named on notice - Planning Department relies solely on the latest equalized rolls of the county tax assessor. height of the building above grade - at the mid point of the structure on the coast highway side the maximum is between 1 and 7 feet above natural grade and the balconies beyond the structure itself range from 8 to 15 feet above natural grade Commissioner Fuller stated looking at this proposal there are trade offs and being sensitive to value. What is proposed and what could be built, the relief in the variance does not seem to be that substantial. He supports this issue as it is well conceived and is considerably better than it could have been. Commissioner Ridgeway, supporting the application, stated that: variances are based upon extraordinary conditions variance is taken at the natural grade point from Kings Road this proposed building is under the 24 foot height limit house is very pretty and is as big is it possibly could be which is within • precedent no no precedentis being set Commissioner Selich supports the application due to the design of the house and placement on the lot. The purpose of a variance is to take into consideration the inequities in property by the size and shape. Commissioner Gifford, supporting the application, stated that the view from the public park is protected with the proposed design. Commissioner Adams supports the application for reasons mentioned above. This is a good design for this location. Bringing up the possibilityof story poles, after discussion by Commission, were not required. Motion was made by CommissionerAshley to approve Variance No. 1215 with the conditions and findings in Exhibit A. Ayes: Fuller, Ridgeway, Selich, Kranzley, Gifford, Adams, Ashley Noes: none Abstain: none Findings: 1. That the proposed development is consistent with the General Plan since a single family dwelling is a permitted use within the • Single - Family Residential designation. 35 INDEX • City of Newport Beach Planning Commission Minutes November 6, 1997 2. That this project has been reviewed, and it has been determined that it is categorically exempt from the requirements of the California Environmental Quality Act under Class 3 (New Construction). 3. That the design of the proposed improvements will not conflict with any easements acquired by the public at large for access through or use of property within the proposed development since conditions have been included in regards to development adjacent to the sewer easement. 4. That the following exceptional or extraordinary circumstances apply to the land and building referred to in this application, which circumstances or conditions do not apply generally to land, building and /or uses in the same District: • The topography of the lot inhibits the property owner from designing a dwelling of comparable size to other homes in the area due to the fact that the property slopes in two directions, southerly away from Kings Road, and easterly • downward across the property. • That the lot is constrained by a shorter depth on one side of the lot and a smaller width at the street, thereby restricting the siting options for the residential structure. 5. That the approval of Variance No. 1215 is necessary for the preservation and enjoyment of substantial property rights of the applicant for the following reason: • The proposed project is generally comparable to the size and bulk of other buildings in the surrounding neighborhood and strict application of height requirements could result in a dwelling that is substantially smaller than otherwise permitted by the Zoning Code. 6. That the granting of a variance to allow a portion of the third floor roof, covered balcony and stairwell to exceed the permitted height limit, and the modification for the deck and fireplace, will not be detrimental to the health, safety, peace, comfort and general welfare of persons residing or working in the neighborhood of the subject property and will not under the circumstances of the particular case be materially detrimental to the public welfare of injurious to property improvements in the neighborhood because: • The applicant has designed a dwelling that is located in 36 INDEX • City of Newport Beach Planning Commission Minutes November 6, 1997 approximately the some location as the existing house on the property in order to preserve public views from the adjacent City Park on Kings Road. The site development has included an increased rear yard setback on the ocean side in order to increase the view corridor across the subject site from both the park and the view to the bay of the adjoining westerly neighbor. When viewed from Kings Road, the house is no taller than one which could be constructed in conformance with the height limit. Other three -story elevation residences exist in the area along Kings Road and as viewed from West Coast Highway. The proposed covered balcony is located farther down the slope of the property as compared to neighboring dwellings and will not abruptly change the visual vertical scale of the building as viewed from Coast Highway. The proposed deck encroachment will allow the applicant to further utilize the rear yard of the property, but will continue to maintain the public and private views to the bay. The proposed fireplace will be located a minimum of 9 feet back from the rear property line and will be subject to the requirements of the Uniform Building Code. Conditions: 1. That development shall be in substantial conformance with the approved site plan, floor plan and elevations, except as noted below. 2. That two independently accessible parking spaces shall be provided on site for the parking of vehicles only, and shall be available to serve the residential unit at all times. 3. That all public improvements be constructed as required by Ordinance and the Public Works Department. 4. That an encroachment permit be processed through the Public Is Works Department for all work within the public right -of -way and 37 INDEX City of Newport Beach Planning Commission Minutes November 6, 1997 that an encroachment agreement be executed for all non- standard and decorative improvements to be constructed within the Kings Road right- of- wayand any easements. 5. That the dwelling and deck be designed so that it does not encroach into the existing or relocated sewer easement that crosses the property unless sewer service to the lot is designed to allow the easement to be abandoned with the approval of the Public Works Department. That no grading or building permits shall be issued until the sewer issue has been resolved and that all required easements have been dedicated or abandoned unless otherwise approved by the Public Works Department. 6. That arrangements be made with the Public Works Department in order to guarantee satisfactory completion of the public improvements, if it is desired to obtain a building permit prior to completion of the public improvements. 7. That disruption caused by construction work along roadways and by movement of construction vehicles shall be minimized by proper use of traffic control equipment and flagmen. Traffic control and transportation of equipment and materials shall be conducted in accordance with state and local requirements. 8. That overhead utilities serving the site be undergrounded to the nearest appropriate pole in accordancewith Section 19.24.140 of the Municipal Code unless it is determined by the City Engineer that such undergroundingis unreasonable or impractical. 9. That the proposed drive approach have a minimum hike -up between flow line and property line of six (6) inches plus 217o for parkway width, and that the driveway grades be designed to conform to City standards. That unused portions of the existing drive approach be removed and replaced with curb and gutter. That all work within public rights -of -way and easements be completed under an encroachment permit issued by the Public Works Department. 10. That the rail on the proposed deck in the rear yard, be constructed with glass, wrought iron, or other similar material that Will provide a rail that is at least 50% open. 11. That the fireplace encroachment into the rear yard setback be a maximum of 1 foot. 12. That all mechanical equipment and trash areas shall be screened from public streets and adjoining properties. 38 INDEX City of Newport Beach Planning Commission Minutes November 6, 1997 13. That a drainage study be prepared for the on -site drainage by the applicant and approved by the Building Department showing how the on -site drainage is to be handled. 14. That this variance shall expire unless exercised within 24 months from the date of approval as specified in Section 20.80.090A of the Newport Beach Municipal Code. SUBJECT: 13 Bay Island (Donald Haskell, applicant) Request to exceed the base height limit to the maximum height limit for a part of a new single family dwelling unit to be constructed on Lot # 13 of the Bay Island Club. Ms. Temple stated that at the last meeting Commission approved a Planned Residential Development Use Permit special zoning provisions for Bay Island. Those provisions included the Commission's ability on a minute action to allow a higher height limit of 29 feet when the project would be in scale with adjacent and surrounding dwellings. This is a house design that was caught in a timing problem where the design was according to the MFRS height standards and had received approval from the Bay Island Association of this design. This action is to authorize the house design to 29 foot height limit. Action will become effective once the Council's action on the Use Permit is taken. This building is being reviewed by the Commission in the context of the neighboring properties on Bay Island. Public Comment was opened. Tim Wilkes, 13 Rocky Glen, Irvine spoke on behalf of owner, Don Haskell. He stated that this set of plans has been a finished design awaiting the use permit for Bay Island. These plans have been previously approved by the Bay Island Association prior to the zone code change. As the house was designed it was completely in compliance with the zoning code in effect at that time. Under the new provisions of the use permit for Bay Island, he is here to be able to go to the 29 feet which is geographically located in the center of the house. Every house on this particular side of Bay Island, goes to 29 feet. Staff noted that as a discussion item there is no requirement for noticing. However, the Bay Island representatives are aware of this project. The Association has previously approved this design as the plans have been 39 Discussion Item A Approved INDEX 0 City of Newport Beach Planning Commission Minutes November 6, 1997 on public display in the square for thirty days for everyone to review. Public Comment was closed. Motion was made by Commissioner Ridgeway to accept the 29 feet. Without objection, motion passed. ADDITIONAL BUSINESS: due to the lateness of the hour, no reports were given a.) City Council Follow -up - Oral report by the Assistant City Manager regarding City Council actions related to planning -none. b.) Oral report by the Planning Director regarding the approval of Outdoor Dining Permits, Planning Director's Use Permits, Modification Permits and Temporary Use Permits -A Planning Director's Use Permit was approved for 621 Orchid Avenue; a Modification and a Lot Line Adjustment were approved for 8 and 9 Corporate Plaza; a Resubdivision was approved for 602 Larkspur Avenue; Modifications were issued for 621 Orchard Avenue, 1736 Centella Place, 435 Redlands Avenue, 2908 Broad Street, 2012 Yacht Resolute and 707 North Bay Front. C.) Oral report from Planning Commission's representative to the Economic Development Committee -none. d.) Matters which a Planning Commissioner would like staff to report on at a subsequent meeting -none. e.) Matters which a Planning Commissioner may wish to place on a future agenda for action and staff report -none. f.) Requests for excused absences - Commissioner Ashley asked to be excused from the November 20th meeting. ADJOURNMENT: 12:30 a.m. THOMAS ASHLEY, SECRETARY CITY OF NEWPORT BEACH PLANNING COMMISSION 40 Additional Business INDEX