HomeMy WebLinkAbout17 - Planning Commission Agenda - 07-21-2005CITY OF NEWPORT BEACH
Agenda Item No. 17 00
July 26, 25
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Planning Department
Patricia Temple, Planning Director
ptemple @city.newport- beach.ca.us
SUBJECT: Planning Commission Agenda for July 21, 2005
Report of the actions of the Planning Commission Regular Meeting:
Item 1
Item 2:
Item 3:
The minutes of July 7, 2005 were approved as corrected. (4 Ayes, 1 Abstain, 2
Excused)
Barry Saywitz Residence (PA2005 -085)
5005 River Avenue
This item is an appeal of the Zoning Administrator's approval of Condominium
Conversion No. 2005 -004, Parcel Map 2005 -021 and Modification Permit No. 2005-
042. The applications would authorize the conversion of an existing duplex into a
two -unit condominium complex allowing individual sale of each unit. Also included
in the application is a request for a modification to the Zoning Code to allow the
installation of a partition wall to establish two single -car garage parking spaces with
substandard width.
This hearing was the third scheduled hearing of this appeal. The Commission
was informed that there was a possibility that the appellant might withdraw the
appeal, based upon a voice mail message left for staff earlier in the day.
However, the Planning Commission was prepared to take action on the item,
even though the appellant was not present. This item was denied without
prejudice and is subject to appeal by the public or City Council. (5 Ayes, 2 Excused)
Hoag Memorial Hospital Presbyterian
One Hoag Drive
This item is a request to approve a traffic study prepared pursuant to the City's
Traffic Phasing Ordinance (TPO) for the development of 130,000 square feet of
outpatient medical office space on the Hoag Lower Campus.
Discussion on this item centered on the intersections which are required to be
assessed for the purposes of the Traffic Phasing Ordinance, which are limited to
certain intersection within the City; and the Environmental Document used to
support the approval. This item was approved and is subject to appeal by the
public or City Council. (5 Ayes, 2 Excused)
July 25, 2005
City of Newport Beach City Council
3300 Newport Boulevard
Newport Beach, CA 92663
Re: Planning Director's Use Permit 2005 -005
Ladies and Gentlemen:
"RECE D AFTER AGENDA
PRINTED," - to "
�t7
21562 nd Street
Newport Beach, CA 92663
Advance by email
On Thursday July 21 the City's Planning Commission upheld my appeal of the above -
referenced use permit. I am writing to request that City Council not use its authority to
appeal the Commission's decision when it meets tomorrow, as doing so will cause more
time and expense of Planning Department staff. In the event of further appeal, I will be
compelled to request that the Planning Department address certain factual errors and
omissions in its staff report to the Commission.
Certain of these errors and omissions were called to the City's attention in my July 21
letter to the Commission, attached for your reference. Addressing these errors and
omissions is not a matter of minor clarification, but involves key assumptions that
contributed to an analysis of the Zoning Code which led to certain findings, conditions,
and recommendations. Using the actual facts will necessarily lead to different findings,
conditions, and recommendations, to the detriment of the applicant's request.
Additionally, the applicant's testimony to the Commission contradicts his previous
representations with respect to intended use of the proposed 2 "d story office. Prior to the
Commission hearing, the applicant led the City to believe that the 2 "d story office would
be used only for the on -site restaurant and the neighboring Spaghetti Bender restaurant.
However in his testimony to the Commission, the applicant admitted to the City what lie
told me in our meeting several months ago: that lie intends to use the proposed 2nd floor
addition as an independent office use to conduct other business and investment activities.
This is not a trivial matter.
Based on the applicant's prior misrepresentation, the Planning Director's approval of the
use permit included a condition that the 2nd floor addition be used solely for the on -site
restaurant. Both Planning Department staff and the Commission spent significant time
on this issue. Even if, contrary to his testimony, the applicant agreed to use the office
Note this condition was not included in the Planning Director's approval of the use permit, though it was
implied. In response to my appeal, the staff report to Commissioners noted that failure to include such a
condition was an oversight, and a specific condition limiting this use was proposed. Potential problems and
restrictions relating to the 2 "d floor office space have been a recurring theme throughout (1) City
correspondence to the applicant, (2) the Planning Director's approval of the use permit, (3) the staff report
to the Planning Commission, and (4) lengthy deliberation by the Planning Commission.
City of Newport Beach City Council
July 25, 2005
Page 2 of 3
solely for on -site business, the Commission could not come up with a reasonable way to
ensure the 2 "d story addition would not be used as an independent office use in the future,
whether by the applicant or otherwise.
In light of the applicant's testimony and the Commission's deliberations over the
difficulty in enforcing restrictions on future use of the 2" d floor office, on further appeal
the City would need to re- evaluate the permit application as if the 2 "d floor office were
independent office use. As an independent office use, the 2 "d floor addition would
represent an intensification of use and would require additional parking which cannot be
provided at the site. As a result the proposed project would be even more inconsistent
with the Code.
In addition to what was revealed in the applicant's testimony, I again refer to you my July
21 letter to the Commission for other factual errors and omissions in the staff report. An
appeal to City Council will necessitate further time and expense of the City to prepare a
revised staff report to City Council. I submit that addressing all errors and omissions
would result in findings and recommendations that would only weaken the applicant's
grounds for appeal.
The two dissenting Commissioners based their vote on the premise that if the applicant
were not allowed to build a second story, the City would risk development never
occurring at the site or in the neighborhood. I respectfully disagree. At the time the
applicant purchased the property in 2002, it was 100% occupied and providing goods and
services to the community. Since then the applicant refused to renew prior leases and the
property is now vacant with the exception of the Kind Grind. Furthermore, under his
ownership the applicant himself has allowed the property to become an eyesore. The need
for redevelopment is the applicant's strongest argument, yet the applicant himself is
responsible for the current state of the property. This is a manufactured scare tactic.
Newport Shores is a prosperous community with soaring home values, and residents with
disposable income to spend on goods and services. Visitors come from near and far,
whether for a quick surf, a day trip to the beach, or a weekend getaway or vacation
staying at area hotels or with friends or family. Businesses succeeded at the property
prior to the applicant's ownership, and it has the potential to flourish without a 2nd floor
addition. The applicant's failure to properly maintain and operate his own property
should not be rewarded by the City. The Planning Commission made a good decision.
Again, I respectfully request that City Council not use its authority to appeal the
Commission's decision, at further taxpayer expense. To protect my property rights I've
been forced to spend considerable time and energy to call attention to the proposed
project's nonconformity with the Code. Meanwhile the applicant has shown disregard for
the City's time and resources by way of his misrepresentations. The burden should be
placed solely on the applicant to prove why the Commission erred. If the applicant
21562 "d Street
Newport Beach, CA 92663
July 21, 2005
City of Newport Beach Planning Commission Advance by email
c/o Planning Director Patricia Temple Advance by email
3300 Newport Boulevard
Newport Beach, CA 92663
Re: Planning Director's Use Permit No. 2005 -005
Ladies and Gentlemen:
1 apologize for this letter at the 1 Ith hour, however just yesterday 1 received the staff
report to the planning commission, as well as a copy of a letter sent by the applicant to
neighbors in the community (copy attached). In addition to my general thoughts on the
matter, certain issues in this new correspondence should be addressed. 1 have done my
best to keep my comments here brief and to the point.
My property is the nearest residential lot to the site of the proposed project, and therefore
bears the brunt of any negative impact resulting from increased intensity commercial use.
1 purchased my property with knowledge of the nearby commercial use, but based on the
zoning code it was reasonable to expect that a two -story commercial property would not
be built on the current building footprint. The code clearly would allow two -story
residential, however that use would provide relief from the parking and traffic burden of
a commercial use.
Contrary to claims in the applicant's recent letter to the community, it is not only my
personal concerns that are represented by my appeal. I've discussed the matter with many
of my closest neighbors, who also are those closest to the project, and at least 37
households' in a two -block radius of the site believe that a restaurant is an acceptable use
but, like me, question the need and desirability of a 2nd floor office.
In his letter the applicant leaves my neighbors with the impression that it is my goal to
stop his and any other development from ever occurring in the neighborhood. This is
false, as my appeal simply asks for relief from further intensification. It asks that the
proposed use be permitted without the 2nd floor addition, which is superfluous to running
a restaurant. 1 discussed the proposed project with a restaurateur who operates a
restaurant without an on -site office. 1 simply wish to see area property developed in such
a way that it can be feasibly operated without causing undue harm to other property in the
vicinity.
Please see attached petition summary.
City of Newport Beach Planning Commission
July 21, 2005
Page 2 of 4
FAR
The weighted FAR of the building, as currently approved, is 0.63, which is
nonconforming to the code. This is confirmed by Senior Planner Javier Garcia's letter to
the applicant on February 25, 2005. It is an important clarification to note the statement
made in the staff report to the planning commission, that the existing restaurant and
structure itself are not considered nonconforming, is factually inaccurate. A change to
full- service restaurant will lower the weighted FAR to 0.49, but the 2nd floor addition will
increase it back to 0.62, which exceeds the base development allocation of 0.50 for the
proposed use.
Nonconforming Structures and Uses
With respect to expansion of nonconforming structures, the code states that no addition
shall cause an increase in the structure's inconsistency with the regulations of the code.
By changing the permitted use to full- service restaurant and not allowing the 2 "d story
addition, the City would accomplish two of the three purposes of the nonconformity
section, i.e. limiting expansion and bringing the property into conformity. On the other
hand, allowing the expansion would cause an increase in the structure's inconsistency
with the base development allocation prescribed by the code.
Nonconforming Parking
The staff report to the planning commission states that the site does in fact conform to
parking, since a waiver was previously granted pursuant to the code. I submit that the
changes requested in the new permit application would affect the conditions of approval
of the prior permit, and therefore the application should be considered a new application,
not an amendment, and any previously granted waivers no longer apply. This makes the
site nonconforming with respect to parking.
If the change to full service restaurant causes the site to be nonconforming only with
respect to parking, the structure may be enlarged by more than 10 percent of its original
gross floor area, only if all code required parking is provided, unless a waiver or
reduction of the parking requirement is authorized by use permit.
None of the conditions for parking modification or waiver are met by the project. Since
we know from the City's traffic engineers that the proposed use will increase intensity of
parking demand as compared to the previously approved use, the past waiver for parking
should not apply and the code requirements for a parking waiver should be met if the
building is to be enlarged by more than 10 percent.
The staff report notes that parking demand will not be intensified, due to the atypical
features of the prior take -out restaurant, specifically that it contained 29 seats. I reiterate a
point made in the appeal: the prior take -out restaurant seldom, if ever, had more than a
City of Newport Beach Planning Commission
July 21, 2005
Page 3 of 4
few (say eight) dine -in patrons during dinner hours, and also provided delivery service. It
is reasonable to expect that the new restaurant will be more successful in drawing dine -in
patrons; indeed the applicant is counting on it for his venture to succeed.
The staff report also notes that if the project is successful in drawing more dine -in patrons
who drive to the location, their vehicles can be reasonably accommodated along the
metered spaces on Coast Highway or the Spaghetti Bender parking lot. I respectfully
disagree with staff on this point. The Spaghetti Bender parking lot is typically full during
dinner hours, with overflow cars parking in the subject parking lot, the commercial lot
across 62 "d Street, and residential streets. Furthermore, no enforceable reciprocal use
agreement has been entered into that would ensure use of the Spaghetti Bender parking
lot for a future property owner of the site. I have not reviewed the use permit for
Spaghetti Bender, but I would venture a guess that it does not have excess parking
capacity that would allow it to give up its own parking spaces to an adjacent use.
I reiterate that parking could not be called into question with respect to conformance with
the zoning code, if the structure were not being enlarged by more than 10 percent of its
original gross floor area. Due to the addition a new parking waiver is required, and the
conditions precedent for a parking waiver are not met by the project. Disallowing the 2 "d
floor addition addresses this inconsistency with the zoning code.
Enforcement
The applicant has violated conditional use permits in the past, as evidenced by his
violation of permit #2036, including hours of operation and the unauthorized outdoor
dining area at the Kind Grind take -out restaurane. Indeed, as of July 20, 2005, the
unauthorized outdoor dining area was still in use. Also, in the applicant's letter to
residents this week, he still discusses using the 2"d floor office for Spaghetti Bender.
Based on past and present behavior the applicant's willingness to comply with the
conditions of a use permit cannot be presumed a priori.
Approval of the use permit notes that the 2nd floor is not an independent office use,
however there is no reasonable method to evidence compliance with this requirement.
The exterior stairway and office entry make the proposed addition more conducive to
independent office use. If a violation of the condition were found, would the City revoke
the permit and cause the 2"d floor to be destroyed?
If the property changes hands or another use is proposed in the future, the 2 "d floor
addition could result in further nonconformity. Future proposed uses could include
independent office use on the 2 "d floor. causing increased parking demand. If the 2 "d story
is built, there will be increased actual potential for the site to contravene the traffic and
circulation purposes of the FAR section of the code.
As noted in a February 25, 2005 letter from Senior Planner Javier Garcia to the applicant.
City of Newport Beach Planning Commission
July 21, 2005
Page 4 of 4
Approval of the permit would not only allow conditional nonconformance with base
development allocation, but would practically guarantee that the property will never
conform, while introducing potential for further nonconformance without any reasonable
method for abatement. The permit will be very difficult if not impossible to revoke.
Noise and Hours of Operation
Residents in the vicinity are already subjected to noise at night from the surrounding
commercial uses, namely Spaghetti Bender and the two hotels /motels. The applicant's
stated goal is serve dual- income working families in the neighborhood, and surely those
patrons can finish their dinner by 10 p.m.
Conclusion
The downside to commercial use in the vicinity is increased traffic and parking demand.
The downside to residential use is increased building density, however this is balanced by
reduced traffic and parking demand. The proposed higher- density commercial building
will be detrimental in that property in the vicinity will suffer the worst of both worlds:
high intensity traffic and parking demand associated with commercial use, and high
intensity square footage and building mass. Property in the vicinity should not be
subjected to both detriments.
I respectfully request that the planning commission use its discretion to disallow the 2 "d
floor addition, because of the undue harm that would be caused to properties in the
immediate vicinity, and because the proposed project should be feasible without a 2 °d
floor office. I also request that the hours of operation not be increased beyond 10 p.m.
Thank you for your consideration of this matter.
Sincerely,
Nicholas A. Hamilton
cc: Jim Campbell, Planning Department (JCampbell @city.newport- beach.ca.us)
City Clerk (LHarkless @ city.newport- beach.ca.us)
enclosures
61 st Street
Individual Support
Households Canvassed
Household Support
PETITION SUMMARY
Entire 200 block - odd numbered houses
10
10
80% support appeal
on even
62nd Street From Newport Shores Dr. to 322 (even side) and 347 (odd side)
Individual Support 28
Households Canvassed 36
Household Support 21 58% support appeal
Prospect Street From Newport Shores Dr. to 400 (even side only)
Individual Support 9
Households Canvassed 23
Household Support
30% support appeal
Other Newport Shores Chance meeting in neighborhood
Individual Support I
Households Canvassed I
Household Support
Total:
Individual Support 48
Households Canvassed 70
Household Support 37
100% support appeal
53% support appeal
Notes:
• Houses were canvassed Saturday July 16 through Thursday July 21, 2005.
• The petition asked residents to attest to the following: "I hereby oppose the approval of Planning
Director's Use Permit 2005 -005 for the reasons outlined in the appeal filed by Nicholas
Hamilton."
• Vacant homes were not canvassed, including two on 62nd and one on Prospect
• As of July 21, Robert Reyes of 219 62nd has not signed the petition as he has been out of town,
however his support for my appeal is evidenced by his letter to the city opposing the project. so he
is included in the household support for 62nd Street.
• Certain homes were not canvassed because they had already made their opposition to my appeal
known. In these cases the household has been included in "households canvassed ". The total
number of houses not canvassed (but included in the total canvassed) due to known opposition to
my appeal is three, all on Prospect Street.
• Several residents were unreachable, in which case a memo was lefl explaining my appeal. These
households are included in the "households canvassed" total. It should not be presumed that an
inverse number of households oppose my appeal as compared to those who support it. Of the
households I spoke to, I can remember no more than ten who either opposed my appeal or wanted
to stay neutral.
• I did not canvass more homes because I simply ran out of time. But those canvassed are closest to
the project.
• This is admittedly an unscientific exercise, however it evidences significant public support of my
appeal.
• A copy of original signatures is available at the Planning Commission's request.
• While not scientifically perfect, this analysis was conducted in good faith.
Dear Newport Shores resident,
My name is Michael Hoskinson, you know my family and I from the Spaghetti Bender
restaurant; we have owned, operated and been your good neighbor at the "Bender" for
over 36 years.
A situation has come up in our neighborhood and I wanted to inform you of it and ask for
your help.
Over 3 years ago, I purchased the building directly behind Spaghetti Bender. We were
having many problems with the owner and tenants, after one incident where my Mother
was physically threatened by one of the tenants I knew I had to purchase the building,
which I did shortly afterwards.
After purchasing the property I set forth to design and build the one thing the
neighborhood has been lacking: a small neighborhood Mexican restaurant with office
space for itself and Spaghetti Bender.
Since then, I have had the building completely redesigned into a beautiful building that
will be the best commercial development the Shores has ever seen. I have worked with
the City's Planning department to tailor the development so that it will minimize the
impact to the neighbors and maximize the restaurant and office space.
Within the last month I was at the end of the appeal period for the Conditional Use
Permit, this is the City process that permits the concept and allows it to move forward.
My closest neighbor, with whom I had met in May to explain all the work I had done on
his behalf to minimize the impact that the Thai Wave previously had on him, chose to
appeal my project. He is asking the Planning Commission to deny my building project.
So what is the problem? At the Planning Commission meeting to be held on Thursday,
July 21" At 6:30 PM, the Planning Commission can choose to uphold the neighbor's
appeal and stop my project and all the work I have put into building a very quality
development for West Newport, all for the fears of one neighbor.
Why should you care? For many reasons that I will share with you.
I ) My project places no negative demand and will in fact have a very positive impact
on our neighborhood. In his appeal, my neighbor has stated his fears that my
restaurant will create tremendous parking problems. To alleviate this possibility I
will utilize my building's parking along with Spaghetti Bender's. Spaghetti
Bender is only open at night so there will be no parking issues during the day. As
is true with other local restaurants, the bulk of business at night will come from
the surrounding neighborhood keeping parking problems to a minimum.
2) In my plan, 1 have removed one entire business, the Nail Salon. This business had
4 stations for nail and hair customers and a separate room for massage. 1 have
used this space to build a kitchen that will satisfy the Health Department
requirements and benefit my guests and employees.
3) The Thai Wave restaurant had 29 seats, Salud restaurant will have 25.
4) Increased demand for my office expansion will be zero, all occupants of the
proposed office currently park and work at the location.
5) There are 8 public parking spaces on PCH within 1 block.
6) The Newport Shores commercial strip has been underdeveloped and dated for
many years. The only significant investment and the Shores has been The Best
Western hotel 6 years ago. The danger here is that, to halt my project will chill
any development in the foreseeable future, no one will choose to invest in an area
that the most likely candidate for approval, the one with the reputation of long
service, the one with the most parking and appropriate type of development to
service the neighborhood, was turned down. It has been suggested that the best
way to serve the Shores is to let the commercial business owners fail so that a
"developer" will swoop in and build a new mall with underground parking; that is
surely a fantasy that will never happen in our lifetimes. I believe the answer is to
support development that is appropriate in well - thought concept and execution.
7) West Newport has grown tremendously over the years but services have not
followed. 1 believe my project will increase property values and spur
redevelopment of other commercial buildings.
8) The NB Planning department has held me to strict guidelines and been tough but
fair in its dealings with me. In his appeal, my neighbor implies that the Planning
department made many mistakes in its approval of my project, nothing is further
from the truth; with their tough requirements of me they have ultimately acted
well on your behalf as a resident of the Shores.
9) 1 have the support of the majority of both the West Newport Beach Association
and the Newport Shores Community Association.
10) West Newport residents have suffered from a lack of services. Today, many
residents are extremely busy and need restaurants such as I propose to relax after
work, dine in and serve their To Go food needs. Our area needs businesses such
as what I propose to help create a "sense of community ", a meeting place where
residents can come and enjoy a fine meal close to home
1 1) My neighbor is worried about what might happen, he believes that his fears will
become reality so he asks the Planning Commission to stop my project based on
those fears. My restaurant and office will, in fact, have the opposite effect. A new
place to dine for the locals, a new working space for people that have had
virtually no space for 36 years; all with no adverse affect to the local population
I believe, and it has been told to me by people with experience that the one element for
success in this process is informed locals speaking their minds. if you support growth
and services in our area 1 would welcome your help in the following ways:
I ) Please make your opinion known to the Planning Commission by coming to the
meeting on July 21" and speaking, there will be an open forum after the Appellant
and I speak. This will have the biggest impact by far
2} Our Councilman, Steve Rosansky, would appreciate a call or email letting him
know how you feel about this and other future developments in our part of
Newport Beach; it is very helpful to him to know how his constituents feel on
these important issues. His contact information is at the bottom of this letter.
07/20/2005 29:06 FAX
Q009
In closing, I want to thank you for taking time to read this message and for supporting my
family and I for over a third of a century; we have had a great life serving the community
and are looking forward to continuing that service with our new venture.
My grandfather, Papa Lorenzo, was famous for making people feel as though his
restaurant was their home; 1 look forward to continuing that great tradition at my new
restaurant-
1 truly believe that the future of progress in the Newport Shores commercial strip depends
on the outcome of this approval; what property owner or developer will waste their time
or money if they see the difficulty that lies ahead for them.
I have put up a website at www.salud4food.cum, please visit it for a picture of the current
building and arendering of the finished building.
1 would be very happy to meet with you to share my building and business plans if you
would like more information, please contact ntc at the locations below.
Yours truly,
Michael Hoskinson
714- 812 -2266
mike @ spaghetti bendgr.cgnt
Councilman Steve Rosansky parandigm Cal aol.cont (949) 631 -9975
Newport Reach Planning Commissioners
Larry Tucker t @o till.cont (Outgoing Chairman) (949) 251 -2045
Michael Toerge strataland@carthliuk.net (Current Chairman) (949) 675 -9312
Jeffrey Cole iwcole@(rarnrnellcrow.con (949) 477 -4710
Barry Baton caton727 @earthlink .net (949) 760 -1691
Bart McDaniel cmcdanielwn�fullertoncb.com (714) 447 -6251
Edward Selich (Outgoing Commissioner) (949) 723 -6383
Robert Hawkins rhawkin.00cardilink.nel (949) 650.5550
Michael Henn mhentt5270a shcg4jhat _net (626) 256 -6870
07/21/2005 02:58AM