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Home My WebLink About11/20/1997• CITY OF NEWPORT BEACH Planning Commission Minutes November 20, 1997 Regular Meeting - 7:00 p.m. ROLL CALL Present: Commissioners Fuller, Ridgeway, Selich, Kranzley, Gifford and Adams - Commissioner Ashley was excused STAFF PRESENT: Sharon Z. Wood, Assistant City Manager, Community and Economic Development Patricia L. Temple, Planning Director Robin Clauson, Assistant City Attorney Richard Hoffstadt, Development Engineer Ginger Varin, Planning Commission Executive Secretary Minutes of November6. 1997: Motion was made by Commissioner Fuller and voted on to approve, as written, the November 6,1997 Planning Commission Minutes. Ayes: Fuller, Ridgeway, Selich, Kranzley, Gifford, Adams, Noes: none Absent: Ashley Abstain: Public Comments: none Posting of the Aaenda The Planning Commission Agenda was posted on Friday, November 14, 1997 outside of City Hall. Minutes Approved Public Comments Posting of the Agenda • City of Newport Beach Planning Commission Minutes November 20, 1997 SUBJECT: J. B. Collins (on behalf of J. B. Partners LLC) 1812 East Balboa Boulevard Resubdivision No. 1029 Lido An appeal of the decision of the Modifications Committee which approved a request to resubdivide two adjoining parcels of land into 4 parcels of land for the construction of single - family detached residential development on each Ms. Temple noted that this case was continued from the meeting of October 23rd, and that the original staff report has been re- submitted as no additional comments have been offered by either the applicant or appellant. This case is a resubdivision of two lots that currently exist on East Balboa Boulevard in the Peninsula Point area. The proposed resubdivision would change the two lots to four lots, and, change the orientation from fronting on East Balboa Boulevard to fronting on K Street. The proposed subdivision would be the same as the division originally approved in the area in the early 1900's. Staff has analyzed all the requirements to find for an exception to the subdivision code and believes that there are facts relevant on both sides of this case. The • most critical is the' finding of special circumstances relative to the property. There are no unique physical circumstances on this property. However, there are certain facts about the manner in which the property has been held over the years which could present the case to make this finding. Ms. Temple then distributed to Commission for consideration, packets that were submitted at the beginning of the meeting by the applicant. Public Comment was opened. Commissioner Adams asked about the parking requirements for each of the individual lots. He was answered that in this area zoned R -1, the Code requires two parking spaces for a single family dwelling, one of which must be covered. In this particular case, two lots would require four spaces and four lots would require a total of eight spaces. At Commission inquiry, Ms. Temple stated that in 1957 re- subdivisions were approved and recorded which changed the four lot configuration to two lots. Without this approval, the property could be constructed with two single family dwellings. Commissioner Gifford asked if the Commission would like to ask the applicant to continue this item in order for the Commission to review the packet material just received (which includes a copy of the title • report from First American Title Insurance Company, sketches of INDEX Item No. 1 Resubdivision No. 1029 Decision Upheld Approved • City of Newport Beach Planning Commission Minutes November 20, 1997 proposed homes to be built and pictures of completed projects). Discussion ensued as to the acceptance of material at this late date from the applicant. Kevin Canning, of Culbertson, Adams and Associates at 85 Argonaut, Suite 220, Aliso Viejo, spoke representing Mr. Collins. He stated that the distributed information packets actually contain no new information but, do on other projects Mr. Collins has done in the City. Additionally, he stated that there have been a series of misunderstandings and interpretations including those by the Title Company. He asks that Commission re- affirm the action of the Modifications Committee. Mr. Jim Collins, 2004 East Ocean Front, applicant, stated that he purchased the property in May of 1997 and was under the impression that this parcel was four buildable lots, as it was marketed and sold. The preliminary title report showed it as four separate lots, each with legal descriptions. Research found records of a sub - division done in 1956 changing this parcel from four lots to two lots. He then described a series of meetings with the City to try and determine whether the original four lots could be utilized for development. During this process, he hired an architect who prepared working drawings for custom • homes which were submitted to the Planning Department for approval in concept. Several days later, the Planning Department called and stated that the plans could not be approved because a subdivision was required. In response, a request for a Resubdivision was submitted and approved at the September 2nd meeting of the Modifications Committee. It was several days later, that an appeal was filed. He concluded, asking that the Commission approve this re- subdivision as the proposal is consistent with the General Plan which calls for four lots and meets all of the conditions requested by the City. Referencing page 4 of the staff report, Commissioner Selich asked about the contention of the previously approved sub - division never fully implemented since the individual deeds or titles were not filed or recorded. Ms. Clauson affirmed that it is staff's opinion that the recordation of the parcel maps ( Resubdivision Nos. 56 and 61) created two parcels and the underlying four lots no longer exist. Even though they were re- subdivided as two lots, as shown by City and County records, apparently they were never deeded off separately. Public Comment was closed. Commissioner Ridgeway stated he believes that the lots, as they are now, are an eyesore and that the applicant's work is of high quality and will enhance the neighborhood. A precedent is there, as across the street on K Street there are houses on 30 foot lots. Motion was made by • Commissioner Ridgeway to uphold the decision of the Modification • City of Newport Beach Planning Commission Minutes November 20, 1997 Committee to permit Resubdivision No. 1029 subject to the findings and conditions in Exhibit A. Motion was supported by Commissioners Fuller and Gifford agreeing this specific project will improve the area. Motion was opposed by Commissioner Selich. He stated that after, looking at the area and the property, four additional houses is not going to add anything to the neighborhood as there is a mixture of larger and smaller lots. The original subdivision was wiped out with the reparcelization of the property and if presented with the subdivision of the smaller lots like this today without the fact of the underlying subdivision, Commission would not be likely to approve. Call for the vote: Ayes: Fuller, Ridgeway, Kranzley, Gifford, Adams Noes: Sellch Absent: Ashley Findings: • 1. That the proposal is consistent with the General Plan and the Local Coastal Program Land Use Plan since the lots are designated for single - family development, a permitted use in this area. 2. That the proposed project is categorically exempt from the requirements of the California Environmental Quality Act under Class 5 (Minor Alterations in Land Use Limitations) and Class 15 (Minor Land Divisions). 3. That the proposal will not be detrimental to persons, property or improvements in the neighborhood and that the resubdivision, as approved, would be consistent with the legislative intent of Title 20 of the Newport Beach Municipal Code, for the following reasons: • That the design of the subdivision will not conflict with any easements acquired by the public at large for access through or use of the property within the proposed subdivision. • That public improvements may be required of a developer per Section 19.08.020 of the Municipal Code. 4. That an exception to the site area and width requirements of the R -1 District is necessary because the proposed lot widths • and sizes are compatible with the surrounding area and the 4 ll.lr7� • City of Newport Beach Planning Commission Minutes November 20, 1997 same size as the lots of the underlying subdivision (30 x 100 lots, or 3,000 sq. ft.) when the Eastside Addition to the Newport Beach Tract was established. 5. That the lots created will not result in nonconforming conditions with respect to setbacks because the Zoning Districting Maps designate "K" Street as the front of the lots. 6. That in order to enhance vehicular maneuverability in the rear alley that intersects Balboa Blvd., the proposed lots will provide a 10 foot setback on the first floor (5 feet on the second) where 5 feet is required. 7. That the following findings can be made to grant an exception to the Subdivision Code for lot width and area. • That there are special circumstances that affect the properties, specifically, the lots were subdivided in 1905 into 4 lots; and then resubdivided in 1957 (from 4 lots to 2 parcels), for the purpose of constructing two new single family dwellings, and re- orienting the two new lots towards East Balboa Blvd. The proposed construction did • not occur. • That the exception is necessary for the preservation and enjoyment of substantial property rights of the applicant because the proposal will not create additional lots over and above that which is specified in the Land Use Element of the General Plan and the applicant wishes to enjoy the same property rights of other property owners in the area to develop houses on 30 foot wide lots as exhibited by the lots across "K" Street. • That the granting of the exception will not be detrimental to the public welfare or injurious to other property in the vicinity since the proposed single family development is comparable and compatible to the surrounding development than the existing condition for the following reasons: • The lots across "K" Street are oriented toward "K" Street the same as the proposed subdivision, whereas the lots across the alley at the rear are oriented toward Balboa Boulevard, the current situation of the subject property. Consequently, the views from the four single family dwellings across "K" Street will be the fronts of four single family dwellings rather than the long side of a single family dwelling. • The view from the property across the alley at the rear will be that of the rear of four single family dwellings • rather than the long side of a single family dwelling 5 INDEX • City of Newport Beach Planning Commission Minutes November 20, 1997 which could be built to within 4 feet of the alley property line, based on the required setbacks of the existing lots. • The orientation of the proposed lots will increase open space, light and air to the properties located to the front and rear of the subject lots created by the six foot distance between the four proposed dwelling units because of the required side yard setbacks. • The development proposed by the subdivision will provide a greater rear yard setback at the alley which will improve light and air to the properties located across the alley. • The corner cutoff dedications at the intersection of the two alley and the intersection of the two streets required by the subdivision approval will contribute to the protection of the public welfare and not be injurious to the other property in the area. • Adequate infrastructure exists in the area to serve the access and traffic circulation needs of the area and adequate sewer capacity also exists to serve the additional needs of the area. • Because the subdivision originally planned for four single • family dwellings in this block. • That the requirement to secure substantially the objectives of the regulation to which the exceptions are granted, as to light, air and the public health, safety, convenience and general welfare can be achieved for the following reasons: • The Code currently allows for the construction of a building on the interior lot that can span across the rear of the four lots maintaining a 4 foot side yard setback and also allows a fence or wall to be erected on the alley property line. Staff believes that the proposed development of four individual structures will be less obtrusive since: • The development proposed by the subdivision will provide a greater rear yard setback (5 feet) at the alley which will improve light and air to the properties located across the alley. • The increased rear yard setbacks at the alley (10 feet at the ground floor) for the four lots will provide greater open area, safety, convenience and maneuverability for traffic through the alley than the existing condition allows. • The setbacks between the four proposed dwelling units will provide more light and air than the existing lot configuration to the properties across the alley and "K" . Street and will reduce the visual impact permitted by the INDEX • City of Newport Beach Planning Commission Minutes November 20, 1997 existing condition. Consequently, the views from the four single family dwellings across "K" Street will be the fronts of four single family dwellings rather than the long side of a single family dwelling. The required comer cutoffs at the intersection of the two alleys and the intersection of the two streets will improve traffic circulation in and around the properties and improve pedestrian safety in the area by providing increased sight distance at the intersections of the streets and alleys. Conditions: 1. That a parcel map be recorded prior to the issuance of Building Permits unless otherwise approved by the Public Works and Planning Departments. That the parcel map be prepared on the California Coordinate System (NAD83) and that prior to recordation of the parcel map, the surveyor /engineer preparing the map shall submit to the County Surveyor a digital - graphic file of said map in a manner described in Sections 7 -9 -330 and 7- . 9 -337 of the Orange County Subdivision Code and the Orange County Subdivision Manual, Sub - article 18. 2. That prior to recordation of the parcel map, the surveyor /engineer preparing the map shall tie the boundary of the map into the Horizontal Control System established by the County Surveyor in a manner described in Sections 7 -9 -330 and 7 -9 -337 of the Orange County Subdivision Code and the Orange County Subdivision Manual, Sub- article 18. Monuments (one inch iron pipe with tag) shall be set on each lot comer unless otherwise approved by the Subdivision Engineer. Monuments shall be protected in place if installed prior to completion of the construction project. 3. That all improvements be constructed as required by Ordinance and the Public Works Department. 4. That arrangements be made with the Public Works Department in order to guarantee satisfactory completion of the public improvements, if it is desired to record a parcel map or obtain a building permit prior to completion of the public improvements. 5. That each dwelling unit shall be served with an individual water service and sewer lateral connection to the public water and sewer systems unless otherwise approved by the Public Works • Department and the Building Department. INDEX . City of Newport Beach Planning Commission Minutes November 20, 1997 6. That Park Dedication fees for three units be paid prior to the recordation of the parcel map. That a 10 foot radius corner cutoff at the corner of East Balboa Boulevard and "K" Street be dedicated to the public. 8. That a 5 foot by 5 foot comer cutoff be dedicated at the intersection of the two alleys adjacent to lot 12 as shown on the site plan. That a 10 foot first floor setback be provided in the alley off of Balboa Boulevard where garages are located in order to provide a minimum 20 foot backing distance unless otherwise approved by the Public Works Department. 10. That the comer cutoff area at the intersection of the two alleys be paved with a minimum of 6 inch concrete pavement; that a curb access ramp be constructed at the corner of East Balboa Boulevard and "K" Street; that the deteriorated and displaced sections of sidewalk be reconstructed along the East Balboa . Boulevard and "K" Street frontage; and that an encroachment agreement be executed by the owner for maintenance of the existing brick improvement in the East Balboa Boulevard frontage or that the bricks be removed and the parkway restored to grade. That all work shall be completed under an encroachment permit issued by the Public Works Department. 11. That all vehicular access to the property be from the adjacent alley. 12. That County Sanitation District fees be paid prior to issuance of any building permits. 13. 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. 14. That overhead utilities serving the site be undergrounded to the nearest appropriate pole in accordance with Section 19.24.140 of the Municipal Code unless it is determined by the City Engineer that such undergrounding is unreasonable or impractical. • 15. That Coastal Commission approval shall be obtained prior to INDEX • City of Newport Beach Planning Commission Minutes November 20, 1997 recordation of the parcel map. 16. That this resubdivision shall expire if the map has not been recorded within 3 years of the date of approval, unless an extension is granted by the City Council. SUBJECT: Houston's Restaurant (Joseph Coriaty, contact person) 850 Avocado Avenue (former site address 2400 East Coast Highway) • Use Permit No. 3616 A request to approve a use permit to allow the construction of an 8,630 square foot, single -story full- service outdoor restaurant with bar, patio dining and related off - street parking in Corona del Mar Plaza. The operational characteristics of the proposed facility included in the use permit are as follows: • provision of alcoholic beverage service, • limited live entertainment (a piano with occasional vocalist) in the • bar, • a request to waive restaurant development standards specified by Section 20.82.040 of the Newport Beach Municipal Code, • the approval of outdoor dining in excess of that allowed by the City's accessory outdoor dining provisions. Ms. Temple distributed a copy of proposed changes to conditions of approval. She noted that the Corona del Mar Plaza project was previously reviewed and approved by both the Planning Commission and City Council. This restaurant has unique characteristics as it is predominately an outdoor service restaurant. There was an original continuance and a follow -up report supported by a letter submitted by the applicant suggesting amended conditions of approval. These conditions came about as a result of discussion between the property owner and nearby residents with concerns regarding the project. The further modifications to conditions of approval are: Modified Condition 9: That the applicant shall retain a qualified engineer specializing in noise /acoustics to monitor the sound generated by the live entertainment or any noise generated by the project to insure compliance with these conditions, if required by the Planning Director. New Conditions 38 and 39: • That deliveries, refuse /grease collection or similar activities for the Item No. 2 UP No. 3616 Approved INDEX • City of Newport Beach Planning Commission Minutes November 20, 1997 facility shall be permitted only between the hours of 7:00 a.m. and 10: p.m., daily, unless otherwise approved by an amendment to this use permit. That the Planning Director, in accordance with the provisions of Chapters 10.26 and 10.28 of the Newport Beach Municipal Code, shall address complaints of excessive noise of any source generated by the restaurant operations and require mitigation measures as appropriate. Public Comment was opened. Mr. Bob Lynn, 2525 East Comeback Road, Phoenix, AZ, Vice President of Houston's Restaurant spoke to the Commission. At Commission inquiry, he stated that he has read the findings and conditions including the new conditions and is in agreement with them. Mr. John Robertson, 2509 Harbor View Drive - spoke in support of this application. As a neighbor he noted that the Irvine Company set up a meeting with the applicant and met with residents from Harbor View Hills to address concerns. He thanked them for this courtesy and asked that • the Commission approve the application. Public Commentwas closed. Motion was made by Commissioner Selich to approve Use Permit 3616 with the findings and conditions in Exhibit A with the amended and additional conditions. Without objection, motion passed by acclamation. Findings: That the Land Use Element of the General Plan designates the site for "Retail and Service Commercial' use. A restaurant is a permitted use within this designation. 2. That this project has been reviewed, and it has been determined that all significant environmental concerns for the proposed project have been addressed in a previously certified environmental document (EIR No. 154, certified by the City of Newport Beach on November 25, 1995), to address the requirements of the California Environmental Quality Act. 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 10 INDEX. • City of Newport Beach Planning Commission Minutes November 20, 1997 development beyond those already addressed through Site Plan Review No. 74. 4. That the purpose or intent of the restaurant development standards related to site requirements, walls and landscaping, will not be achieved to any greater extent by strict compliance with those requirementsfor the following reasons: • Site requirements related to walls and landscaping are addressed by the previously approved Site Plan Review No. 74 and the requirements specified by the Newport Village Planned Community District Regulations. • Walls in full compliance with the standards would. adversely impact traffic circulation and access to the on- site parking spaces from the reciprocal parking areas. • The increased landscape area will achieve conformance with the development standard as it relates to the percentage of landscaping required on -site; and the addition of landscaping at the front and rear of the property behind the building will not enhance the streetscape views. • The provision of the required landscaping along the • property lines would adversely affect the access to the on -site pool of parking and the project access shared with the library. 5. The approval of Use Permit No. 3616 and related accessory outdoor dining 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 residential uses since restaurant uses are typically allowed in commercial districts and conditions of approval and limited hours of operation have been included which should prevent problems associated with noise generated by the facility. • The parking demand of the facility can be adequately accommodated by the reciprocal pool parking available on -site. • The potential for problems associated with hours of operation and noise generated by the proposed restaurant operation is minimized because of the project's location in a shopping center, with East Coast Highway separating it from nearby residential uses. • The orientation of the proposed restaurant with the 11 INDEX . City of Newport Beach Planning Commission Minutes November 20, 1997 outdoor bar area turned away from residences protects against impacts on residential neighbors. • The control of noise can be achieved by the limitation on the location of the specific noise generating activities (live entertainment), the limitations on the speaker system in the outdoor dining and bar areas and compliance with the provisions of the Municipal Code, Community Noise Ordinance. • The proposal will add a new liquor license to an overconcentrated area. However, the alcoholic beverage service is incidental to the primary use of the facility as a restaurant. • The establishment will provide regular food service from the full menu at all times the facility is open; and the limited hours of operation should minimize the potential number of Police and Department of Alcoholic Beverage Control problems in the area. • The proposed outdoor dining area is compatible with the surrounding land uses and its limited hours and recommended conditions of approval on the live entertainment and outdoor paging /speaker system . should prevent noise from adversely impacting the nearby residential uses. • The proposed accessory outdoor dining will not be located so as to result in a reduction of existing parking spaces. • The restrictions on the use of solid roof structures as applied to this approval are consistent with the intent and purpose of the accessory outdoor dining. Conditions: 1. That development shall be in substantial conformance with the approved site plan, floor plan and elevations, except as noted below. 2. That all applicable previous conditions of approval of Site Plan Review No. 74 and its accompanying applications shall be fulfilled and remain in force (dated December 29, 1995), except as noted below. 3. That the hours of operation of the restaurant shall be limited to between 6:00 a.m. and midnight, daily. Any increase in the hours of operation shall be subject to the approval of an amendment to this Use Permit. 4. That regular food service from the full lunch /dinner menu shall 12 INDEX • City of Newport Beach Planning Commission Minutes November 20, 1997 be made available at all times the facility is open. 5. That the live entertainment shall be limited to a piano, as background music only with no amplified sound. 6. That live entertainment up to 2 performers, non - amplified, may be approved by the Planning Director on a case -by -case basis taking into consideration such factors as: 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 approval. Any increase in the number of performers beyond two persons or the addition of sound amplification shall require the approval of the Planning Commission. 7. 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 10:00 p.m. and 7:00 a.m. interior exterior interior exterior Measured at the property line of commercially zoned property: N/A 65 dBA N/A 60 dBA Measured at the property line of residentially zoned property: N/A 60 dBA N/A 50 dBA Residential property: 45 dBA 55 dBA 40 dBA 50 dBA 8. That speakers located in the outdoor dining areas of the restaurant or bar area shall be limited to no more than the noise level criteria specified in Condition No. 7 above, and shall comply • with the provisions of Chapter 10.26 of the Newport Beach 13 • City of Newport Beach Planning Commission Minutes November 20, 1997 Municipal Code. Should any music emanating from the patio speakers or indoor live entertainment be heard at the near side corner of the intersection of Sea Lane and Harbor View Drive, the patio speaker volume shall be reduced and the appropriate restaurant windows shall be closed, as determined by the Planning Director, to eliminate any noise impacts. Further, that the speakers shall not be utilized in conjunction with the sound system of the live entertainment or paging of patrons. The outdoor speakers will be utilized for ambient background noise effect and shall be limited to pre- recorded music only. That the applicant shall retain a qualified engineer specializing in noise /acoustics to monitor the sound generated by the live entertainment or any noise generated by the project to insure compliance with these conditions, if required by the Planning Director. 10. 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. 11. 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 use of the outdoor dining area in conjunction with the restaurant. 12. That amplified music or entertainment shall be prohibited in the outdoor dining areas, with the exception of the patio speakers for background music. 13. That should any approved live entertainment performed which noise level on the outdoor dining area exceeds the criteria set forth in Conditions of Approval Nos. 7 and 8, the Planning Director may require the closure of doors and windows on the southerly side of the building leading to the outdoor dining area, or as deemed necessary, to achieve the specified noise level. 14. That roof coverings over the outdoor dining area shall not have the effect of creating a permanent enclosure, unless a use permit is first approved by the Planning Commission. • 15. That no temporary "sandwich" signs, balloons or similar temporary 14 INDEX • City of Newport Beach Planning Commission Minutes November 20, 1997 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. 16. That all signs shall conform to the provisions of Newport Village Planned Community District Regulations and the Municipal Code. 17. That landscaping shall be provided in accordance with the provisions of Site Plan Review No. 74 and the Newport Village Planned Community District Regulations. That a landscape and irrigation plan shall be submitted in conjunction with plans for and approved by the Public Works Department, the Planning Department and Community Services. 18. That a landscape and irrigation plan for the site shall be approved by the Public Works and Planning Departments. Landscaping shall be provided along the street frontages of East Coast Highway and MacArthur Boulevard to provide adequate • screening from the neighboring residential uses. The landscaping shall be installed in accordancewith the prepared plans. 19. That the proposed restaurant facility and related parking shall conform to the requirementsof the Uniform Building Code. 20. That the project shall comply with State Disabled Access requirements. 21. That all improvements be constructed as required by Ordinance and the Public Works Department, and in accordance with the requirements and conditions of approval of Site Plan Review No. 74. 22. That the on -site parking, vehicular circulation and pedestrian circulation systems be subject to further review by the City Traffic Engineer. 23. That at least 4.9 parking spaces for each 1,000 sq.ft. of gross floor area shall be provided for the proposed facility. 24. That all employees shall park on -site. 25. 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 15 INDEX • City of Newport Beach Planning Commission Minutes November 20, 1997 Newport Beach Municipal Code, Community Noise Control. 26. That grease interceptors shall be installed on all fixtures in the restaurant where grease may be introduced into the drainage systems, unless otherwise approved by the Building Department and the Public Works Department. 27. That kitchen exhaust fans shall be designed to control smoke and odor to the satisfaction of the Building Department. 28. That the project shall be designed to eliminate light and glare spillage onto adjacent properties or uses. That prior to issuance of a certificate of occupancy, the applicant shall demonstrate to the Planning Department that the exterior lighting system has not been altered or that it has been designed, directed, and maintained in such a manner as to conceal the light source and to minimize light spillage and glare to the adjacent properties.The plans shall be prepared and signed by a licensed Electrical Engineer acceptable to the City, with a letter from the engineer stating that, in his opinion, this requirement has been met. That prior to issuance of the certificate of occupancy or final of • building permits, the applicant shall schedule an evening inspection by the Code Enforcement Division to confirm control of light and glare specified by this condition of approval. 29. That trash receptacles for patrons shall be conveniently located both inside and outside of the proposed facility, but shall not be located on or within any public property or right -of -way. 30. That storage outside of the building in the front or at the rear of the property shall be prohibited, with the exception of the required trash container enclosure. 31. That all trash shall be stored within the building or within dumpsters stored in the trash enclosure, or otherwise screened from view of neighboring properties except when placed for pick -up by refuse collection agencies. That the trash dumpsters shall be fully enclosed and the top shall remain closed at all times, except when being loaded or while being collected by the refuse collection agency. 32. That the applicant shall maintain the trash dumpsters or receptacles so as to control odors which may include the provision of fully self contained dumpsters or may include periodic steam cleaning of the dumpsters, if deemed necessary by the Planning Department. 16 INDEX • City of Newport Beach . Planning Commission Minutes November 20, 1997 33. That the operator of the food service use shall be responsible for the clean -up of all on -site and off -site trash, garbage and litter generated by the use. 34. That 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. 35. That no dancing shall be permitted in conjunction with the permitted use, unless an amendment to this use permit is first approved. 36. 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. 37. That this Use Permit shall expire unless exercised within 24 months 411 from the date of approval as specified in Section 20.91.050 of the Newport Beach Municipal Code. 38. That deliveries, refuse /grease collection or similar activities for the facility shall be permitted only between the hours of 7:00 a.m. and 10: p.m., daily, unless otherwise approved by an amendment to this use permit. 39. That the Planning Director, in accordance with the provisions of Chapters 10.26 and 10.28 of the Newport beach Municipal Code, shall address complaints of excessive noise of any source generated by the restaurant operations and require mitigation measures as appropriate. 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. 17 INDEX Item No. 3 Modification Permit No. 4599 Decision Reversed Denied City of Newport Beach Planning Commission Minutes November 20, 1997 Ms. Temple noted that the decision of the Modifications Committee authorized the construction of a second floor bedroom over an existing single car garage which was previously approved through a modification to encroach 7 feet into the required 10 feet rear yard setback. This is a very difficult case with a number of competing issues which create challenges in devising a solution acceptable to both the applicant and appellant. Commissioner Fuller asked Ms. Clauson to review the charge to protect private views. He was answered that private views may be considered to the extent that it is a factor in making the required findings. Public Comment was opened. Mr. Christopher R. Colvin, 3955 Birch Street, #202, spoke on behalf of Ms. Nita Heckendorn. He presented and put up a large scale map. Referencing the exhibit he continued saying that the project as submitted does not adversely impact the light, air, views or general health, safety and welfare of the neighborhood and public. Following the Modifications approval discussions were held with staff to further . improved the situation. The revised elevations bring the height of the ridge down a total of 8 inches from the original submittal. Referencing the exhibit he explained that due to the project being built on a hill, with varying grades, the height regulation requirements are complied with. The property behind his client's house has a deck, the face of their wall is 18 feet from their property line, with the 3 feet of the existing garage in the proposed 2nd floor addition, the distance between the two building faces is 21 feet. Typically in Corona del Mar, the side yard distances between properties is 3 feet to the property line giving 6 feet between the building faces. This property is an unusual condition as it was once subdivided and consequently (pointing to the specific property side) this became a rear yard setback. The appellant's house was built with the luxury of the modification process as it encroaches in all the setbacks and is over the buildable area. Because of the unusual circumstances of this subdivision, allowances had to be made. • (referencing the exhibit, Mr. Colvin showed: • the cone of vision over property in question and • where the view would not be impacted and • where it would be two feet higher than the existing ridge • 24 foot height limit and ridge line of 29 feet • differences between the two buildings • differences in grade lines • orientation to ocean view • two houses on separate properties Ill INDEX City of Newport Beach Planning Commission Minutes November 20, 1997 Mr. Colvin concluded stating that when it comes to views, and protecting those views, no neighboring property has the right to claim what is outside the allowable envelope of development. If the house at 3000 Ocean Boulevard was to be removed a volume much wider than the garage and much higher than the existing residence could be built and views would be lost. If there was an encroachment into or above what was allowable, a complaint would be reasonable. The separation of the two buildings is significant, so the light and air on the adjourning property is not impacted. At Commission inquiry, he stated that the elevation difference between the front property line on Ocean Boulevard to the back property line of the property is 6 feet. Steve Magro 18002 Irvine Blvd., Ste 105, Irvine spoke as attorney for Mrs. Heckendorn. He stated that this is only a simple addition of a bedroom over a single car garage and not a new encroachment as far as ground level is concerned. There is no legal requirement to preserve views, however, it can be taken into account. The Bells' own counsel at the Modifications hearing stated that view was not an issue, the issues were light and air only. Now, the issue is view. The view from the Bell property is principally over Iris Avenue not Ocean Boulevard which was taken into account by the Modifications Committee. They required the • deck addition to be 50% open or glass so that the view over Iris Avenue would be preserved. There is plenty of light and air for the Bell property. Mrs. Nita Heckendorn, 3000 Ocean Blvd., Corona del Mar, applicant stated that the property is old and has been remodeled at a great expense and care. This modification to add a second bedroom is not inappropriate and will not impact the neighbors. At Commission inquiry, she stated that she had remodeled the Bell's house installing windows and a bathroom prior their purchase. Mrs. Jennifer Bell, 210 Iris, appellant, presented a colored real estate flyer of her home. Continuing, she stated that she and her husband requests the Commission to reverse the decision of the Modification Committee for 3000 Ocean Blvd. She then described the sequence of their purchase of the property from Mrs. Heckendorn relative to the timing of the submittal of this application. Continuing, she stated that this permit would allow construction that would obliterate the majority of the view from the roof deck and darken the living and dining rooms on the second floor and the master bedroom on the first floor. The argument has made by Mr. Colvin that the view is towards Iris Avenue but the living and dining area has no windows that face Iris Avenue and has six glass doors that will now face Ms. Heckendorn's new wall. The master bedroom on the first floor has five windows facing the new structure which will encroach into 70% of the legal setbacks between the properties. On several occasions, it has been requested that Ms. • Heckendorn erect story poles so that we could all see the construction 19 INDEX • City of Newport Beach Planning Commission Minutes November 20, 1997 impact, she has consistently refused. Based on the fact that Mr. Colvin did the major remodel, he was asked if windows could be installed on the Iris Avenue side. He said that was structurally impossible because of the large expanse of glass facing Ocean Boulevard. Concluding, she asks that the Planning Commission enforce the current building codes in order to protect the value of her investment. For a modification outside the normal building codes to be, granted it should not negatively effect the value or quiet enjoyment of the neighbors. Mr. Colvin has made elaborate arguments on how this will not effect my home, but he and Ms. Heckendorn refused to disclose this proposed addition at the time of escrow. They deliberately distributed this flyer accentuating the views and open spaces of the home, took the money from the sale and plotted to obliterate what was sold to us. A formal litigation has been filed requesting the recision of the real estate contract recognizing that is not a city matter on these grounds, which would allow Ms. Heckendorn to take back her property and re -sell it herself if the value is not significantly affected. She asked that Commission deny the permit with the non - conforming permit at 3000 Ocean. Commissioner Ridgeway highlighted the following: • Ms. Heckendorn's property could be rebuilt with a new substantial home that would impair the view. property has a 10 foot setback off the rear yard • the property line adjacent to Iris is a rear yard and can be built to within 10 feet of the line Mrs. Bell answered and described the views of other homes on Iris and how hers relates to 3000 Ocean Blvd. At Commission inquiry, she stated that she would be amenable to alternatives 3 and 4 as described in the staff report. Discussion continued during which she volunteered to halve the cost of story poles. Dr. Paul Bell, 210 Iris commented on the following: • it was stated during the modification hearing that the establishment of the height of the structure would not influence the view from the roof deck • protect interests in his home plans for 3000 Ocean Boulevard are based on misrepresentation made to the modification committee starting with the original application, mis- measurements on the plan plus statements made • the exception of setbacks • less than legal parking • light, air and view seriously impaired • encroachment approval based on a 1970 application for a single • story, single car garage not a 24 foot living quarter abutment 20 INDEX • City of Newport Beach Planning Commission Minutes November 20, 1997 a parking space placed directly against a back door of the home with dimensions of 8 ft by 20 ft is somehow adequate to cover off street parking per the code if a car is parked in that 20 ft area, there is no way to exit the rear of the house in case of fire is willing to work out a compromise He concluded asking for denial of this project. Chairperson Kranzley asked Mr. Colvin if the applicant would be opposed to story poles and was answered yes, she did not want to pay forthose. Mr. Colvin at commission inquiry stated that: • alternatives 3 and 4 as suggested in the staff report are not acceptable. • The window that is being accommodated within the design is 10 feet wide by 11 feet 6 inches tall and is on the easterly side yard. (referencing the map, he pointed out the placement of the window). Discussion continued on the feasibility of removing the garage, stress for a second story, construction methods. . rear yard setback if the garage was against the rear wall of the house would be 13 feet • 2nd floor deck on 210 Iris is 6 feet from the property line Public Comment was closed. Commissioner Ridgeway stated that this is a clear dispute. The applicant says she does not have the money to pay for story poles, yet, she just sold a house for % million dollars. This is a matter of misconstrued facts and based upon the testimony supports the appeal. There is an outside legal matter that Commission is not concerned with, however, based on our ordinances, we can make a finding that the appeal should be granted to deny the modification. Commissioner Fuller stated that he had hoped there would be a middle ground when staff proposed alternatives 3 and 4 where everyone would give a little. However, since these are unacceptable to the applicant, we are forced to look at alternative 1 or 2 and he supports the appeal. Commissioner Selich stated that in light of the applicant's refusal to cooperate with the neighbors, he supports the appeal also. The view is not really an issue that the city should be involved with, but there is an issue with encroaching into a side yard setback of how close to allow, given the effect on open space and use of property. It is obvious that • 210 Iris property has already taken advantage of a modification on the 21 INDEX • City of Newport Beach Planning Commission Minutes November 20, 1997 deck going one way and now there will be the first floor of the garage on the applicant's property taking advantage of a modification encroaching into the setback in the other direction. Now there is a request to add a second story on top of that. If the appellants are objecting to that, and the applicant is not willing to try to work out some type of compromise with them then he supports the appellants. Motion was made by Commissioner Ridgeway to grant the appeal according to the findings in Exhibit B for denial of Modification Permit No. 4599. Call for the vote: Ayes: Adams, Gifford, Kranzley, Selich, Ridgeway, Fuller Noes: none Absent: Ashley FINDINGS: 1. The approval of Modification Permit No. 4599 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 or be detrimental or injurious to property or improvements in the neighborhood or the general welfare of the City for the following reasons: There is adequate space within the buildable area of the site to accommodate the proposed second floor addition without encroaching into the rear yard setback with the new construction. The proposed construction will adversely impact the flow of light and air to the residential property immediately adjacent and to the rear of the subject property. The dimensions of the propose uncovered parking space between the dwelling and the garage is not of sufficient width or depth to accommodate the parking of a vehicle without encroaching into the public right -of -way. 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) 22 INDEX Item No. 4 Planning Director's Use Permit No. 14 Continued to 12/4/97 • City of Newport Beach Planning Commission Minutes November 20, 1997 to a full- service small scale eating and drinking establishment; and alter the operational characteristics to: • increase the interior seating from 20 to 25 and • add alcoholic beverage service (beer and wine only) Staff has determined that the application, as currently proposed, requires a waiver or modification of the parking requirement. Therefore, staff recommends that this item be continued to the meeting of December 4, 1997, to allow the applicant additional time to modify the application and to re- notice the public hearing. The matter as currently presented cannot be acted upon by the Commission. Motion was made by Commissioner Gifford to continue this item to December4, 1997. Without objection, motion passed by acclamation. SUBJECT: Activities Incorporated (Kathy Miller, applicant) 501 30th Street is • 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 entertainment and dancing. Ms. Temple noted that subsequent to the distribution of the staff report, staff received a copy of a letter addressed to Chief Bob McDonell of the Newport Beach Police Department (copy of which was distributed to Commission). This letter indicates the Department of Alcoholic Beverage Control's determination that no one day ABC licenses nor caterer's authorizations would be issued to this particular location and that no consideration of any licensing on this property will be considered until July 1, 1998. On that basis, since staff's original recommendation included an accommodation for twelve events per year which may include the sale and service of alcohol beverages in conjunction with the approval of a Special Event Permit should be eliminated. Therefore, staff would like to suggest two condition changes. The first in Condition No. 5 on page 17 of the staff report would remove the phrase, ......on a regular basis, with the exception of those activities or events permitted in conjunction with a special event permit,....:' and further a change to Condition No. 9 on • page 18 of the staff report which would eliminate the phrase, .......and 12 23 Item No. 5 UP No. 3614 Continued to 2/19/98 INDEX City of Newport Beach Planning Commission Minutes November 20, 1997 special event permits for events or activities which include the service of alcoholic beverages..." This particular project is a first of its kind, a new type of application for the City to consider. The proposed project presets a number of challenges by way of conditions of approval and the need to control the operation in order to ensure that it operates comfortably within the community. Of particular note is staff's concern regarding a limitation on occupancy based on the parking available for the project. While the recommendation is appropriate given the area and its parking arrangements, staff wishes to emphasize to the Commission that this type of condition is difficult to enforce on an on -going basis and typically we would have to rely on complaints from the neighborhood. The other primary concern is the fact that, as opposed to a more conventional restaurant operation, patrons attending this facility for a banquet or conference will arrive and depart in groups as opposed to individuals arriving /departing at various times during the business hours. This should be carefully considered by the Commission given the context of this neighborhood and the surrounding land uses. Commissioner Fuller asked to be excused to do a potential conflict of • interest as he owns land located within 300 feet of this project. Commissioner Giff ord inquired about the wording in Condition 9, asking if "..which would be outside the control of the applicant..:" means that the operator could lease out the facility to be used by any group and not have any responsibilityfor the operation? Ms. Temple answered that we have stated this would allow another operatorto come in and not be the applicant in this case. However, they would be required to comply with the conditions of approval. This has to do with the leasing out of the facility to an outside promoter or entity when the actual operator of the facility is not in direct control of that operation. The purpose of the condition is to place a strict limit on those to a maximum of 12 per year. Because a special event permit is required, the use permit conditions would be referenced in the special event permit and compliance would be required. The special event permit could be obtained by either entity. Public Comment was opened. Kathy Miller, 3328 Via Lido, applicant, stated that her company has been in Newport Beach for 18 years providing hospitality for corporate business as well as parties and catering. This use permit was applied for based on extensive work with 110 high schools within the area. She then passed out a list of currently used venues off site that she is using the kitchen for. . The use permit, with minimal use of alcohol, is being requested to support 24 INDEX • City of Newport Beach Planning Commission Minutes November 20, 1997 the venue, and will not impact the area. This will be an asset to the communityrather than a detriment. She is not planning to obtain a liquor license but will ask to work with the ABC on a catering permit. The venue is planned to host 100 to 200 high school students. This venue will also host Christmas parties as that will be a source of income one month out of the year. Limiting such events to 12 events a year would be an extreme hardship as that limits Christmas business. She is looking for 90 events a year, 60 would be high school functions sponsored by the school such as proms, winter formals and sports banquets. Corporate functions with alcohol use would occur, as well as use by entities such as Four Seasons Hotel, the Ritz Carlton, the Marriot, the Cannery where patrons will be bused. They all have catering permits that they are allowed to file on a venue with their private group for designated parties. This is the only time alcohol usage or sales of alcoholic beverages would be included, also, wedding receptions would occur where the father of the bride brings the alcohol. 60% of the business is strictly related to high schools. Chairperson Kranzley noted that the request also includes live entertainment and was answered that there is a music system, but they have used a band and there have been karooke singers. Live entertainmentis part of the application. • John Loomis, Thirtieth Street Architects, Inc., 2821 Newport Boulevard spoke on behalf of the applicant. This is a unique project and the use does not fit in to any particular category within the Zoning Code. This is a private event facility and not open to the public. Over 70% of the uses proposed by the applicant, involve students. Looking at the number of events and the time for preparation and clean up, using 6 hours per event would result in 540 hours of actual use at this venue by invited guests at private affairs. Compared to previous uses this is a reduction in use. This particular building is one of the more sound -proof building. Ms. Miller has incorporated security measures. Security people are on site on the exterior of the building that monitor activities. During high school events, if a person leaves an event, they are not allowed back on site. These are sponsored by the high school and not private parties. He then presented a handout listing 8 proposed changes to conditions. • net public area shall not exceed 2670 sq. ft. (condition 2) • hours of operation for live entertainment and dancing compatible with hours of food and beverage service on Fridays, Saturdays and holidays (condition 3) • sale or service of alcoholic beverages for on -site consumption be permitted for up to 30 events per year and no special event permit shall be required for these events (condition 5) • occupancy of weekday events prior to 5:00 p.m. shall be limited to maximum of 57 persons unless bus and /or limousine service is • provided and weekday nighttime, weekend and holiday events after 25 INDEX • City of Newport Beach Planning Commission Minutes November 20, 1997 5:00 p.m. shall be limited to 126 persons unless bus and /or limousine service is provided. If bus and /or limousine service is provided, occupancy of any event shall not exceed 175 for sit down dining and 225 for mixed events condition 6 • delete condition 7 • delete condition 15 • delete first bullet item that states "any event or activity which includes the sale or service of alcoholic beverages for on -site consumption" condition 8 • delete "...and 12 special events permits for events or activities which include the service of alcoholic beverages shall be permitted per calendoryear." Condition 9 Parking is unique as Ms. Miller's use involve buses and limousines over 7017. of the time. A bus, purchased as part of the business, is provided for many of these events. Therefore, they are asking for a greater capacity and occupancy. At Commission inquiry, it was answered that: • a convention or corporate dinner - patrons will be bussed in and dropped of . proms- 50% of attendees arrive in limousines or buses • there will be one bus per typical event, ten limousines and or private • cars • bus will park in Costa Mesa after the passengers have departed • generally buses and limousines will not be allowed to stay on site Ms. Temple noted that due to the letter from the ABC, a modification to condition no. 8 would be to eliminate the first bullet "...any event or activity which includes the sale or service of alcoholic beverages for on- site consumption:' A representative of the Police Department is here for Commission to ask questions of if needed. Officer Brad Greene, Vice and Intelligence of Newport Beach Police Department. At Commission inquiry he stated that he had read the staff report on this item and stated the Police Department has the following concerns: • if conditions were kept, this project has the possibility of being successful • logistics of the operation - buses and limousines with arrival and mass departures of 100 to 200 people in the Cannery area would be a problem to the department • the streets in that area are small and tight and not an outstanding area for that amount of people • he stated that it is his belief that the intent of the ABC letter is that.this is a dry facility until such time as it can be re- evaluated. 26 INDEX • City of Newport Beach Planning Commission Minutes November 20, 1997 .it�IIA3 Officer Greene related an incident of a Halloween night party when he noted that individuals were outside in the parking area with beers in their hands - he went inside to check and found that donations were being taken which resulted in tickets being used for alcohol. In checking with the ABC, they said it constituted sales. The District Attorney's office felt the same so the applicant was cited for a violation of the 23.300 Business and Professions Code, which is an unlicensed facility (misdemeanor offense). There was a Special Events Permit that night, and condition 9 stated that "no service of alcohol by Activities, Inc:' There was alcohol there, whether it was through a donation or not. During the time of that party and previous 4 parties, there was no business license at the location. The concern of the Police Department is state laws, ABC regulations and City ordinances and permit process that have a history of not being adhered to and the business may have a similar problem with 45 conditions. Commissioner Ridgeway asked about the route buses would take, and also asked if there are cars parked there, can a bus go on Villa? Mr. Dick Hoffstadt, answered that it would be very tight. What is needed is for them to submit a traffic management plan to Traffic for review of placement of buses, limousines, route in and out of town as well as valet • parking. Mr. H. McCulla, 63 Canyon Ridge, Irvine - spoke in support of the applicant stating that he has hired Ms. Miller during the past 18 years for private (2) and corporate parties (6). The quality of her employees, attention to detail and security is outstanding. She has insurance related to alcohol for her clients, accurate on her pricing, never exceeded any permits on parties that he has been involved with. Mr. Thomas Dixon, 31 s+ Street spoke in opposition to this application stating that the facility is approximately 50 - 60 feet from his bedroom. He reminded the Commission of the Council direction to amend Cannery Village Specific Plan to eliminate or limit alcohol related business or discourage such businesses and residential uses in close proximity. An amendment has been adopted regarding convenience and necessity for alcoholic beverage outlets," it is the policy of the City Council that the public convenience and necessity will not be served by the approval of any new or upgraded license or the premises -to- premises transfer of any license for bars and cocktail lounges or cabarets and nightclubs in a location that meets the following criteria. • the location is within an area where the number of crimes is at least 75% higherthan the average of all reporting districts in the City; and • the location is within 200 feet of a property in residential use:' This situation meets both criteria. Approval of this application is in direct conflict with the Council's amendment and resolution. Two of the 27 City of Newport Beach Planning Commission Minutes November 20, 1997 applicant's requests are for the sale and consumption of on -site alcohol and the use of live entertainment and dancing. What is being requested is in defacto a permit to establish a new night club in Cannery Village. Since the residents are compelled to live with armed security guard patrolling our alleys and streets to protect the residents from the patrons of nightclubs already established, the residents ask that you deny this application and prevent the establishmentof another. Jane Elliot, 508 31st Street (20 feet away from this facility) spoke in opposition to the buses leaving their engines on. She spoke in support of the applicant and stated she would probably run a clean operations. The buses will not go down the alley, they will probably go down, 29th, 30th, 31 st, or 32nd in order to make their turn. If they are not housed in the parking lot and are in Costa Mesa, there should be no harm. There has not been any problem during the time the applicant has been in business. Mr. Buzz Person, 507 29th Street stated his back wall faces the subject property. He opposes this application due to the enforcement issues. It will be difficult to discern when there are permitted or not permitted events. This application constitutes an attempt to back door a nightclub • in the City, late hours, food, alcohol, live entertainment, dancing and valet parking. By permitting the applicant to come in with one day applications to serve alcohol, Commission is not doing what is mandated by the City Council. At Commission inquiry, he stated he would be opposed to this application with no alcohol involved. However, if it was an application for a full service restaurant, no live entertainment with alcohol service, he stated he would not be opposed. Ms. Tyler Murray, 32051 Virginia Way, Laguna Beach - as an employee of Ms. Miller, spoke in support of this application stating that Ms. Miller is ethical, staff is kept in line and the students are well cared for. Security guards are hired for these events to keep it safe. She is well organized, follows the rules and is an efficient employer. Don Gregory, 601 Lido Park Drive - spoke in opposition to this application. The Cannery Village is a growing disco district and that is not what the conception of the village was when it was founded. There has been increasing traffic, noise, lack of authority, ill will and lack of responsibility. The crime rate is high, there is nothing peaceful about screaming patrons. Free enterprise is becoming a free for all and that is unfair and wrong. This area can not be monitored efficiently enough. There is no control if this facility would be rented out to different people. He concluded, asking the Commission to stop the proliferation of these discos. Kim Nutter, 363 Via Lido Soud spoke in,support of the applicant. As a • teacher for Santa Ana College she has worked with the applicant for the 28 INDEX • City of Newport Beach Planning Commission Minutes November 20, 1997 past eight years. It is nice to find a facility to go to that has no alcohol and a facility that is very nice. Ms. Miller is very professional. The groups she brings are between 60 and 80 and they have arrived in vans or carpools. Pam Plotkin, 509 31s+ Street spoke in opposition to this application. There will be drinking in cars and while people walking around the building. Hence, there will be noise and vandalism increased as well as the number of people in the Cannery area. The buses and limousines from the Cannery park in front of her store and in the alley behind her property as the alley is bigger than 31 11 Street. Ms. Miller stated she understands the positions and situations of people worrying but this is a private banquet facility and no liquor license is proposed in that location. Public Comment was closed. Commissioner Adams asked staff, with the changes to the conditions that are recommended, is there any way a function that takes place at this facility has alcohol? There is no distinction between sales, is it legal for an • attendee to bring alcohol and drink it on site. Officer Brad Greene, stated that the only way alcohol could be there according to ABC rules if alcohol was brought by someone, i.e., a wedding party set up a host bar, then a one day license would not be required for that. But, anytime you charge at all to get into a place, even if it's free inside that is considered sales. If there is an amount charged at all to get inside, private party or not and there is alcohol, that constitutes sales according to the ABC. CommissionerAdams continued by asking if a client like the Four Seasons, could bring in their own alcohol? Officer Greene stated they would require a catering authorization and per the ABC letter, it would not currently be permitted. Commissioner Gifford summed up the issue as such: the way things stand now, it would only be where the liquor is served in a totally complimentary fashion by the host of the party that alcohol could be served on site and not be in violation. Commissioner Ridgeway offered this scenario: • Activities, Inc. has an event and serves no alcohol, • there are 50 people at that event who paid $100.00 each to attend, • • 1 can be called and told that I can bring alcohol, 29 INDEX • City of Newport Beach Planning Commission Minutes November 20, 1997 • this would not be a violation of the ABC rules? Officer Greene stated this would be a way to circumvent the ABC regulations and make it not a violation. Commissioner Adams stated the issue of mitigating parking demand by the use of buses and limousines is troublesome. The drivers are not going to park the bus during the event, they will be nearby. This applicant may tell me that she will have the bus taken to Costa Mesa but someone who inherits this permit may not. Additionally, limousines take up a lot of room when they park. Commissioner Ridgeway asked staff if Commission could make a condition of off-site parking for busses at a specific location? Discussion continued as to the location of idling buses. Ms. Clauson stated that this could be conditioned and would need to include a circulation and parking management plan approved by the Traffic Division. Commissioner Adams stated there were valid concerns of opposition . during testimony. If the applicant is truthful and 65% of the clientele will be students I don't think this is a problem. Commissioner Gifford stated that we have a commercial piece of property and at some point there has to be a good use established there. There is a lease on the property by Ms. Miller for the catering business. She asked if there was a way to gain some experience with this use without actually approving a Use Permit that runs with the land and is independent of who the operator is while providing for some of the things discussed. Ms. Temple suggested that a review of the use permit at some specific period of time. This has been done on the last couple of permits where there have been issues relating to the operation. Then the City would have some experience relating to the operation and how it actually interactswithin the neighborhood. Ms. Clauson added that the usage would actually be subject to the live entertainment and cafe dance permit. Commissioner Gifford commented that it is a concern that the operator isn't responsible for everything that goes on. Could we have a condition that requires that any special event permit issued for events to be held at that location are required to be taken out by the operator. • Commissioner Ridgeway asked staff to prepare a definition of what an 30 I'Ll 101 • City of Newport Beach Planning Commission Minutes November 20, 1997 event is to which Ms. Clauson stated that she could include all the concerns expressed. Commissioner Selich expressed his concerns of intensity of use at peak times - streets and parking in the area will be limited; all of these conditions will require a lot of monitoring for just this one use. The reason for all the monitoring is the location, so questioned if this is the best use in this location? There are other areas in the city where this could be located without the majority of these conditions. During the testimony, the applicant stated that if she didn't get more than the twelve alcohol related events per year, it really didn't work for her because she couldn't bring in corporations in. So, approving this with staff recommendations would not accomplish what this business needs. Commissioner Ridgeway stated this building has had a difficult time. The noise is negligible, most of the conditions put limitations on what happens in there. The one problem is en. jrcement. The endorsements presented tonight are commendable, but there must be an adequate circulation and parking plan added as another condition. He expressed no problem with everyone coming out at once, other than the bus must be right at the door and everyone must go to the bus. • Chairperson Kranzley asked to review the changes that the applicant has proposed. Commissioner Adams asked staff how the previous events at this site been done and was answered that through Special Events Permits which have been issued on an individual basis. Commissioner Adams suggested to continue the status quo to see if there are problems. Commissioner Gifford supported this option to find out if this is a use that can really be workable there without getting in too deep. Discussion ensued about the costs of a special events permit; circulation and parking plan; staff's approach to permit requirements. Motion was made by Commissioner Ridgeway to continue this application to February 19, 1998 and the operation to be accommodated through the use of special event permit(s) with the conditions and findings in Exhibit A and as amended by staff to be used for-these special event permit (s). Motion was called for: • Ayes: Ridgeway, Selich, Gifford, Adams 31 INDEX . City of Newport Beach Planning Commission Minutes November 20, 1997 • • Noes: Kranzley Abstain: Fuller Absent: The following conditions are to be used as the parameters within which the Special Event Permit(s) are issued per Commission vote. Conditions: That development shall be in substantial conformance with the approved site plan and floor plans, including the seating plans, except as noted below. 2. That the "net public area" of the banquet /conference facility shall be reduced to a maximum of 2,166 sq.ft. and a revised plan depicting the reduction shall be approved by the Planning Director prior to implementation of the use permit. 3. That the hours of operation of the banquet /conference facility 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, except as otherwise provided in conjunction with special event permits. Hours: Food and beverage service: 10:00 a.m. to 11:00 p.m., Sun. - Thurs.; midnight, Fri., Sat. & holidays Live entertainment: p.m., Sun. - Thurs.; p.m., Fri., Sat. & holidays Dancing: p.m., Sun. - Thurs.; Sat. & 10:00 a.m. tol 5:00 p.m. to 11:00 10:00 a.m. to 11:00 5:00 p.m. to 11:00 10:00 a.m. to 11:00 4. That the number of on -site events shall be limited to 90 events per calendar year (total on -site events). Any increase in the number of on -site events shall be subject to the approval of an amendment to this use permit. 5. That the sale or service of alcoholic beverages for on -site consumption shall be prohibited unless an amendment to the INDEX City of Newport Beach Planning Commission Minutes November 20, 1997 use permit is first approved by the Planning Commission to allow for the establishment of a licensed alcoholic beverage service facility including a determination that the proposed use serves the public convenience and necessity. 6. That the occupancy of weekday daytime events prior to 5:00 p.m., shall be limited to a maximum of 57 persons and the weekday nighttime, weekend and holiday events after 5:00 p.m., shall be limited to a maximum of 126 persons. Any increase in the occupancy shall be subject to the approval of an amendment to this use permit. 7. That the property manager or person or entity responsible for the scheduling of the events on behalf of the property owner, shall furnish to the Planning Department and the Police Department a list of the upcoming events on a monthly basis at least two weeks prior to the first day of the month. Also that any revisions to the list submitted shall be made in writing to the Community Services Department, Police Department and the Planning Department a minimum of two weeks prior to the date of the event, unless other arrangements are made with those departments. • 8. 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 to operate beyond hours of operation specified by this approval, with no request for the extension of the closing hour to between 2:00 a.m. and 5:00 a.m. 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. • 9. That a maximum of 12 special event permits for events or 33 INDEX • City of Newport Beach Planning Commission Minutes November 20, 1997 activities operating outside of the direct control of the banquet facility operator or increase in the hours of operation, shall be permitted per calendar year. 10. 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 guards for interior of the facility and parking lot security and crowd control purposes. Additionally, that at least two (2) uniformed security guards shall be present on -site and /or in the parking lot and shall maintain order therein and prevent any activity which would interfere with the quiet enjoyment of property by nearby business tenants and residents. Said personnel shall be clothed in such a manner as to be readily identifiable as security. 11. That prior to the implementation of this approval or scheduling of any special event permit issued by the Community Services Department, the parking lot of the premises shall be equipped with lighting of sufficient power to illuminate the parking lot at a level of at least 1 foot candle of power, measured at ground level and being equally dispersed. Applicant shall provide a • statement from a certified electrical engineer, specializing in lighting, that such a lighting requirement is met, unless otherwise approved by the Police Department in conjunction with the security plan for the facility. 12. That the live entertainment and pre- recorded music shall be limited so that the sound shall be confined to the interior of the structure; and further that when the live entertainment is performed, all windows and doors within the facility shall be closed, except when entering and leaving by the main entrance of the facility. That any entertainment (live, disc jockey, etc.) provided shall not disturb any nearby business or residential use and shall not be audible outside of the building. 13. That the operator of the facility shall be responsible for the control of noise generated by the subject facility. 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 10:00 p.m. • 10:00 p.m. and 7:00 a.m. 34 INDEX • • • City of Newport Beach Planning Commission Minutes November 20, 1997 interior exterior Measured at the property line of commercially zoned property: dBA N/A 60 dBA interior exterior N/A 65 Measured at the property line of residentially zoned property: N/A N/A 50 dBA Residential property: 45 dBA 40 dBA 50 dBA TIT. 55 dBA 14. That the applicant shall retain a qualified engineer specializing in noise /acoustics to monitor the sound generated by the live entertainment or pre- recorded music to insure compliance with these conditions, if required by the Planning Director. 15. That a Live Entertainment Permit and a Cafe Dance Permit shall be approved by the Revenue Division, in accordance with proceduresset forth in Chapters of the Municipal Code. 16. That in conjunction with the Cafe Dance Permit, 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 facility. 17. That the approval is only for the establishment of a banquet /conference type facility as conditioned by this approval, as the principal purpose for the sale or service of food and beverages at off-site locations with a limited number of on- site events which include the sale and /or service of alcoholic beverages for on -site consumption, incidental to the food use (i.e., wedding receptions, banquets and similar type functions). 18. That this approval shall not be construed as permission to allow concerts or a theater /nightclub use as defined by the Municipal Code, unless an amendment to this use permit is first approved by the Planning Commission. 19. That no outdoor loudspeaker, paging or sound system shall be permitted in conjunctionwith the proposed operation. 20. 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 35 INDEX . City of Newport Beach Planning Commission Minutes November 20, 1997 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. 21. That a minimum of 19 daytime parking spaces 42 nighttime /weekend parking spaces shall be provided on -site for the exclusive use of the proposed banquet facility and that the bollards and chains shall be removed during the nighttime and weekend business hours of the subject facility. 22. That the on -site parking, vehicular circulation and pedestrian circulation systems be subject to further review by the City Traffic Engineer. That all buses shall be required to park on -site, unless otherwise approved by the City Traffic Engineer. 23. That a valet parking plan shall be submitted to the City Traffic Engineer for review and approval prior to the implementation of the valet parking service. The use of a valet parking operation shall be provided on a regular basis for evening events, unless an amendment to this use permit is approved by the Planning • Commission. 24. That the bollard and chain locations adjacent to the alley shall be relocated as shown on the Proposed Parking Plan, unless otherwise approved by the City Traffic Engineer. 25. That the unused portion of drive approach along the 30th Street frontage shall be removed and replaced with curb, gutter and sidewalk and that the new portion of drive approach be constructed per City Standards. Modifications to the drive approach will require the relocation of a metered on- street parking space. The City Parking Meter Supervisor must be notified at (714) 718 -3408, a minimum of 72 hours prior to the start of work in order to coordinate relocation of parking meters. The applicant will be responsible for the restriping of the on- street parking spaces as required by the City Traffic Engineer. All work shall be completed under an encroachment permit issued by the Public Works Department. 26. That all employees shall park on -site. 27. That the project shall comply with State Disabled Access requirements. 28. That all improvements be constructed as required by Ordinance • and the Public Works Department. 36 INDEX City of Newport Beach Planning Commission Minutes November 20, 1997 . 29. That the area outside of the food establishment, including the public sidewalks or walkways, shall be maintained in a clean and orderly manner. 30. 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. 31. That the project shall be designed to eliminate light and glare spillage onto adjacent properties or uses. That prior to issuance of a certificate of occupancy, the applicant shall schedule an evening inspection by the Code Enforcement Division to confirm control of light and glare specified by this condition of approval. 32. That the project will comply with the provisions of Chapter 14.30 of the Newport Beach Municipal Code for commercial kitchen grease disposal. 33. That kitchen exhaust fans shall be designed and maintained to control smoke and odor to the satisfaction of the Building Department. 34. That a washout area for refuse containers be provided in such a way as to allow direct drainage into the sewer system and not into the Bay or storm drains, unless otherwise approved by the Building Department and the Public Works Department. 35. That trash receptacles for patrons shall be conveniently located both inside and outside of the proposed facility, however, not located on or within any public property or right -of -way. 36. That storage outside of the building in the front or at the rear of the property shall be prohibited, with the exception of the required trash container enclosure and storage area. 37. That deliveries and refuse collection for the facility shall be prohibited between the hours of 10:00 p.m. and 8:00 a.m., daily, unless otherwise approved by the Planning Director. 38. That all trash shall be stored within the building or within dumpsters stored in the trash enclosure, or otherwise screened from view of neighboring properties except when placed for pick -up by refuse collection agencies. That the trash dumpsters shall be fully enclosed and the top shall remain closed at all times, except • when being loaded or while being collected by the refuse 37 INDEX ,. City of Newport Beach Planning Commission Minutes November 20, 1997 collection agency. 39. That the applicant shall maintain the trash dumpsters or receptacles so as to control odors which may include the provision of fully self contained dumpsters or may include periodic steam cleaning of the dumpsters, if deemed necessary by the Planning Department. 40. That the operatorof the subject facility shall be responsiblefor the clean -up of all on -site and off -site trash, garbage and litter generated by the use. 41. That 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. 42. That any graffiti painted or marked upon the premises or on any adjacent area under the control of the applicant or future assigns shall be removed or painted over within 48 hours of being applied. M43. That exiting plans shall be reviewed and approved by the Building Department and the Fire Department prior to implementation of the proposed banquet facility. Emergency lighting, battery back- up exit signs shall be provided prior to the implementation of the proposed banquet facility use, unless otherwise approved by the Fire Department and the Building Department. 44. 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. 45. 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. 46. That in conjunction with the valet parking plan and use of bus transportation, the applicant shall submit a circulation and parking management plan for review and approval by the City Traffic Engineer and the Planning Director. The plan shall include a vicinity plan and site plan of on -site and off -site locations to be . utilized for the parking of buses and patron vehicles. 38 INDEX City of Newport Beach Planning Commission Minutes November 20, 1997 47. Events shall be limited to private banquets and other functions which are limited to persons who are individually invited and for which no admission charge is made or functions conducted by a bonafide club, church, society, or association having an established membership when admission to the event is not open to the public generally, but is limited to members or their guests. 48. That special event permits for activities to take place on the subject property shall only be issued to the principals of the entity which holds the valid business license for the subject banquet facility. No special event permits shall be issued to any other party or entity for activities or events within the subject facility. That a representative of the subject business entity shall be present on -site at all times of a function or event granted by a special event permit. That representative shall be empowered to close the event upon order of the Police or Fire Departments. «» SUBJECT: Kamal A. Batniji, M. C. 6800 West Ocean front Modification Permit No. 4606 Appeal of the decision of the Modifications Committee which disapproved the application request to permit the retention of "as- built" construction that encroaches into the required 5 foot yard setback. Specific encroachments include: • a first floor room expansion that encroaches 3 feet 8 inches into the required 5 foot front yard setback; and • a second floor balcony that encroaches 5 feet into the required 5 foot front yard setback. Ms. Temple noted that this is an appeal of the Modifications Committee denying the request to retain existing "as- built" construction that encroaches into the required 5 foot front yard setback. The front yard of this particular property is on West Ocean Front on the beach in West Newport. In this particular case, the construction occurred not only in violation of the setback requirements but without proper permitting as well. There is a history of this property within the staff report. However, there is a photo survey which was done by the Public Works Department in 1984 which was done in association with the City's review of the ocean front encroachment issues. That photo survey identified properties by owner and at that time, Mr. Batniji was identified as the owner, so at least as early as 1984 the existing owner was in possession of this property. Public Comment was opened. 39 INDEX Hem No. 6 Modification Permit No. 4606 Denied . • City of Newport Beach Planning Commission Minutes November 20, 1997 INDEX Mr. Bernard A. Leckie of the law firm of Meserve, Mumper and Hughes spoke representing the applicant, Dr. and Mrs. Batniji. He stated: • property was acquired at the end of 1974 or 1975 • Dr. Batniji is a board certified ENT surgeon, on the staff of a major hospital • property acquired as a second residence while living in San Moreno • problems arose in 1987 when an application was made to do some additional remodeling in March • that permit was submitted by the building planner hired by Dr. Batniji • diagram shown to the City showed the five foot front setback in the building in front of the actual structure • no survey was done at that time, which may possibly be a mistake as it is hard to figure out what actually transpired at that time • the application for the balcony portion was denied as for as the encroachment of that balcony into the setback • what was proposed at that time was a five foot balcony with posts that was never built • what was apparently built at that time was the front of the building which encroaches 3 foot 8 inches into the 5 foot front setback with an overhang (balcony) that encroaches an additional 1 foot 4 inches • this was built and inspected by the City • the inspection report does not indicate a final inspection • submitted to the City is a statement by Dr. Batniji's daughter who was present when the City inspector came out and gave his blessing and had no problems with it • in the ensuing years there have been other permits granted for other construction on the premises: 1 1992 - a railing on overhang (balcony) was approved 2 extensive remodeling in the middle of the residence by putting a deck all permitted and approved; 3 as well as cupboards changed in the kitchen were permitted • has always been a law abiding individual • these remodels were done in the trust in the building designer to do it correctly • no one objected until the first objection was recorded in 1995 Mr. Leckie stated that Dr. Batniji has obtained 16 signatures of residents who have no objection to his house the way it is. When he realized how important this was he could get many others. What is being proposed on a building which does not interfere with anybody with a view and does not cause any difficulties whatsoever. To have him take off the front 3 feet 8 inches which includes the overhang for another Ifoot 4 . inches would be a job whose expense would be absolutely staggering, 40 City of Newport Beach . • Planning Commission Minutes November 20, 1997 may be $100,000 +. There is perhaps, a compromise to take off the I foot 4 inches overhang (balcony) portion which would then make the first and second floor flush. This is a shame as the Commission knows, the City is currently pursuing a law suit concerning this matter which is presently in the Orange County Superior Court. Commissioner Ridgeway asked Mr. Leckie about the application for the balcony made in 1987 that was denied. Where did you get that information, and, when was the actual 3 foot 8 inches front of the building constructed? Mr. Leckie said he got the information as a result of discovery in the lawsuit. He stated that the actual 3 foot 8 inches was built in 1987. There were some improvements made in 1987 but Dr. Batniji does not believe it was extended but that it was the same. Chairperson Kranzley asked Mr. Leckie to clarify the answer. The extra 3 foot 8 inches, are you saying, yes it was built in 1987 on the first floor? Mr. Leckie answered that he does not know if he can really say. It is the position of the architect, who has reviewed all the plans, that there 40 really was no extension, that it was already encroaching at that time. Chairperson Kranzley reiterated, the answer to the question of the additional 3 foot 8 inches is that it existed already in 1987. Is that your statement to which Mr. Leckie replied, yes, it was pre- existing in 1987. Commissioner Ridgeway asked Mr. Leckie if he knew what year that construction was built and who constructed the original house? Mr. Leckie stated that the modifications were constructed in 1987. The original building was acquired in 1974 and it is their (applicants) view that the encroachment existed at that time. He did not know who built the house. George Vehnam, architect, 1150 East Orangethorpe Avenue, Los Angeles - stated that the building was built around 1920. The whole subject boils to page number 3 under the title, Background in the staff report. The third paragraph states that at the meeting of May 23, 1996, the Modifications Committee approved a request to allow the retention of as -built structural supports of a roof deck which encroach approximately 4 inches into the required 3 foot side yard setback. The deck which is mentioned here is the third subject and gives everybody who reads this paragraph the impression Dr. Batniji built the roof deck without a permit which is not true. I did submit an application for a • permit for a roof deck in December of 1995. And under the discretion of the planner and the plan checker in the building department, they 41 INDEX . • City of Newport Beach Planning Commission Minutes November 20, 1997 allowed the encroachment of 4 posts outside the 3 foot side yard setback. The permit was issued based on that approval. These four, small posts were designed to go into the side yard because the old building could not carry the roof. Continuing, in paragraph number 2, the report states that at the meeting of September 1, 1987, the Modifications committee approved Modification Permit No. 3321, but disapproved that portion which requested a 3 foot encroachment of a second floor balcony into the 5 foot front yard setback. The plans submitted with that application did not include a request for a ground floor encroachment for the existing first floor room expansion. So, when a modification was applied for in 1987 for a modifications to extend the balcony, the first floor extension of 3 foot 8 inches was there. All he added was the extension of his balcony. If you want to do something today about this application say Commission denied the balcony in 1987, tell the applicant to cut the balcony. But, the first floor was there when Dr. Batniji bought the house. Dr. Batniji says he did not do the first floor extension, but the City is saying that he did not apply for the extension of the first floor. On top of the first floor, the 3 foot 8 inches, there was a roof which could be used as a balcony. So, Dr. Batniji wanted to extend it beyond the 3 foot 8 inches. Commissioner Selich asked Mr. Vehnam about the 3 foot 8 inches extension. If it was already existing when Dr. Batniji bought the house, is there documentation to substantiate that it was there. Are there photographs? Mr. Vehnam stated he is relying on the documents submitted by the City. He said he was not there at the time and nobody was there to verify that. Commissioner Adams asked Mr. Vehnam, if he believed that in 1974 the first floor encroachment was there? Mr. Vehnam answered that was what Dr. Batniji told him, that he bought the house this way. But, there is nothing to substantiate that. Commission asked the speaker the following: 1. were major rehabilitations done to the building - no, other than adding this roof deck which was permitted before the modification. 2. was the rock on the building when Dr. Batniji bought it - no, the rock was put on in 1987 when Dr. Batniji applied for the extension of the balcony 3. were you the architect at that time - no 4. who was the contractor - I do not know . 5. the roof deck was built under permit, were the four supporting columns part of the original permit - yes 42 INDEX City of Newport Beach . • Planning Commission Minutes November 20, 1997 I• 6. why did they have to go to a modification? - I have no idea, we had the permit issued with the four posts from day one, my assumption that the planner and plan checker from the City felt that this was very minor to go anywhere 7. the supports were built contrary to the permits that were issued - no 8. then why do they require a modification - they required a modification because the four posts were placed within the 3 foot side yard setback to carry the roof deck Commissioner Ridgeway then asked staff if there were any photos in this area from 1980 on? Ms. Temple clarified a statement in the staff report discussed by the speaker in the background section in the second paragraph. When it speaks of the existing first floor room expansion staff is speaking of what is now presently existing. It was not intended to imply that it existed at that time. In response to Commission inquiry, Mrs. Garcia showed that in a 1985 photo survey work was done by the Public Works Department in regards to the ocean front encroachment issues. The City does have two photographs of this property, one from either side, which showed what the building looked like in 1985. In staff's interpretation of these photos, it is clear that neither the ground floor extension nor the second floor deck existed at that time. Mrs. Genia Garcia, Associate Planner stated that there have been two modifications for this property. One modification was a 3 inch encroachment into a side yard which took place in 1995, which is not the issue this evening. The issue before the Commission is for a modification that was approved in 1987 which had a condition that denied the deck of the second floor to encroach into the 5 foot setback on the ocean side. Commissioner Adams requested clarification as to whether the statement, "the construction was performed without benefit of proper building permits or inspection;' is correct as it appears in the staff report. Ms. Garcia answered yes. She then offered an aerial view of the area which shows the subject property which at that time had no encroachment into the 5 foot setback on the ocean side. Another photograph taken by the code enforcement officer in 1982 was offered which showed the building face flush at the first and second floor. Another picture taken in 1997 shows the building extending into the front yard setback (comparing it to the another building next to it). Additionally, in 1985 the Public Works Department did an ocean front encroachment study in West Newport with photographs of all the • houses and dwelling units along that stretch of beach with addresses that had encroachments. In this particular case, in 1985, it did list Dr. 43 INDEX City of Newport Beach DoPlanning Commission Minutes November 20, 1997 Batniji as the owner and it does show the building with no encroachment. In 1992, the Planning Department did an amendment for the beach front encroachments. and we have copies of what the house looked like in 1992. So, somewhere between 1985 and 1992 these encroachments were added. The City has many building permits for this property (deck, bay window), but there are none which show that the first floor addition was approved. Chairperson Kranzley asked if the applicant (owner) would like to speak to which Dr. Batniji answered he would wait until he heard the others. Mr. Steven R. Bablot, 6802 West Ocean Front - submitted four pictures (8x12) showing east, west and front views. One of these was taken from the house on the west side of his home to show how far the encroachment is. Continuing, he stated that he: • paid a $1,100,000 in 1990 for a piece of property that he intended to rebuild • that the balcony Dr. Batniji built exceeded what is allowed • that he had to have 5 foot setback on the front and the back and 3 foot setbacks on the sides of the property • that the view paid for would be partially impaired by what has happened because of the encroachments by Dr. Batniji. The whole issue is, Dr. Batniji is trying to get a modification on something that was denied ten years ago. As other people will attest, no neighbors here will support this building. Dr. Batniji's whole building has encroachments everywhere and noting on that deck the City allowed a modification of 4 inches for those steel posts which were originally supposed to be placed inside the walls, now the way the poles are, the supporting beams have rock on the outside and now it encroaches 7'/2 inches in my side yard. (photos were presented) Mr. Wally Semeniuk, 6807 West Seashore Drive a 36 year resident spoke as a property owner at 6806 which is three homes to the right of Dr. Batniji's home. He thanked the Commission for taking time to review Modification Permit No. 4607 on Dr. K. Batniji's residence at 6800 West Ocean Front. The committee did a very fine and comprehensive review. Referencing a letter dated May 23, 1996 application Modification No. 4444 states that the request to permit the as -built construction of structural supports for a new roof deck with encroaches approximately 4 inches into the required 3 foot side yard setback. This is what we are talking about, the 4 inches. By the same token, the bearing beam which the previous speaker referenced, now encroaches 1 foot 5 inches instead of the 4 inches. Other encroachments which have not been addressed are the two chimneys • on the west side of the residence (photos were presented). He also mentioned a Mrs. Foley who left 15 minutes ago has lived in Newport 44 INDEX • City of Newport Beach Planning Commission Minutes November 20, 1997 Beach since 1962 owned the house before Mr. Bablot bought it and currently lives at 6700 Ocean Front. It was indicated to her knowledge the chimneys were not on the property. We requested the Modifications Committee to see if permits were pulled to build these chimneys that encroach. The front fireplace chimney was built and the second one they question, since they lived in their residences for twenty one years, so it is obvious what happened. Referencing pictures he noted the top of the second chimney top and asked if there was a permit for it as it is much different the ones in West Newport Beach. The flagstone rock which is siding the home was illegally put up without permits and encroaches about 6 inches in to the 3 inch setback. According to Dr. Batniji, the rock was installed for the purpose of low maintenance so he would not have to paint again, he put this up on his own volition. Presenting a photo he stated this is the 7 inches of the support beam that goes into the 3 foot setback. On March 3, 1987 Dr. Batniji had a change of contractors to add a bath, extend living room and balcony. Also, the building card was signed but not finalled. Dr. Batniji canceled this permit on March 31, 1987. However, he had workers still doing work on both the extended living room and balcony. I saw them. I am asking that Dr. Batniji adhere to the codes and ordinances of Newport Beach. At Commission inquiry, he stated he • could not remember when the rock siding was constructed. Mark Bablot, 212 Orange Street - submitted two pictures and referenced page 12, the proposed bay windows will not obstruct views from adjoining residential properties inasmuch as the windows will not encroach as far into the side yard back as the rear portion of the existing building. As you can see in the pictures, the bay window on the east side of the residence facing Orange Street, encroaches into the City's setbacks. The deck on the rear of the building has a ledge that also encroaches into the setbacks as well. It is also believed that the rock siding on the wall is also encroaching on the setback. Doug Cortez, 6606 West Ocean Front since 1985 - stated that he is not here to fight with the neighbors. He remembers the encroachment controversy of several years ago and there was a lot of effort to come into an encroachment plan that all the residents could live with. There were public hearings as well as a Coastal Commission hearing. At the time we agreed upon those rules on ocean front encroachments, that they would only work if everyone strictly abided by them. There has been incredible compliance with those rules, the system works. However, the subject property has had some dramatic and radical changes on and in that building over the last several years. Until I saw the sign about this hearing, I walked around the building and it was obvious that there are many encroachments to the naked eye on the beach front as well as on the sides. This upsets me because the rest of • us who live down there, have abided by the rules. Now that this has 45 INDEX • City of Newport Beach Planning Commission Minutes November 20, 1997 happened, it will spoil it for everyone else. We wanted to keep things according to the rules. He concluded asking that the Commission not to grant the appeal and allow these modifications for the good of all who live in that area of West Newport. It is very distressing to see what is going on at this particular location. The beach front encroachment of 3 and '/1 feet was not there a few years ago. At Commission inquiry, he reiterated that the subject property had no encroachment at 1985, that it was constructed subsequent to 1985. He does not agree with the previous testimony of the architect who stated that it was that way for many years. Dr. Kama] Batniji, 6800 West Ocean Front - asked that the Commission put themselves in his position, as he does when he sees his patients. He tries to do his best to get a healthy outcome. The house was purchased with his wife because they could not take Los Angeles and be healthy enough to take care of his kids and patients without having access to the beach in 1974 -75. Then there was need to fight the salt air impact on the building, which was built maybe in 1918 or 1916. Every year we had to paint and the windows got rotten so we decided to have it more secure and more pleasant for us to spend our time. So, I employed a gentleman, a contractor and a designer who was across • from Pasadena College. I did not know the difference between a designer or architect. They came to the City and they applied and two week later while I was in surgery, I was called by the Fire Marshall of Newport Beach. He said my house was a fire hazard, and I said they are working there. He said no one was working there it is just a pile a rubble. So I went that same day and found out that the man ran away with the $15,000 and the family dog. I reported it to the police, this was in 1987. 1 employed a second contractor, this time I checked his records through the consumer affairs and he was spotless. He was a licensed contractor. I depended on the City and the licensed contractor to do the work. Exactly as much as when to my surprise and astonishment, I see the letter from the City two years ago or less saying that I am doing something in violation. I asked friend of mine who is a Superior Court Judge in Los Angeles if he know any lawyer in Orange County. Fortunately, I don't have to deal that much with lawyers but in this City I felt I had to so Mr. Leckie came to defend us and upon his advice we applied for a variance knowing that this is a formality. The chimneys were built there in 1916. The flagstone was put there because it gives the insulation plus protection from the salt air and since 1987 we do not have to paint or do anything to the house. It looks beautiful. Because we had to go to apply for the bay windows, we had to go to the Coastal Commission for their approval and to have them approved by the City as well as the flagstone. No objection was raised during that hearing by Mr. Seminiuk to the flagstone. • Chairperson Kranzley told the applicant to focus on this application 46 `IIr1171 . City of Newport Beach Planning Commission Minutes November 20, 1997 which is the first floor room expansion and the second floor balcony. Dr. Batniji stated he did not extend the first floor. He did not want to apply for a variance at this time, but his lawyer advised him. The first room was there. The balcony was changed in 1992 because the railing was rotten and there was a concern for safety. The contractor had to go to the City to get approval for the change in the railing of the balcony. Chairperson Kranzley, for purposes of clarification, asked that you are saying that the first floor room expansion existed prior to your purchase of the house? And, the second floor balcony that encroaches 5 feet into the required 5 setback was also existing? Dr. Batniji answered that the first floor room expansion existed prior to his purchase of the house and that he did not build it. He built the second floor balcony that encroaches five feet into the setback in 1987. The house has special, custom made windows. He stated that he bought the house in 1974 -75. Commissioner Fuller for purposes of clarification reiterated to Dr. Batniji: • bought the house in 1974 -5 - yes • first floor extension of 3 foot 8 inches was in place at that time as well as the five foot balcony - Dr. Batniji answered yes that the extension was there at that time, but the five foot balcony was not as big • has no photographs taken in 1974 -75 that would show the addition Dr. Batniji stated that when he bought the house, there was a front yard to the house that he thought all that was their property. It turned out, that it was not as everyone on the beach is encroaching. The contractor he hired in 1987 was Pan East Construction from Los Angeles and he has tried to find them, but has been unable to. Wayne Penn, 6903 Seashore Drive since 1974 spoke in opposition to an approval of the Modification in favor of the City zoning laws, ordinances and permitting processes. He stated that this property has a history of blatant disregard for building permits, city codes and zoning laws and a contempt for the system itself. As he owns his home and is ultimately responsible for what any contractor would do, the responsibility falls on Dr. Batnaiji. He asked the Commission to uphold the laws and not to grant a forgiveness for something that would not have been originally granted permission which would defeat the purpose of the process. Despite the eloquent speakers, this is just an issue of what is the permitting process about and why it is important. As a long time resident, I know that house from early childhood days. I • think research would find that the applicant's house was built in the 40's 47 INDEX • City of Newport Beach Planning Commission Minutes November 20, 1997 or 50's. It has changed dramatically since the 70's. However, I do think the Bablots and Semeniuks are correct and there are significant concerns with the encroachments. Mr. Masir, 3915 Seashore Drive spoke in favor of the applicant, stating that the footprint has not changed. Public comment was closed. Motion was made by Commissioner Adams to sustain the decision of the Modifications Committee to deny Modification Permit No. 4606 pursuant to the findings in Exhibit A. Ayes: Adams, Gifford, Kranzley, Selich, Ridgeway, Fuller Noes: none Abstain: Ashley Findinas: 1. The retention of the proposed non - permitted construction is not consistentwith the Development Policies of the Land Use Element • of the General Plan, specifically Development Policy D, which states that the "siting of new buildings and structures shall be controlled and regulated to insure, to the extent practical, the preservation of public views" which would include the public views from the street end of Orange Street. 2. The approval of Modification Permit No. 4606 to retain the as -built construction is, under the circumstances of the case, detrimental to persons, property and improvements in the neighborhood, and that the applicant's request is not consistent with the legislative intent of Title 20 of the Newport Beach Municipal Code for the following reasons: • The "as- built" deck was previously denied by the Modification Committee on September 1, 1987 under Modification No. 3321. • The first floor addition was built without the benefit of building permits. • The Zoning Code allows for the construction of a second floor cantilevered deck to encroach 3 feet into the required 5 foot front yard setback which can adequately serve the needs of the applicant. • The proposal is an unreasonable use of land since the ground floor encroachment adversely impacts the views enjoyed by the general public from the street end of Orange Street. • • There are no properties within the same block which 48 INDEX • City of Newport Beach Planning Commission Minutes November 20, 1997 encroach to the extent of the subject project. 3. That the approval of the proposed could set a precedent for the approval of other similar requests which could be detrimental to the neighborhood. 4. That there is no justification for allowing the proposed encroachment, since adequate space exists within the buildable area of the site for all new construction. 5. That structures on sites adjoining the subject property generally maintain the required yard setback. 6. That the "as- built" encroachments affect the flow of air and light to adjoining residential properties because: • The addition on the first floor and the deck are further out on the beach side than the adjoining neighbors' homes and block air and light to the interior adjacent neighbor. 7. That the "as- built" encroachments obstruct views from adjoining . residential properties because: • At least 3 feet 8 inches of public and private views have been cut off by the first floor enclosure and the balcony obstructs views an additional 5 feet on the second floor. 8. That the surrounding property owners have objections to the proposed construction which obstruct their enjoyment of ocean views which would be provided if the construction at 6800 West Ocean Front maintained the required 5 foot front yard setback. 9. That the adjoining property owner is opposed to the retention of the as -built construction which obstructs enjoyment of ocean views which would be provided if the construction at 6800 West Ocean Front maintained the required 5 foot front yard setback. 10. That the retention of the as -built construction which were constructed without benefit of proper building permits or inspections and which have illegally obstructed public and private views since 1987 adversely impact the enjoyment of ocean and beach views by the public and neighboring private property. 11. That no new evidence has been presented by the applicant which justifies the retention of the non - conforming construction. 49 INDEX • City of Newport Beach Planning Commission Minutes November 20, 1997 SUBJECT: DKN Hospitality Group ( Malchon Kao, contact) 6208 West Coast Highway • Variance No. 1216 Request to allow the construction of architectural features (mansard roof structures) proposed in conjunction with the remodel of a legal non - conforming motel which exceeds the permitted height limit of 26 feet. The proposed architectural features will also exceed the basic height limit of 26 feet. Also included in the application is a request to allow the addition of a 42 inch high glass guardrail for a roof deck. Ms. Temple noted that this is an existing motel in the Newport Shores area that has been there for many years. It was built in compliance with the existing zoning requirements at that time. Subsequent to its construction, the City has lowered height limits of commercial districts city -wide, so the building now exists as a legal, non - conforming structure. The application is required because the proposed roof elements to be added are above the height limit. It is staff's opinion that these roof elements improve the overall aesthetics of the structure by providing some additional architectural detail. The existing roof sign • will be removed. Mr. Malchon Kao, 1912 Via Del Rey, South Pasadena, representing the applicant, stated that this building is 4 story which will be renovated both inside and outside. The owner has applied for this motel to be a Holiday Express with high end business. Holiday Inn is very famous and after the renovation the project will hopefully bring the City great revenue and other employee opportunities. In response to color, the roof will be mission, light weight tile. Holiday Inn tries to identify themselves with colors and will probably have the roof be blue. He stated he will report and work with the City staff to accommodate the requirements of the Holiday Inn. The Holiday Inn has certain requirements regarding the sign logos. Building signs will be on the building wall and there will be one in front. We will work with the City and submit a sign plan with the recognized approved Holiday Inn signs. The roof sign will not be replaced. Staff explained that the existing building with the existing roof sign exceeds the height limits. Commissioner Fuller, referring to the exhibit, stated that what is there is no roof sign. The owners re- affirmed that the sign will not be replaced. Public Comment was closed. . Commissioner Gifford asked staff about the sign issue. There will be some 50 INDEX Item No. 7 Variance No. 1216 Approved • City of Newport Beach Planning Commission Minutes November 20, 1997 privileges retained with regard to non - conformance when the sign permit is heard in the future. The worst possible outcome would be that there could now be a sign on the highest point of the building. Because the building is non - conforming already as to its height, does that mean a wall sign at a point higher than the building would now permitted to be. Ms. Temple stated that if Commission first imposes that the requirement that the sign be removed, there would be no exception permit required for any other permitted sign on site. The building has a right to a certain number of wall signs. In this particular location, staff is of the opinion that probably a wall sign on either side will be of greater affect. In reviewing the provisions of the sign code in regards to wall signs, it does not establish a height limit. Staff's opinion is that an otherwise conforming wall sign could be installed on the non - conforming building which would include the tower. Motion was made by Commissioner Adams to approve Variance No. 1216 according to the findings and conditions in Exhibit A with an added condition that the existing roof sign be removed. Findinas: 1. That the Land Use Element of the General Plan and the Local Coastal Program Land Use Plan designate the site for "Retail and Service Commercial" uses and the existing motel use 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). 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 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 some District: • There are no other building in this area which maintain this height, which makes this property unique. • The existing building is 40 feet high at the staircase portion and 31 feet at the rest of the building, constructed at a time when the height limit allowed such structures and is • therefore non - conforming with regard to height. 51 INDEX • City of Newport Beach Planning Commission Minutes November 20, 1997 5. That the approval of Variance No. 1216 is necessary for the preservation and enjoyment of substantial property rights of the applicant for the following reason: • The architectural features will enhance the facade of the existing box shape of the building making it more appealing to patrons, which is vital to the success of the business. • The proposed 42 inch high railing at the roof deck is provided for life safety reasons. 6. That the granting of a variance to allow the mansard roof elements and the roof deck railing to exceed the permitted height limit, 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 building will maintain increased setbacks at the rear and the westerly side of a majority of the property and the • parking is maintained at current levels. • When viewed from three sides of the property, the building appears no taller than currently exists and the proposed architectural mansard elements are only visible from Coast Highway. • The proposed 4 feet high mansard decorated roof will be added to the 31 foot high street side roof elevation only. • The facade as viewed from across West Coast Highway will be more visually appealing • The proposed 42 inch high railing at the roof deck is comprised of decorated tempered glass and will be setback a minimum of 5 feet from the edge of the building to minimize visibility. • The proposed construction will not adversely impact the preservation or enjoyment of substantial property rights of the neighboring properties. Conditions: That development shall be in substantial conformance with the approved site plan, floor plan and elevations, except as noted below. 2. That the height of the mansard elements shall be limited to a maximum height of 35 feet and the roof deck guardrail shall not • exceed 34 feet 6 inches. 52 INDEX • City of Newport Beach Planning Commission Minutes November 20, 1997 3. That the roof deck guardrails shall be setback a minimum of 5 feet from the edge of the building and shall be comprised of clear glass or similar construction and shall not be frosted or otherwise opaque. 4. That the construction shall be in accordance with the Uniform Building Code, including but not limited to, State disabled access requirements access and occupancy and fire exiting purposes. 5. That all mechanical equipment and trash areas shall be screened from view of public streets and adjoining properties. 6. That a drainage plan shall be prepared for the on -site drainage of the roof deck by the applicant and approved by the Building Department showing how the on -site roof deck drainage is to be handled. 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 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. 9. That the existing roof sign be removed. ADDITIONAL BUSINESS: a.) City Council Follow -up -.Oral report by the Assistant City Manager regarding City Council actions related to planning - Mrs. Wood reported that at the Council meeting of November 10th the Council introduced the Administrative Citation Ordinance; Council authorized staff to retain a consultant to do the parking management plan for the Balboa Peninsula; and heard the appeal of the TLA case that was continued to November 24th with some additional requests for information; Council approved all the actions for the Bonita Canyon General Plan Amendmentzone change and the Resolutions to start the annexation process; and on December 15th at 7:00 p.m. there will be a joint meeting of the Council and all the Commissions and Committees. The chairperson of each is asked to make a five minute report. The following items have been appealed and are scheduled to be 53 Additional Business INDEX • City of Newport Beach Planning Commission Minutes November 20, 1997 heard within the next few months: Windows on the Bay, Cannery and Franklin Realty. 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 - Modification Permits were issued for 320 West Coast Highway, 315 Ruby Avenue, 1421 Bayside Drive, 8 Thunderbird Drive and 6 Bighorn Drive. 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 - Getting information at the last minute. Discussion ensued regarding information presented on the evening of the meetings; and ways to address this issue with the applicants through a notice on the original application paperwork. e.) Matters which a Planning Commissioner may wish to place on a • future agenda for action and staff report - Noticing Procedures I.) Requests for excused absences - Commissioner Adams asked to be excused January 8, 1998. ADJOURNMENT: 11:45 p.m. THOMAS ASHLEY, SECRETARY CITY OF NEWPORT BEACH PLANNING COMMISSION 54 INDEX