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HomeMy WebLinkAbout10/22/2009CITY OF NEWPORT BEACH Planning Commission Minutes October 22, 2009 Regular Meeting - 6:30 p.m. ROLL CALL Commissioners Eaton, Unsworth, Hawkins, Peotter, McDaniel, Toerge, and Hillgren— Commissioner Toerge arrived late, and all other Commissioners were present. STAFF PRESENT: Sharon Z. Wood, Assistant City Manager David Lepo, Planning Director Patrick Alford, Planning Manager Michael Torres, Deputy City Attorney Tony Brine, City Traffic Engineer Ginger Varin, Administrative Assistant PUBLIC COMMENTS: PUBLIC COMMENTS None POSTING OF THE AGENDA: POSTING OF THE AGENDA The Planning Commission Agenda was posted on October 16, 2009. HEARING ITEMS SUBJECT: MINUTES of the regular meeting of October 8, 2009. ITEM NO. 1 Chairman Hawkins bifurcated the minutes. Approved Motion was made by Commissioner Peotter and seconded by Commissioner McDaniel to approve the minutes as corrected relating to the section without North Newport Center Planned Community Amendment. Ayes: Eaton, Unsworth, Peotter, Hawkins, McDaniel, Toerge and Hillgren Noes: None Abstain: None SUBJECT: MINUTES of the regular meeting of October 8, 2009. Approved Motion was made by Commissioner McDaniel and seconded by Commissioner Peotter to approve the minutes as corrected by Chairman Hawkins, relating to the North Newport Center Planned Community Amendment. Ayes: Eaton, Unsworth, Peotter, McDaniel, Toerge and Hillgren Noes: None Abstain: Hawkins NEWPORT BEACH PLANNING COMMISSION MINUTES 10/22/2009 North Newport Center Planned Community Amendment (PA2009 ITEM NO. 2 111) PA2009 -111 100, 150, 180, 190, 450 Newport Center Drive and 5100 Plaza Colony Recommender for Approval A planned community text amendment to incorporate portions of Block 100, Block 400, Block 800, and Newport Village into the North Newport Center Planned Community and a code amendment to change the zoning classification of these properties from APF, PC -28, PC -23, and PC 27 to PC -56 on Districting Maps Nos. 48, 49, and 50.1ocated at 2865 E. Coast Highway. Chairman Hawkins noted he is an office tenant at 110 Newport Center Drive and will recuse himself from this matter. Vice Chairman McDaniel took over the meeting noting this item was continued from the last meeting due to requests of several people in the area who had wanted more time to review. Mr. Lepo suggested hearing this application as is. There may be other issues that need to be looked into if the Commission decides to include those other properties into the North Newport Center relative to uses and CEQA issues. Commissioner Peotter asked if it would be a problem if the Commission wanted to adjust the areas we are dealing with tonight to include five additional properties. Mr. Torres answered, yes it would be problematic. Our Municipal Code requires noticing prior to the Planning Commission hearing on an item and because these other properties would be new tonight, no notice was given prior to this hearing to the properties within the 300 feet radius. These additional addresses were not contemplated in the original application, therefore, the 300 - foot radius from those new properties would not have been noticed. Mr. Alford added that the radius maps were checked and if those new properties were included it would extend that notification radius out and cover some properties that did not receive a notice. Dan Miller, representing the Irvine Company, noted they do not oppose having these properties included in the Planned Community, but since this application has been continued, they do not agree to do it tonight and asks that this item be heard. If this item comes back in the future, as applied for by the other property owners, they would not be opposed to including them in the PC text. Public comment was opened. Commissioner Toerge asked if the other five property owners want to initiate an application for inclusion into North Newport Center, when could that be done? Mr. Leoo answered it would be a minimum of four months due to research Page 2 of 10 NEWPORT BEACH PLANNING COMMISSION MINUTES 10/22/2009 requirements. Carol McDermott of Government Solutions noted: • Five other property owners asked how they could be included in this application. • She questioned the addresses noted in the submitted application and used for legal noticing. • These property owners agree to the language in the zoning and would be requesting no changes in this language and want to be included in the regulations. • There are confusing references as to what is and is not included. • Either the map is wrong or the text is wrong. • She then read into the record a letter from the owner of property at 100 Newport Center Drive in sub -area Block 100 and 2161 San Joaquin Hills Road in sub area of Block 100, asking to be included in this application. (letter included in staff report) Appearing in support of being included in this application: Alex Philips, one of the owners of 180 Newport Center Drive, address is listed and thought they were included. They don't intend to make changes and sent a letter asking to be included in this amendment. Commissioner Hillgren asked what the perceived benefits would be to be included in this action. What about existing agreements; impacts? Mr. Philips answered they share parking, common area expenses, landscaping and signage. There could be complexities with a change that leaves them out. Everyone needs to be in line. There are CC and R's addressing parking and common area expenses, landscaping, etc. He is not sure about what impacts there would be. Commissioner Toerge asked if there would be any hardships if this occurs in four months. Mr. Philips answered no. Michael Meyer, one of the owners of 180 Newport Center Drive, does not want a four -month delay due to technical issues that arise. We really don't understand the advantage or disadvantage of being included other than the simplicity of being part of one Block. We want to be under the rules the City operates and understands. There was notice given of his property. Commissioner Hillgren asked about the current use of his building. Are you considering a change of use that is different than the current zoning allows? To be included in this agreement would do what to your goal? Would you still have the ability to convert to medical office if not for this application? Mr. Meyer answered it is office use now. We have some medical office use and are considering getting approval for more. When you talk about medical office. the oarkina requirements are hicher and so traffic issues need to be Page 3 of 10 NEWPORT BEACH PLANNING COMMISSION MINUTES 10/22/2009 considered. Yes, that right to convert uses exists now. Glenn Peters, Deputy Director of Orange County Museum of Art, speaking on behalf of the Board, noted they support the goals and objectives of this Planned Community and would appreciate having zoning in place that is consistent with the rest of the neighborhood. They need the assurance of the zoning through this amendment to satisfy their responsibility to their Trustees. The property was not included in the original application and they were not aware of this until the public notice and now request that they be included in the Amendment. The notice was adequately broad and would encompass notification of their property. Vice Chairman McDaniel asked how this would change what they already have. Mr. Peters answered the issue drives to the Trustees fiduciary responsibility to the public's interest in the museum. If the zoning changes the underlying value to that property, it is our obligation to pursue maximizing that value. The design regulations and guidelines included in the Planned Community Amendment provide a layer of flexibility and architectural detail that ultimately would inure to our property by being included in the amendment and that ultimately creates value. Therese Hewett, President of Burnham USA, Equities Inc., as owner of two properties on San Joaquin Hills Road and area Block 500 stated the notice does not include Block 500 address and therefore they did not know they were included. However, in talking to other property owners, now would like to be included. They would also like to include their property in Blocks 200 and 300 as the mixed use would increase their flexibility of their property uses. She asked that they be included. At Commission inquiry, she added that right now they are not in the PC and would be able to do mixed use, which would create more flexibility for their properties. She does not understand the transfer of entitlements. Coralee Newman of Government Solutions noted they are perplexed by the public hearing notices done on this project and discussed the addressing and their concerns. Chris Garrett with Latham, Watkins an outside land use counsel for the Irvine Company, noted: ➢ Notice issue — notice describes the Blocks that were involved and maps were included describing the property that was covered. It is required by the Government Code to have a general description of the location. This notice contains that general description. Second requirement is to mail notices to people within a 300 -foot radius who would be affected. Some of the properties proposed to be included were not mailed notices. Those people would certainly find a violation of the noticing requirement because they wouldn't have received a notice that their property might be impacted. ➢ One of the speakers tonight discussed adding Blocks 200 and 300 to this oroiect and you could not do that as there are manv orooerty Page 4 of 10 NEWPORT BEACH PLANNING COMMISSION MINUTES 10/22/2009 owners who would need to be notified. ➢ The content of the notice is accurate and we are required to indemnify the City for that as it satisfies the provision of the law. We would not be in position to indemnify the City if you were to add more properties if that violation occurs. Our indemnity that is listed in the draft resolution covers both CEQA claims and claims based on zoning and noticing. A number of agreements exist with these property owners and they have been dealt with in the past. The zoning actions do not affect those agreements at all and they will remain in effect. ➢ We are supportive of any other property owner who wants to join the PC text. The City has made it clear we can not act on behalf of other property owners. The City required an independent evaluation of our application, which is to preserve the existing zoning and use limits. The City hired an outside CEQA consultant and we paid for their research and report. Commissioner Unsworth noted the CEQA exemption would be different. Under what circumstance would this CEQA exemption not be available? Mr. Garrett noted the CEQA determination used for this was that there were no new entitlements to build, expand or change uses as we are keeping the existing limits. If one of the property owners asked to be included so they would be able to have additional square footage or build to a higher level or an addition to office uses, which I am limited to now under the zoning, they will be able to do medical office as well, that's a change in use and requires traffic studies and CEQA evaluation. Commissioner Toerge asked about the indemnity concerns Mr. Garrett noted any additional property would trigger the notice requirements for people within 300 feet. We would not want to indemnify the City for that because we agree with staff about that necessary notification. Mr. Torres noted that the City received a letter from The Irvine Company agreeing to indemnify the City from any challenges that may result from the City's approval today of this application. It has been confirmed that it also extends to any defects and notice that may result in challenge. Mr. Miller stated they do not want to include any other properties tonight and want to move forward with the application. At Commission inquiry, Mr. Torres reiterated that the noticing was adequate. Mr. Alford confirmed that there would be additional property owners that would need to be notified based on the radius map. Public comment was closed. Mr. Lepo noted the issues of analysis, timing and transfer of development rights that only occurs if it is traffic neutral, and that conversion to medical office represents an intensification of parkina demand. This applicant should Page 5 of 10 NEWPORT BEACH PLANNING COMMISSION MINUTES 10/22/2009 not be made responsible for this. Mr. Alford noted the following in the staff report as discussed at the previous meeting: ➢ Not a change from a discretionary decision to a ministerial decision. Previous transfers were ministerial. ➢ Definition of service has been clarified to serve as access corridors, service tunnels and can not be used for storage or office space. Height limits and architectural features allowed to extend 20 feet over building height discretion by Planning Director will be noticed to the Planning Commission and City Council. The Airport Land Use Commission has reviewed this application and found it consistent with the John Wayne Airport Environs Land Use Plan. They asked for language regarding architectural features and roof top equipment to be AELUP compliant. • Parking exceptions now include a 5 percent cap and parking management and engineering offices would be counted towards this requirement. • Sign inventory has been updated and a copy has been distributed for review. Commissioner Eaton noted the concern of view of rooftop screen angle; and, a change in use provisions that changes visitor accommodation from minor use to a use permit. Mr. Alford answered the view would be the portion of the street closest to the building. The use provisions language was part of the ongoing corrections and is minor in nature and tightens up the existing regulations. Commissioner Eaton then asked about the transfer of development rights and traffic neutrality. Can transfers be allowed between different properties if this expanded or transferred between the Irvine Company and other owners? What intersections are looked at? How is this done? Mr. Brine noted it is only the p.m. peak hours in assessing traffic neutrality. We only look at intersections when a TPO study is being done or transfer of development rights. You are looking at terms of neutrality from that transfer and at the land uses and the transfer of development rights. If a TPO study is required it would be for a new project that is going to generate new trips, or if the transfer is happening within an area within two distinct Blocks that might change the distribution of traffic into area intersections. Ms. Sharon Wood, Assistant City Manager added that for any development that is covered under the North Newport Center Development Agreement we would not be doing a Traffic Phasing Ordinance study because all the requirements of the TPO were met as part of the public benefits that are included in that Agreement. For a transfer, if it is a conversion of uses then the p.m. peak hour analysis would be all that was done, but if you look at Page 28 of the PC text, Item 3 under transfer of development rights, it says, "depending on the location of the sending and receiving sites, the Traffic Engineer may determine that a more detailed traffic analvsis is required, etc. and that analvsis Page 6 of 10 NEWPORT BEACH PLANNING COMMISSION MINUTES 10/22/2009 is to be done pursuant to the Traffic Phasing Ordinance procedures and standards." Commissioner Eaton asked if this amendment would expand the Newport North PC to include areas that were not within the original Development Agreement. Are they treated differently? Ms. Wood answered they would be treated differently only with regard to the Traffic Phasing Ordinance but not with regard to the transfer of development rights. Even though this action would be expanding the details on the procedure for a transfer of development rights to these new properties, the ability to transfer development rights anywhere in Newport Center already exists in the General Plan. It was a General Plan Policy that had always been used for transfer of development rights in Newport Center prior to the time this Planned Community was adopted. The procedure that is spelled out in this PC is the procedure that has been used historically. This is the first time we got it down on paper. Commissioner Hillgren asked about the evaluation of the screening of the rooftop equipment. Depending on where you are looking at the top of the building we need to be sure that the text changes reflect the intent of the screening. What are the conditions of the John Wayne Airport Environs Land Use Plan? How does it work? What is the maximum building height in this area? Mr. Alford noted this application is a code amendment and has to be reviewed by the Airport Land Use Commission. They saw the language dealing with rooftop appurtenances and architectural features and they want to clarify that these too would also have to be consistent with the Airport Environs Land Use Plan. That was always implied, but they wanted this as a statement in the section deal with these features in this Code Amendment. The Airport Environs Land Use Plan extends into this area and is subject to the FAA regulations. We are making sure it is included in this process and will be reviewed for consistency. The building heights vary by blocks. Mr. Miller noted that in the hi -rise buildings they could be as tall as 295 feet with the 20 feet that could be added for the rooftop appurtenances. Blocks 500 and 600, under the old PC, are 375 feet and through this discussion we have agreed to lower the building heights which will be 295 feet. Anything that is over 200 feet, we have to go through the FAA process to get, which is the standard. Mr. Alford noted the appurtenances are projections that can be added to the building height, which would be the parapet. Mr. Miller noted all these appurtenances have to be included in that 295 plus 20 feet. Commissioner Toerge noted his concern of the screening language. He suggested that it read: the top of all roof - mounted equipment and communications devices except the window washing eouipment should Page 7 of 10 NEWPORT BEACH PLANNING COMMISSION MINUTES 10/22/2009 be below the parapet or equipment screens. Mr. Miller noted that language would be acceptable, the only exception would be the window washing equipment as that has to go over the parapet to go down the sides. Commissioner Eaton noted the Design Guidelines are superseded by the regulations. Commissioner Toerge noted that language should be inserted in that area in Rooftop Appurtenances on Page 16 as well. Mr. Lepo verified the language. Commissioner Hillgren noted his concern of the ministerial aspects. The language was specific and gave the Council some ability to engage in conversation when those transactions were contemplated. I believe that change to ministerial should be clearly noticed to the Council as we are potentially changing the deal as it was constructed. Ms. Wood noted the Development Agreement itself does not speak to FAR's or transfers of development rights or procedures other than to refer to the Planned Community text which is incorporated as an exhibit to the Development Agreement. It was the intention that this be ministerial from the beginning. She views this as correcting and making clear what was intended two years ago. Whether the City Council viewed it as she did then or the Commission does now, the Council will find that from the record of your proceedings. Commissioner Unsworth questioned the challenge aspect of a ministerial action and if the City is covered under the indemnity offered as to a legal action? How would it be handled? Mr. Torres answered yes. As noted any challenges would be tended to the Irvine Company as they are charged to indemnification and protection of the City. Any new approval will have an indemnification clause. Mr. Miller noted this is consistent and standard procedure. He noted that he agrees to all the changes as suggested tonight. Motion was made by Commissioner Unsworth and seconded by Commissioner Peotter to adopt a resolution recommending approval of Planned Community Development Plan Amendment No. PD 2009 -003 to Districting Map No. 48, No. 49 and No. 50 (PA2009 -111) with an additional condition to be added related to screening of roof -top equipment. Commissioner Peotter noted modification to language of roof -top appurtenances so that all equipment will be below the top of screen or parapet except for the window washing equipment. Commissioner Eaton noted he could not support the motion due to his Page 8 of 10 NEWPORT BEACH PLANNING COMMISSION MINUTES 10/22/2009 concerns of ministerial action and it is not good policy to place a decision in the hands of the City Council and they have no choice but to approve it if it meets a certain criteria. The CEQA finding is a finding of certainty that there could be no environmental effect. When Council is mandated and compelled based only on p.m. peak hour traffic without knowing if there might be a significant affect on a.m. peak hour traffic, let alone all the other categories of possible significant effects, I cant' say we know that as a certainty. Commissioner Unsworth noted it is a common sense CEQA exemption, not to a certainty. I think common sense would indicate here that we are not making enough change to trigger a CEQA challenge. Ayes: Unsworth, Peotter, McDaniel and Toerge Noes: Eaton and Hillgren Absent: Hawkins SUBJECT: Ong Parking Waiver (PA2009 -059) ITEM NO. 3 333 Old Newport Blvd. PA2009 -096 A use permit application to waive the additional off - street parking required for Continued to the conversion of 3,061 square -feet of retail to medical office in an existing 11/05/2009 multi- tenant building. Staff requests this item be continued to November 5, 2009. Motion was made by Commissioner Peotter and seconded by Commissioner McDaniel to continue this item to November 5, 2009. Ayes: Eaton, Unsworth, Peotter, Hawkins, McDaniel, Toerge and Hillgren Noes: None Excused:1 None SUBJECT: Megonigal Residence (PA2007 -133) ITEM NO.4 2333 Pacific Drive PA2007 -133 A use permit application to waive the additional off - street parking required for Continued to the conversion of 3,061 square -feet of retail to medical office in an existing 11/19/2009 multi- tenant building. In reviewing the comments received on the draft EIR and preparing responses, staff reviewed the images and view simulations that were included in the draft EI and noted there may be some scaling error that could affect the size of the image of the dwelling shown in the view shed. These simulations need to be verified and staff needs time for this review. Staff requests this item be continued to November 19, 2009. Chairperson Hawkins noted that for reasons of having the entire new vie simulations available for public review this matter should be continued and no open the public hearing until everybody has the materials and then everyone will be on the same page. Page 9 of 10 NEWPORT BEACH PLANNING COMMISSION MINUTES 10/22/2009 Motion was made by Commissioner McDaniel and seconded by Commissioner Hillgren to continue this item to November 19, 2009. At Commission inquiry, Mr. Lepo noted that if the revised simulation shows such a dramatic change, staff will let you know. Mr. Torres added if the consultant recommends a re- circulation of the draft EIR, staff will bring back that recommended action for Planning Commission determination. Nothing has been decided. Chairman Hawkins asked if staff could make that determination and therefore start the process. Mr. Torres answered if it came back and it was a clear decision by the EIR consultant that it needed to be re- circulated and if staff agrees, it could actually occur. Commissioner Peotter asked what images are in question. Mr. Lepo answered it is the view simulation contained in the EIR that is in question. Following a discussion on the process to be used, it was recommended that staff give an update at the November 5`h meeting during New Business. Ayes: Eaton, Unsworth, Hawkins, McDaniel, Toerge and Hillgren Noes: Peotter Excused: None Motion was made to forgo the rest of the agenda. All NEW BUSINESS: City Council Follow -up — Planning Commission reports. — Announcements on matters that Commission members would like placed on a future agenda for discussion, action, or report — Requests for excused absences —none. ADJOURNMENT: 8:30 p.m. CHARLES UNSWORTH, SECRETARY CITY OF NEWPORT BEACH PLANNING COMMISSION Page 10 of 10