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HomeMy WebLinkAbout2008 - September 15 ~.c..~~ Planning Commission Minutes September 15,2008 1 of 27 Minutes Planning Commission City of Orange September 15, 2008 Monday-7:00 p.m. PRESENT: ABSENT: Commissioners Cunningham, Imboden, Merino, Steiner, and Whitaker None STAFF PRESENT: Ed Knight, Assistant Planning Director Gary Sheatz, Assistant City Attorney Dan Ryan, Senior Planner, Historic Preservation Sonal Thakur, Assistant Planner Sandi Dimick, Recording Secretary ADMINISTRATIVE SESSION: Chair Steiner opened the Administrative Session @ 6:40 p.m. with a review of the Agenda. Chair Steiner stated based on the number of public speakers he was considering moving Item #4, Manhattan Supper Club, to the front of the Agenda. He asked Assistant Planner, Sonal Thakur, if she anticipated a large number of public speakers to be present? Ms. Thakur stated she had only been contacted by the owner of a commercial property across the street from the applicant, and she had not anticipated a large number of speakers. Consent Calendar: Item #1, Approval of the minutes from the regular meeting of August 18, 2008. Commissioner Merino noted a correction to the spelling of his name on page one of the minutes. No other corrections were noted. Commissioner Cunningham stated he would abstain from the approval vote as he had not been present at the August 18, 2008 meeting. New Hearings: Item #2, Colburn Residence. Commissioner Merino stated he would have questions on the item. Chair Steiner asked Senior Planner, Dan Ryan, if a representative from the OTP A would be present? Mr. Ryan stated yes, an OTP A representative would be present. Item #3, Bhalla Triplex. Commissioner Merino stated he would have questions on the item. Item #4, Manhattan Supper Club. Assistant Planner, Sonal Thakur, would be presenting the item. Chair Steiner stated he had met with the applicant. Commissioner Cunningham stated he had met with the applicant. Commissioner Whitaker stated he had visited the restaurant for a meal. Assistant City Attorney, Gary Sheatz, stated it was important for the Commissioner to disclose meetings with applicants. Legal Staff, as a rule, had discouraged Planning Commissioners from meeting with applicants; however, if they had met disclosure was important. Commissioner Merino stated, as a personal policy he met with applicants if they asked to meet with him. Mr. Sheatz stated their obligation was Page 1 of 27 Pages Planning Commission Minutes September 15,2008 2 of 27 different than that of the City Council whose members were voted in by the public and encouraged to meet with community members. The Commissioners held appointed positions which placed them in a different role. Other Business: Chair Steiner stated he would open the meeting with a welcome to the new member of the Planning Commission, Matthew Cunningham. He asked Assistant Planning Director, Ed Knight if there was any other business or news from City Council. Mr. Knight stated the Planning Commissioners would receive a flyer regarding the upcoming Planning Forum, scheduled for October 16, he asked the Commissioners to give it some thought and advise him if they would be available to attend the meeting. Chair Steiner stated he would not be available to attend. Mr. Knight stated the City Council had heard the Zoning Amendments for parking and had approved with a change to the distance for off street loading, and increased the guest parking in apartment dwellings of 3-4 bedrooms. The changes were not significant. He stated the Commission would be hearing an item scheduled to come before them regarding regulations on artificial turf. Chair Steiner asked if the issue had been prompted by the phone call that he had referred to City Staff. Mr. Knight stated that may have played a part in it; however, there had been an article in the Register regarding the matter and the debate with water usage that had also prompted discussion. Commissioner Merino stated he believed the Zoning Ordinance contained an extra review process for properties in Old Towne and felt there would be debate on the equality issue for turf applications in specific areas. Commissioner Whitaker asked if the ordinance covered residential applications only. Mr. Knight stated it covered residential, commercial and industrial applications of turf. The Administrative Session closed @ 6:50 p.m. REGULAR SESSION: Chair Steiner welcomed and introduced Commissioner Cunningham and thanked the City Council for their appointment. Commissioner Cunningham had a long history of service to the community and it was their mutual good fortune that he joined the Planning Commission. PUBLIC PARTICIPATION: None CONSENT CALENDAR: (1) APPROVAL OF THE MINUTES FROM THE REGULAR MEETING OF AUGUST 18,2008. Commissioner Whitaker made a motion to approve the minutes of August 18, 2008 with the correction as noted in the Administrative Session of the Planning Commission. SECOND: AYES: Commissioner Merino Commissioners Imboden, Merino, Steiner and Whitaker Page 2 of 27 Pages Planning Commission Minutes September 15,2008 3 of 27 NOES: ABSTAIN: None Commissioner Cunningham MOTION CARRIED NEW HEARINGS: (2) MINOR SITE PLAN 547-08; DESIGN REVIEW COMMITTEE NO. 4294-07; AND ENVIRONMENTAL NO. 1802-08 - COLBURN RESIDENCE A proposal to relocate and expand a one-car garage, raise an existing dormer and install a new roof dormer on a 1 Y2 story contributing residence within the Old Towne Orange Historic District. LOCATION: 205 N. Pine Street NOTE: Negative Declaration No. 1802-08 was prepared to evaluate the potential environmental impacts on this project in accordance with the provisions of the California Environmental Quality Act (CEQA) per state CEQA Guidelines Section 15070 and in conformance with the Local CEQA guidelines. RECOMMENDED ACTION: Adopt Planning Commission Resolution No. 32-08 approving the Negative Declaration and allowing the relocation of the garage and modification to the residence. Senior Planner, Dan Ryan, presented a project overview consistent with the Staff Report. Chair Steiner opened the item for any questions to Staff. Commissioner Merino stated he understood that the CEQA impact was associated with the existing garage. He asked if the CEQA impact was from the relocation or if the garage was just being significantly remodeled would that be considered a significant impact under CEQA. Mr. Ryan stated the significant impact would be from demolition or relocation. If there was an addition to the garage in the existing position complying with the Secretary of Interior Standards it would not be considered a significant impact. Commissioner Merino clarified if the garage was left in its original location and remodeled or altered within the guidelines of the Secretary of Interior Standards it would be acceptable and not considered having a significant impact according to CEQA. Mr. Ryan stated that was correct. Commissioner Merino stated in reviewing the plans on sheet A2-3, it appeared that the original construction or walls that were left were less than 2/3 of the original Page 3 of 27 Pages Planning Commission Minutes September 15,2008 4 of 27 construction. Based on what Mr. Ryan had stated, Commissioner Merino clarified that under CEQA it would not be considered having a significant impact. Mr. Ryan asked ifhe was speaking to the back area of the garage. Commissioner Merino stated he read the plans as having basically only 2/3 remaining and he was concerned that the original garage was not the original garage anymore based on the amount of remodeling being done to it. Mr. Ryan stated there used to be a percentage that was looked at based on the number of exterior walls remaining, which had been approximately 70%. He stated he was not certain that the standard still applied. He would ask the applicant to address the number of walls that would remain. Chair Steiner asked the applicant to come forward to address the Commission. Applicant, Jon Califf, 369 N. Harwood, Orange, stated the intent was to allow a longer vehicle to be pulled into the existing garage. It could be misleading; they had shown the complete removal of the back wall which would not necessarily be the case. They intended to open the back wall up, essentially putting a garage door in the back wall to allow the residents to adequately pull a vehicle into the space. They would not need to remove the roof or any of the roof framing. They would remove materials to allow a garage size opening in the wall. He believed the total remaining structure to be approximately 70%, and he could verify the number. Commissioner Imboden stated the applicant was starting with a 14' wide garage, and a one car garage, which was wider than what was required to park one car. The depth was a bit sub-standard. He understood the proposal to be for a 27' deep garage and asked what the purpose for such a depth was for as a typical garage generally came in at around 21 '? Mr. Califf stated he would allow the applicant to address that issue more specifically. It was the desire of the applicant to be able to accommodate items in the garage, such as tools and storage space that would normally be housed in a garage. Commissioner Imboden stated his concern with the garage design was that the design simply extended the plane of the side wall, and regardless of what was done with the interior the original garage would not be recognizable. It would appear that the garage was enveloped in a larger structure. He asked if the applicant had explored other options as the proposed garage would appear to loose the cultural resource as it would be consumed on two sides. Mr. Califf stated they had reviewed a number of different roof options. The reason driving the design was due to the type of roof, the fact that there was a clipped Dutch Gable. They had explored various ways to offset that, however, the roof had not worked like a normal Dutch or Hip roof would, where there would be the option to offset a foot or two and absorb that area with a valley. It made the most sense in looking at a completed structure to continue with the same roof design on the back of the structure. Page 4 of 27 Pages Planning Commission Minutes September 15,2008 5 of 27 They had looked at many options. Commissioner Imboden stated he would appreciate a verification of the garage if it actually was 27'. The proposed project included a garage that was larger than most and the project carried a large FAR. Applicant, Steve Colburn, 205 Pine Street, Orange, stated the 27' depth of the garage would be to allow cars to be parked inside the garage, he had not liked keeping his vehicles on the street and felt the neighborhood would be better for it. He required room for tools and yard equipment. He had not required a huge area; however, the proposed project met his needs. There would be two full size cars parked in the garage. The garage backed up to a neighboring property's yard and had no affect on that neighbor. Commissioner Merino stated the 70% issue from his perspective was critical. If under CEQA if the project exceeded 70% it would have a significant impact and approving the project would place them in violation of CEQA. Mr. Ryan stated the 70% was generally applied for tax purposes and to properties seeking certification. Commissioner Imboden stated the 70% related to tax credits and in his experience had not been used to determine whether a project was in compliance. Chair Steiner opened the public hearing. Jeff Frankel, representing the OTP A, address on file, stated he wanted to congratulate Commissioner Cunningham on his appointment. He stated the OTP A applauded the removal of the exterior staircase and the return to a single family use in the proposed project. They had 3 main concerns with the project. The FAR was .50, with the block average being .24; it would be the largest on the block and twice the average. In reference to the Grand Street Study, residents were encouraged to keep their projects in the area of .42 or less. On a recent project that had been reviewed by the DRC and was the next item on the agenda, the DRC had required the applicant to return five times with one of the reasons to reduce the FAR; the DRC was requiring the project to be reduced to .42 which the applicant had complied with. It was an apartment building and not a single family residence. There needed to be some consistency. The project had not met the Secretary of Interior Standards as stated by Staff on page 5 of the Staff Report. The DRC had not discussed and ignored the statement that had been in the Staff Report and the DRC had ignored the comments that the north east portion of the project had not met the standards. Removing roof material and changing the height of the roof was not recommended by the Secretary of Interior Standards and complying with the standards would also reduce the FAR. To comply with CEQA the project must have met the standards and page 5 of the Staff Report conflicted with the Negative Declaration on page 22, which stated the project had not complied with the Secretary of Interior Standards. That portion of the project popped out four feet and was similar to a project heard before the Commission, which was the Welsh project on Schaeffer, that applicant was told that part of the project had not met the standards. That applicant had not been allowed to remove the roof of the pop-out and increase the height of the structure. The Secretary of Page 5 of 27 Pages Planning Commission Minutes September 15, 2008 6 of 27 Interior Standards stated the character defining features shall be preserved. The Old Towne Design Standards, page 26, stated unrelated new construction shall be taken on in such a manner that if it would be removed in the future the historic property would be unimpaired. It would be difficult to tell in the future what the addition was. The project needed to comply with the standards. The DRC conditioned the applicant to use a Nantucket style dormer instead of a Shed style dormer which had been proposed, the standards stated on page 26 that work shall be compatible in massing, size and architectural features to protect the historic integrity of the property. OTP A felt that style of dormer was inappropriate for the style of home in the proposed project. There were concerns with the garage as well, the OTP A opposed site changes regarding relocation of accessory structures and the garage was being drastically altered. Chair Steiner asked Mr. Califf if he had completed his calculation regarding the percentage concerns. Mr. Califf stated he required a calculator to complete his analysis. Ms. Thakur handed Mr. Califf a calculator. Commissioner Merino stated that he now understood that the 70% was no longer a standard by which they could measure as it revolved around tax issues, he asked for clarification on what the measure of significance was - and was it a judgment call in the area of more than 50%? Mr. Califf stated it had been brought up that a portion of the project had not met the Secretary of Interior Standards, and one of the components about a unique architectural style was that it retained its historic integrity. Judging a project based on its historic integrity said volumes about its compliance with the standards. Historic integrity was typically defined as the ability of a property to convey its historic significance and with all the proposed changes the ability of the unique property to convey its significance would not be diminished. Chair Steiner asked Mr. Ryan if there was a defining line that determined whether the historic significance would not be notable. Mr. Ryan stated that would be crossing the boundaries of re-construction and the requirement for a line of demarcation. There were many components to be looked at, certainly it would be preferable to leave a structure in tact to reflect all of its characteristics and defining features. Commissioner Merino asked if there were different standards that applied under a reconstruction that had not been considered. Mr. Ryan stated the reconstruction standards dealt with the defining features that carried through and also made reference to the site, setting and province to the original building. The issue on the proposed project was that most of the original building was being maintained and adding an addition to it placed it under the rehabilitation standards. Page 6 of 27 Pages Planning Commission Minutes September 15,2008 7 of 27 Mr. Califf stated in reviewing the walls and plan and not looking at how much of an entire wall was a whole, strictly looking at linear footage, the percentage of structure remaining was approximately 63%. Chair Steiner asked Mr. Ryan if based on the number just quoted and his familiarity with the project, would it retain its historic value. Mr. Ryan clarified the roof form with the applicant. Mr. Califf stated the roof would be extended at the same slope. The side facing addition matched the slope of the elevation of the house that it faced. It was wider and carried a different pitch which was typical of the house. The structure contained 15-20 different slopes to the roof. He clarified that a reconstruction would be in the case of the loss of a structure. Chair Steiner asked Mr. Ryan, based on his expertise and experience would the structure retain its historic character? Mr. Ryan stated it would be based on the roof forms and building shape. Commissioner Imboden asked Mr. Ryan if he believed the historic resource as it stood today would be recognizable should the garage be constructed as proposed. Mr. Ryan stated yes, he felt it would be recognizable as a historic resource. Commissioner Imboden stated the Secretary of Interior Standards was a document that he was familiar with. He had not run across anything in the standards that dealt with percentages. The percentage determination was used for tax credits which was an entirely separate issue. Although, Mr. Califf was correct in that the Secretary of Interior Standards used the language that a property must have the ability to convey a time and place to enable National Registry listing that would not be the same as integrity. It was only a baseline requirement for consideration for nomination. The essential form and character was what they were looking for in preserving them, where the subtleties came from was in determining how much change could occur to a building and still maintain the essential form and character of the structure. Commissioner Imboden stated he wanted to remind everyone that the garage that was there was a contributing structure and percentage of change was irrelevant, at the end of the day when the project was complete he was concerned and what should be the concern of the discussion is what happened to the contributing structure and at one point would the change undermine the original historic structure. Commissioner Whitaker asked if the project was a relocation and would the addition on the west side of the garage something that would typically be presented as an addition or a rehabilitation, he asked if there would be a line of demarcation to separate the original resource and the secondary portion? Page 7 of27 Pages Mr. Ryan stated the new addition had a set back which was demarcation. September 15,2008 8 of 27 essentially the line of Planning Commission Minutes Commissioner Whitaker asked ifthere was any other trim or just the set back. Mr. Ryan stated it was only the set back. Commissioner Imboden asked how that was handled on the side of the garage. Mr. Califf stated as it was currently proposed there would be an expansion joint at the transition between the original stucco and the new construction. Chair Steiner brought the item back to the Commission for discussion. Commissioner Imboden stated in terms of the design he was pleased, anytime there was an opportunity to add square footage inside the existing envelope of historic structures was a win win situation and it was not necessary to add an appendage to the side of the building to accomplish some of the goals of what the property owner would be after. He stated that he had concerns with the garage. The proposed project had a high FAR and consistently for many years the City, just short of requiring, had asked applicants to come in at a .42, and the City had held that request for several years. He was struggling with the justification to go considerably over that .42. A standard garage was 21' x 21' which would be 441 square feet and the proposed project called for an additional 451 square feet being added to the garage that existed, basically adding a garage that was larger to a garage that already existed. The problems became larger, as he believed the structure would not maintain its form and character. The essential building was being extruded out, the roof form matched and an expansion joint would be added. There were expansion joints in continuous walls the way they currently existed and he felt that would not provide a line of demarcation. It was apparent that there was a lot of pushing and pulling to bring the design of the house to fruition and to arrive at a dormer design that worked. The project had been through the DRC a number of times resulting in a good project that made a very small net impact. Commissioner Imboden stated he continued to struggle with the garage. In his review of the proposed project the original historic resource would be lost and there would be the need for mitigation. It was a project that required a bit of adjusting to ensure that the historic resource remained identifiable. Commissioner Whitaker stated the project was very well conceived. Anytime that there was an opportunity to take away the duplexes that had been jammed into historic homes in the 1960's and restore them back to single family homes was a good thing. It assisted with restoring the historic neighborhood back to what it had been rather than being a place of Chapman rentals. He felt the historic character of the garage could be maintained if there would be something more than an expansion joint, especially in the back where there would be one wall going all the way through, there should be some type of trim or demarcation to allow visibility of where the historic garage was. It was important to understand how families lived today and especially with having larger vehicles. Having a one car garage would be practically impossible and he was in favor of allowing the extra addition, and it was an addition to a historic resource. He felt a condition could be crafted to ensure that there would be a visible line of demarcation Page 8 of 27 Pages Planning Commission Minutes September 15, 2008 9 of 27 He felt the project was such as trim on the back or more demarcation on the setback. well held and he would be in support of the project. Commissioner Merino stated he struggled with the clarity of the significance or non- significance of the overall garage. He would echo the comments made by Commissioner Imboden regarding the main house, it was well done and under a single roof and should be applauded. He too, struggled with the garage, in reviewing the actual way the addition was being handled the demarcation was made. Deepening of the setback and the creation of additional joints could have the opposite effect and be detrimental to the overall design. It was a matter of judgment by the Commission and he felt comfortable to support the project that had been brought before them. If no gesture had been made to the significance at all, in other words, if there had not been a setback, he would not have been in favor of the proposed project. Chair Steiner stated he was inclined to agree with Commissioner Merino and Commissioner Imboden that there was a project before them. The proposed project was not perfect and was not what one or more of them would want to see. Balancing exactly with what they would hope to see and property rights and with interest to the applicant led him to feel that a project that made the sincere effort to successfully comply with the requirements was a project that should be supported. Commissioner Whitaker stated he would be willing to craft a motion to adopt the resolution with an additional condition that on the northern side of the garage that there be a piece of trim added in keeping with the style of the home to mark the point of the addition to the garage. On the southern side there would be the setback, on the eastern side it would remain as it was, and on the northern side there would be demarcation, noted by the trim, of where the addition would be. Commissioner Merino stated as an architect a design change of that type would create a negative impact on the overall design. The proposed project was aesthetically pleasing and if they tried to make small design changes it would negatively impact the overall design. If Commissioner Whitaker felt strongly that something must be done it would be better to have the applicant go back and bring back a design change and to consider the garage design as a whole. Chair Steiner stated the concern was well taken. It was not apparent what the negative impact would be in adding trim and how that would play out, it might be fantastic or it may not work at all. Commissioner Merino made a motion to adopt PC 32-08, approving Negative Declaration 1802-08; Minor Site Plan 547-08; Design Review Committee No. 4294-07; Colburn Residence, as written, for relocation and expansion of a one car garage, raising of an existing dormer and installation of a new roof dormer on a contributing Old Towne residence. SECOND: AYES: NOES: Commissioner Cunningham Commissioners Cunningham, Merino, Steiner and Whitaker Commissioner Imboden Page 9 of 27 Pages ABSTAIN: None September 15,2008 10of27 MOTION CARRIED Planning Commission Minutes (3) CONDITIONAL USE PERMIT NO. 2597-06; MINOR SITE PLAN NO. 0413-05; ADMINISTRATIVE ADJUSTMENT NO. 119-06; & DESIGN REVIEW COMMITTEE NO. 4119-06-BHALLA TRIPLEX A proposal to demolish a non-contributing one-story duplex and construct a new three unit two-story apartment within the Old Towne Historic District LOCATION: 438-440 S. Olive Street NOTE: This project is categorically exempt from the provisions of the California Environmental Quality Act (CEQA) per State CEQA Guidelines Section 15303 (Class 3-New Construction of Conversion of Small Structures) and Section 15332 (Class 32-In Fill Development. RECOMMENDED ACTIONS: Adopt Planning Commission Resolution No. PC 33-08 approving the demolition of the one-story duplex and allowing construction of the three unit apartment building. Commissioner Whitaker stated he would be recused from the item as the Diocese was a client of his law firm, and the Holy Family Church was within the 500' buffer zone. Senior Planner, Dan Ryan presented a project overview consistent with the Staff Report, noting that there was a duplicate condition, No. 35 & 39, regarding installation of an automatic irrigation system and No. 39 shall be removed from the resolution. Chair Steiner opened the item for any questions to Staff. Commissioner Merino stated the Administrative Adjustment regarding the setback was a reduction in the 45' requirement to 10', and was that correct? According to the chart on page 4 of the development standards, the rear setback was stated as 45' required, with the proposed at 10'. Mr. Ryan stated those were the existing and proposed. The front setback would be reduced from the required 20' with a 16' reduction to the front setback. Commissioner Merino clarified that there was a 45' requirement for the rear setback. Mr. Ryan stated no, that was not correct. The information provided noted the existing setback and the requirement was 10'. Chair Steiner clarified that under the column heading what was listed was the requirement and not what existed? Mr. Ryan stated correct. Page 10 of 27 Pages Planning Commission Minutes September 15, 2008 11 of 27 Chair Steiner stated it was misleading as the current setback read as 45' and that was appearing under a column heading required. Mr. Ryan stated that was an error. Chair Steiner asked the applicant to come forward to address the Commission. Applicant, Mr. Shiv Talwar, 4091 W. Riverside Dr. #110, Chino, stated he had worked with Mr. Ryan and the DRC for the past two years on the project. They had followed the suggestions and revised the project and drawings. Initially the project had an FAR of .80 and it had been reduced to an FAR of .42. He thanked the Staff for providing recommendations and they were willing to accept all of the conditions and recommendations contained in the Staff Report. Chair Steiner opened the hearing for public comment. Mr. Frankel, representing the OTP A, address on file, stated their main concern was that there already existed 7 apartment buildings on the same block as the proposed project. The OTP A felt the block could not support any more of that type of development without further diminishing the historic integrity of the block and the point of its eligibility for listing. How could a project as presented not add to the cumulative impact of the block and of the district as stated in the Staff Report? He felt they were beyond building more apartment buildings in Old Towne and the type of project being presented was inappropriate for the district. Commissioner Steiner brought the item back to the Commission for discussion. Commissioner Imboden stated he appreciated the interest of the OTPA in the block of the proposed project. It was a challenged block as far as the historic district was concerned. The property in its current state was in existence when the nomination for historic listing was done. He appreciated that the applicant had worked with City Staff to bring the project down to a .42 FAR guideline that they had been recommending for some time. Commissioner Imboden was not thrilled to see another unit added to the street; however, he was in support of the overall project. The design had not read Old Towne to him, it looked more like South County; however, it was not so far out of the requirements that he would deny the project simply based on that. The project had been through DRC several times and he could support the project as presented. Commissioner Merino echoed Commissioner Imboden's comments. On balance, it was a fairly decently designed project and not a negative development, he could support the project. Commissioner Merino made a motion to adopt PC 33-08, approving CUP No. 2597-06; Minor Site Plan Review No. 413-05; Administrative Adjustment No. 119-06; and DRC No. 4119-06-Bhalla Triplex, for demolition of a non-contributing duplex and construction of a 2-story, 3 unit apartment located within the historic district noting the project was categorically exempt from CEQA. Noting condition No. 39 was removed from the project. Page 11 of 27 Pages Planning Commission Minutes September 15,2008 12 of 27 SECOND: AYES: NOES: ABSTAIN: ABSENT: RECUSED: Commissioner Imboden Commissioners Cunningham, Imboden, Merino, and Steiner None None None Whitaker MOTION CARRIED (4) CONDITIONAL USE PERMIT NO. 2718-08-MANHATTAN SUPPER CLUB A proposal to add live entertainment and dancing to an existing 7,200 square foot restaurant which currently serves alcoholic beverages under CUP 0073-59. LOCATION: 202 S. Main Street NOTE: The project is categorically exempt from the provisions of the California Environmental Quality Act (CEQA) per State CEQA Guidelines Section 15301 (Class-l Existing Facilities) because the project consists of the operation and licensing of Of an existing private structure. RECOMMENDED ACTIONS: Adopt Planning Commission Resolution No. PC 24-08 Denying CUP 2718-08 as requested for live entertainment and dancing. Assistant Planner, Sonal Thakur presented a project overview consistent with the Staff Report. Chair Steiner opened the item for any questions to Staff. Sergeant Lopez stated he had met with the applicant, Mr. Paduano, in early July to gain an understanding of what he was seeking to do. Mr. Paduana told him that he was looking for a Frank Sinatra impersonator, or similar entertainment that would enhance the dining experience for his customers. The restaurant was considered to be a high end steak restaurant that catered to patrons between 40 and 50 years of age, this was all according to the applicant. Sgt. Lopez stated he sent officers to the Manhattan Supper Club on an occasion when a complaint had come in and they spoke with general manager, Robert Rice. Mr. Rice told his officers that the owner had left approximately 1 hour ago and that they had hired a promotion disc jockey and they were collecting a cover charge to pay for the disc jockey. Sgt. Lopez stated he spoke with Mr. Paduano later in the week after discovering that there was a web site advertising doors opened at 10:00 p.m., two dance floors, three full stories, beautiful booths and V.I.P. bottle service. There had been employees at the restaurant handing out cards advertising the V.l. P. bottle service at Cuban Pete's Lounge at the Manhattan Supper Club. When he had confronted Mr. Paduano, as he had failed to provide the information about the events that he had already been conducting at the time of their meeting, Sgt. Lopez stated that Mr. Paduano stated that his CUP carried no conditions and the Police Department should not Page 12 of27 Pages Planning Commission Minutes September 15, 2008 13 of 27 be bothering him and they should be grateful that he was not operating a strip club out of his restaurant. On that same day, Mr. Paduano contacted Sgt. Lopez to apologize and to tell him he would be stopping the night club events and D.J. service and that he would be strictly operating a restaurant as he had initially intended and he gave his word that it would not happen again. A police officer was sent out to the Manhattan Supper Club on the following Saturday and found that the night club was back in action. The restaurant had disco balls hanging from the ceiling, there were strobe and red and blue flashing lights with approximately 40 patrons dancing inside of the restaurant. The parking lot was full and patrons were parking in the residential areas west of the business. Two days later they received a call for service regarding a bar brawl inside of the restaurant, a patron had been struck in the head with a beer bottle and it took 7 officers an hour and 20 minutes to get the scene under control and to interview the many witnesses that were present. The suspect had fled the scene. The call for service required the service of two thirds of the swing shift staff, Orange Fire & Rescue were also were called out to assist the victim. Sgt. Lopez stated he contacted City Staff to apprise them of the situation and gave them the website information and photos of people waiting to get inside. The furniture had been moved to accommodate the dance floor somewhere in the range of 350-400 square feet. The most recent report was one week ago Saturday, when Mr. Paduano's D.J. that had been hired through Cuban Pete's assaulted his very own manager. Again it was necessary for the Police Department to respond to take an assault and battery report and an arrest was affected. He shared comments from the Police Report: Manager, Max Hanley, stated that on Thursday and Saturday they have a night club at the restaurant and during the Saturday night club an altercation ensued where the D.l struck the manager in the face resulting in the Police Department being called. He was pointing out all of these things that would not necessarily occur if Mr. Paduano was actually running a restaurant. The types of incidents that had occurred were common with bars and night club and not the type of calls the Police Department would respond to at a restaurant. The incidents were common with bars and night clubs. The Police Department vigorously opposed any type of issuance of a CUP that would permit dancing or live entertainment, including a D.J. service. Chair Steiner opened the hearing for public comment. Will Goodman, 143 S. Waverly St., Orange, commented he was in favor of opportunities for live music and entertainment in the City. He was not familiar with any of the incidents occurring at the restaurant and he had frequented the establishment for dinner with his wife. He felt the City should encourage live music, jazz and other appropriate entertainment that would fit into the restaurant. He had not been to the location during any type of night club or had not seen that occurring. He thought the City should encourage live music venues under the appropriate conditions. Chair Steiner closed the public hearing and brought the item back to the Commission for any questions to Staff. Commissioner Merino stated in the Staff Report it was noted that the applicant had requested a 12' x 12' removable dance floor, he had visited the restaurant and also spoken with the applicant, he asked if the applicant had asked for the removable floor. In his observation the floor appeared to already be wood. Page 13 of 27 Pages Planning Commission Minutes September 15,2008 14of27 Sgt. Lopez stated the wood floors in the restaurant were very high end, top notch, maple distressed floors and the reason for bringing in the 12' x 12' removable floor would be to avoid damage to the actual floor. Commissioner Cunningham asked how many calls for service had the Police Department had to the Manhattan Supper Club. Sgt. Lopez stated they had responded to two assaults, a felony assault with a deadly weapon and one week ago Saturday, a misdemeanor assault and battery. Commissioner Cunningham asked ifhe felt the calls for service were the result of the live entertainment or alcohol consumption. Sgt. Lopez stated the live entertainment would not be a reason for patrons to get into a fight; however, alcohol would be a contributing factor. Commissioner Cunningham asked how many times the night club event occurred at the restaurant. Sgt. Lopez stated the restaurant hired a promoter named Cuban Pete's that would hold the event on Thursdays and Saturdays from 10:00 p.m. to 2:00 a.m. Commissioner Cunningham asked if the night club had been happening every Thursday and Saturday since July. Sgt. Lopez stated with the exception of the last Thursday and Saturday. Chair Steiner asked if Sgt. Lopez had confronted the applicant or made any efforts to determine the conditions under which the night club event occurred. There was reference that Mr. Paduano had not been present on one occasion during the event. He asked if Sgt. Lopez knew who had put the events together. Sgt. Lopez, referring to a report written by code enforcement officer Michelle Echeverria on Thursday, September 4, stated she spoke with Mr. Paduano and he told her he had hired Cuban Pete's and one of the reasons he had hired him was the restaurant had not produced the financial results that he had wanted and the only reason he could remain in business was due to the night club service. Although the Police Department sympathized with his financial predicament, Sgt. Lopez stated he explained that could not be considered as a factor in support of a night club and dancing. The applicant had provided a glimpse based on his violation of City ordinances as to what they could expect in the future, as past indicators or performance was a good indicator of what would occur in the future. The Police Department was concerned. To date he had heard that Mr. Paduana wanted a Frank Sinatra impersonator, someone to compliment the dining experience, however, his words had not reflected his actions. Chair Steiner asked on the 245 crime with the bottle had an arrest been made in that case. Sgt. Lopez stated no arrest had been made. The case was now under the detective bureau Page 14 of27 Pages Planning Commission Minutes September 15, 2008 15 of 27 for investigation. Chair Steiner stated the resources that would be devoted to that situation were on going. Sgt. Lopez stated that was correct, it was a working case and there would be a resolution necessitating additional resources. Chair Steiner asked on the misdemeanor was there an arrest. Sgt. Lopez stated the D.J. was cited and released. Commissioner Merino asked when the officers were at the restaurant had it been observed that the restaurant was functioning as a restaurant and was there any food service being offered? Sgt. Lopez took a moment to look through his records. Chair Steiner asked Ms. Thakur with respect to the illegal signage that had been referenced what was the relevance of that in the determination of a CUP of this nature? Ms. Thakur stated there was no nexus between the illegal signage and the conditional use permit for live entertainment and dancing. Staff had presented that detail to show that there had been repeated violations for the exterior modifications even after the applicant had come to the planning counter on several occasions. Chair Steiner clarified that the reason to share that information was that Staff felt there was a certain amount of intransigence that could translate over to the dance and live music aspect of the business as well. Ms. Thakur stated yes that was Staff s opinion. Sgt. Lopez stated on September 4, 2008 code enforcement observed that each of the dining rooms were clear and vacant and there was no evidence of table service in the dining area. Code enforcement performed an inspection of the kitchen, which had been cleared of all staff and all food had been closed for the evening. Mr. Paduano had introduced the chef to Code Enforcement Officer, Ms. Echeverria, who was at his computer in his office and there was no evidence of food service at that time. The time of the visit was 10:45 p.m. This scenario presented further concerns for the Police Department. Commissioner Whitaker asked what type of music was played at Cuban Pete's. Sgt. Lopez stated the music was Hip Hop and the patrons who were there on those nights were no where near 40-50 years of age, they were closer to 21-30 years of age. Chair Steiner asked how long Sgt. Lopez had been with the Orange Police Department and ifhe had worked exclusively with the Orange Police Department? Page 15 of27 Pages Planning Commission Minutes September 15, 2008 16 of 27 Sgt. Lopez stated he had been exclusively with the Orange Police Department for 14 years. Chair Steiner asked if he had prior experience with other night club type establishments and more specifically with Quan's Rockin Sushi. Sgt. Lopez stated that he had experience with Quan's. Chair Steiner stated that facility was similar to the operation of the Manhattan Supper Club on those limited number of nights in question, and they were generally known in the business as a crime factory. Sgt. Lopez stated that was correct. They spent a lot of time at that location, working undercover as night clubs generally attracted narcotic sales, prostitution, and those types of arrests are common with night club settings. Chair Steiner asked if the venue was to have jazz combos and attract an older crowd, in that context would that be much of a problem for the Police Department and why had the Police Department initially recommended approval and now they were recommending denial? Sgt. Lopez stated when he had initially spoken with Mr. Paduano he had stated that he had not wanted dancing, the dancing was not mentioned and I told him the Police Department would not support that request. Mr. Paduano was told that the Police Department would not support anything other than a 3 piece band and there would be other conditions, such as no admission charge, no membership fees and Mr. Paduano stated that was fine as he was operating a high end restaurant. Chair Steiner stated having been to the location and having met with the applicant that was what the restaurant appeared to be. Commissioner Merino stated if a restaurant had some type of 3 piece band providing entertainment while patrons dined, would that present the same type of problems that they were discussing? Sgt. Lopez stated the band in and of itself would not be the cause of the problem, the problem occurred when food service ceased and only alcohol was served. It was difficult to monitor over serving with a large number of people in a venue. It was difficult for a bar tender to realize who was at their limit the problems would not arise from the entertainment but more likely from the service of alcohol that went along with the entertainment and the lack of food service being provided. Commissioner Merino asked if the removable dance floor was in the application. Ms. Thakur stated she could not locate the specific information regarding the dance floor. Chair Steiner asked the Assistant City Attorney, Gary Sheatz if the absence of a condition merited tacit approval? Page 16 of27 Pages Planning Commission Minutes September 15, 2008 17 of 27 Mr. Sheatz stated it would not. Chair Steiner asked the applicant to come forward and address the Commission. Applicant, Anthony Paduano, 302 S. Main Street, Orange stated in hearing the comments presented he would not want the night club either. It was an isolated event; this was a commitment that Robert Rice, general manager, had made with Cuban Pete's. It was an avenue to make more money. Cuban Pete's had come to them with an offer of $5,000.00 per event. Business during the summer had been very slow it was a financial opportunity. In hearing Sgt. Lopez and the information presented in the Staff Report it sounded awful, however, it was not something that he condoned or wanted to do. There was one more night that had been arranged and he would not agree to have another event. When code enforcement had come out he gave Ms. Echeverria a tour, at that time there was no dancing while he was there and patrons were very well behaved, there were no less than 6 Angel players at each of the events, and one of the owners of Cuban Pete's was also some type of sports agent. On the incident that happened, the felony assault, he stated the Police Department had sent out a lot of officers for a girl fight and he had asked why so many had responded; he was told that they had nothing better to do. Mr. Paduano stated that he brought this up as he had not wanted to be viewed as a drain on City resources. It was not necessary there was no chaos, they had security on staff. The girl was sitting outside waiting on the paramedics to arrive and his managers had towels on her. He understood the concerns over Police Department resources and it was a touchy subject due to the other venue that had been on Tustin Avenue, everyone was concerned that Manhattan Supper Club could become that type of business. He clarified that his comment to Sgt. Lopez was not that they should be glad that they had become a topless bar, but commented that he was not the Pump Room as they carried the same CUP as he had for his restaurant. As far as the complaints from residents he had met with neighbors. He tried to contact the resident that had registered a complaint with the City and he had complained that the valet company that was being used had commandeered the Wells Fargo parking lot. Prior to any of the events he had spoken with the broker of the Wells Fargo building and the manager at Wells Fargo to ask if they could allow them to utilize their parking lot for overflow. They had responded that the parking lot could be used after 7:30 p.m., and he had not been aware that a permit was needed to use a secondary parking lot. The Cuban Pete's nights were isolated events. He had spent 1.4 million dollars doing his T.l.' s, he was not the owner of the building, just the owner of the business and he had not spent that type of money to impose upon his conditions and obtain a live entertainment license to sell off as he was there for the long haul. He had been promised by Cuban Pete's that there would not be dancing, he was told that there would be Latin music, as it was a Latin crowd, there were no disco lights just the normal chandeliers and there was a light sitting on top of the speakers that the D.J. had brought. He had stopped the Cuban Pete's events due to the dancing. The patrons were well behaved. The incident that had occurred between the manager and the D.J. occurred while there had been Police Department on site. Mr. Paduano stated Sgt. Lopez had made a comment: your best case scenario was there worst case scenario; the Police Department had not wanted him to be successful as that would deplete Police Department resources. The comment baffled him, he was a business in the City and he had spent a lot of money, he could have been anywhere. He Page 17 of27 Pages Planning Commission Minutes September 15,2008 18 of 27 chose Orange due to the old school feel he wanted, as sort of a Rat Pack, New York style type of theme. In regard to the crime, he was surprised with the crime statistic of 250% and 248% over concentration, he had questions for Sgt. Lopez when he made that comment and the main question was if those statistics included the Main Place mall, his response was that it had included the Main Place Mall. When the high crime rate was stated, and the draining of Orange Police resources commented on, it was not a totally correct statement as there would be Santa Ana Police Department responding to over 50% of the crime at Main Place Mall. He had spoken to Sgt. Lopez regarding liquor licensing and the concentration statistics, and the Main Place Mall was within those statistics as well. He had not wanted to sound arrogant, he had brought one of his managers with him and they had recently met people who had not only been to La Brasserie for entertainment and dancing, but were people who had also been entertainers at the venue. He had pulled up facts that showed, permit or not, there had always been live entertainment at the restaurant. He understood the entertainment factor had been grandfathered in. Mr. Paduano stated as far as the pre-school was concerned it was closed long before he was open and he had a good relationship with the pre-school which closed at 6:00 p.m. at the latest. He had submitted a list of 33 neighbors who he had spoke with regarding any concerns they might have. Only one neighbor had even known about the night club events. Chair Steiner stated the Commission was in receipt of a list, dated September 15, 2008, of 33 names with the following statement: I support the Manhattan Supper Club with their desire to have live music and dancing, it was understood to include jazz, rock and special guests such as Frank Sinatra impersonators. Mr. Paduano stated there was a resident that had been present earlier. Chair Steiner stated a card had been submitted by Vicky Fuller, 215 S. Feldner Road, Orange with a check mark noting in favor of the item. Mr. Paduano handed the Chair an additional card with Ms. Fuller's comments written on the back which the Chair read for the record. Commissioner Whitaker asked if Mr. Paduano had been on the Cuban Pete's web site and stated that it was still up. Mr. Paduano stated he had been to the web site. Commissioner Whitaker stated the web site continued to advertise the night club events at Manhattan Supper Club every Thursday and Saturday night. Many of the pictures at the web site were getting close to the risque side. They appeared to be photos taken from inside the club. He understood there were many people responsible for different situations; however, at some point the buck had to stop with Mr. Paduano, the owner. Commissioner Whitaker had visited the restaurant Saturday, he had a wonderful dinner and the restaurant served excellent food and offered very good service, but he was concerned there was another pattern of allowing poor conduct. It made it difficult to be in support of the item before him. The applicant would never get a second chance to Page 18 of27 Pages Planning Commission Minutes September 15, 2008 19of27 make a first impression and instead of his first impression being the fine dinner he had it was all of the web page items and the information contained in the Staff Report. He asked Mr. Paduano what he intended to do about the Cuban Pete's events. Mr. Paduano stated that had completely stopped and he would contact the event coordinator to remove his affiliation on the web site. He would be willing to shut the whole place down if any other incidents of that nature occurred at the restaurant again. It was without a doubt anything he had ever expected. It had helped them out financially, but he would not use that for an excuse. He had passed on $10,000.00 for the last events due to the activities he could not control which had been primarily the dancing. The times that he was present at the event the crowd was well behaved, but nothing that he would want his restaurant to become. He had experienced damage to his restaurant due to too many people in restaurant. He wanted to pursue entertainment in the form of jazz, which he would need to use caution with. Patrons were asking for it, it would be kept at a low volume as not to disturb dining patrons. The entire plan needed to be thought through. He was willing to take a fine or to be closed down if any type of a night club atmosphere ever occurred again. They maintained bar food or a bar menu that would be available to the surrounding industries that would be ready for people getting off of work late. Commissioner Whitaker asked how long the kitchen remains open. Mr. Paduano stated the kitchen stayed open until the last patron was finished, it varied. On Saturday the kitchen remained open for the preparation of bar menu items as needed. Commissioner Whitaker stated on Saturday evening he and his wife had arrived at 9:40. The staff member at the front desk stated she needed to check to verify that the kitchen was still open. Mr. Paduano stated the intent for the live entertainment would be to offer diners an opportunity to listen to music while dining or in the lounge. Although they had the ability to be open later he was certain that they would continue to close within their normal business hours. There had been so much emphasis put on the Cuban Pete's events, and he understood some of it, and on the other hand it was not the plan of the restaurant. Commissioner Whitaker stated when he had visited the restaurant and asked how late the restaurant remained open, the person at the front desk stated it was different all the time. It concerned him, as Sgt. Lopez had stated, it was an on site CUP for an eating establishment, and if the restaurant remained open without food service that was a concern. Mr. Paduano stated the employee who was at the restaurant on Saturday was a new employee and that may have had something to do with it. They would close early if they had no customers, however, the kitchen generally remained open until 10:30 p.m., and there was no sense in remaining open if there were no customers in the restaurant. Commissioner Merino stated the applicant had expressed the concept of the restaurant to Page 19 of27 Pages Planning Commission Minutes September 15,2008 20 of 27 host a Frank Sinatra, Rat Pack type of entertainment and he asked if that was correct. Mr. Paduano stated yes, that was correct. Commissioner Merino stated when they had met and during that discussion Mr. Paduano expressed that the entertainment would be critical to the success of the restaurant. He asked why was Cuban Pete's hired when that had not matched his business model or anything else that has been stated to this point? Mr. Paduano stated it was 5 events with $5,000.00 per event and they were private events. It turned out to be more of a promotional event and there were more people at the events than he had anticipated. Commissioner Merino stated that Mr. Paduano had stated that he was not aware of what Cuban Pete's was doing. Mr. Paduano stated he had been approached by Cuban Pete's as they had attempted to purchase La Brasserie and their offer had not been accepted. They had tried to reach him for several months and ultimately reached the general manager, Robert. Mr. Paduano stated that he had been away from the restaurant much of the time due to a family medical situation. He had cut Cuban Pete's off and also terminated the manager due to the problems this situation had caused in the long run. Commissioner Merino stated that Mr. Paduano had indicated that he was unaware of the situation, but aware enough about the situation to go to Wells Fargo and deal with the potential valet situation. How was he aware of that situation? Mr. Paduano stated he had been at the restaurant and had seen all the cars, there were a lot of people there. He then contacted Wells Fargo about the use of their parking lot for overflow parking. Commissioner Merino stated if Mr. Paduano had already noticed some situations developing. Mr. Paduano interrupted Commissioner Merino's comment and stated there was not a situation developing; it was a very well behaved crowd with no problems. A fight occurred two weeks later, the girl fight, and he had been excited about the event continuing. There were people ordering food, they had sold more dinners on those evenings, as patrons were coming in for dinner prior to the night club. Commissioner Merino asked if the entertainment could only be operated in conjunction with the dining room could the restaurant be successful. Mr. Paduano stated yes, that was what he wanted to do. Commissioner Cunningham asked how the fight with the D.J. started. Mr. Paduano stated that the manager, Max, had politely asked the D.J. all night long to Page 20 of27 Pages Planning Commission Minutes September 15, 2008 21 of 27 lower the music which was too loud. The D.J. felt disrespected all night long, and his side of the story was that Max had been on him all night long telling him with cuss words to lower the music. At the end of the night when all was said and done Max had walked up to the DJ. to tell him no hard feelings and instead of shaking his had the DJ. hit him. Max was furious that someone would strike him. The Police Department was there and Max asked to have the D.J. arrested. The Police Department said no, the City would not spend resources arresting someone for an assault they had not seen and it was up to Max to place him under citizen's arrest. That brought up another point, Sgt. Lopez had spoke about a detective working on the ongoing investigation into the girl fight. He had never been contacted or anyone at the restaurant had been contacted in regard to that fight and he wasn't sure how much time they were actually spending on the investigation. Commissioner Cunningham stated he had met with the applicant at the restaurant and clarified that Max was still a manager at the restaurant and the D.J. was hired through Cuban Pete's. Mr. Paduano stated that was correct. That particular D.J. was not their normal D.J. and this person had been sent in his absence. When the D.J. showed up that was the initial problem as Max had questioned who he was. They had a hand-shake agreement with the DJ. that they would not play blaring music or play certain types of music. They had not wanted Hip Hop music played; they were O.K. with the Latin music. Commissioner Cunningham stated earlier he had made reference to a neighbor not being able to park at Wells Fargo and asked had he registered support or opposition to the events at the restaurant? Mr. Paduano stated the neighbor had spoken broken English, everyone he approached had been told that they were welcome to attend the meeting, regardless of whether they were for or against him. He had approached the neighbors in a polite and respectful manner and most of the neighbors knew nothing about the event. He had contacted the City to attempt to get a name of the neighbor who had complained but had not received that information. Commissioner Cunningham asked for the square footage of the lounge area? Mr. Paduano stated it accommodated about 50 people sitting down. Commissioner Cunningham stated if there would be a 3 piece combo, jazz type entertainment, had he planned on placing the 12' x 12' dance floor near the combo to have dancing? Mr. Paduano stated the restaurant had distressed wood floors and he would not bring in the portable dance floor. The reason he requested dancing, it was not something he wanted to regularly do, however, everyone who had inquired about a holiday party had requested dancing or a dance area. The floor would be used for private parties. The Police Department was against having a designated dance floor. There was no way to ask for limited dancing in the restaurant, through planning there had to be a specific request for a dance floor and that was the reason for the 12'x 12' flooring. Page 21 of27 Pages Planning Commission Minutes September 15,2008 22 of 27 Chair Steiner stated there had been two other cards that had come in and invited the speakers to come forward. Mike Laher, 412 N. Olive, Orange, stated she had been to the restaurant and she was not aware of the night club situation, she had come to the meeting to see what was going on in the City. The Manhattan Supper Club with a dance floor sounded good, as far as the night club she thought Mr. Paduano had made a mistake and it would not happen again. If they had the jazz and everything else the owner talked about, could be good as there was nothing like that in Orange. Velvet Sexton, 114 N. Olive, Orange, stated she had been to the restaurant and thought it was great. She was for having some type of entertainment in the City. They were a little old school in the City and in order to go to a nice place it required going outside of the City. Her business was next to Pauls Bar, and the Police Department talked about two response calls, where at Pauls it was an everyday event. There should be some type of entertainment and she liked the club idea and it would be a good thing for the college kids and with some type of structure it could be controlled. Commissioner Merino asked Sgt. Lopez in his professional opmlOn if the Planning Commission conditioned the location to have entertainment in conjunction with the dining room what would be his assessment that the condition would be complied with? Chair Steiner asked Commissioner Merino if he could amend his question a bit, those conditions could conceivably be very restrictive in a good way to address concerns he had and asked if there would be any scenario that the Police Department would support for the request for entertainment or was their opinion tainted by the previous situations? Sgt. Lopez stated all he had to base his opinion on was what had occurred during the past 6 weeks. What had happened in the last 6 weeks was not what Mr. Paduano had relayed to them and it was a big issue for the department and to the Police Chief. He could not answer whether there would be support with added conditions, as that would be something for them to discuss and make a decision on. At this time based on what they had seen, with the last incident happening just last Saturday. He wanted to make one correction on something that had been stated by Mr. Paduano. The reporting district for crimes was 254% above the average for any reporting district in the City of Orange, that had not included the City of Santa Ana and none of the reporting districts included another City's jurisdiction, he believed he had referred to the alcohol concentration which included a portion of Santa Ana, the Main Place Mall, and that would be taken into consideration. The crimes for Reporting District 61, the 254%, 334 crimes that had occurred in 2007 were strictly just for the City of Orange within the area of S. Main Street. Commissioner Whitaker asked the Assistant City Attorney, if the Staff resolution was approved with approval being denial, the applicant would have an opportunity to reapply and what would the restrictions on reapplication be? Mr. Sheatz stated the only restrictions that there would be on re-application would be that he would have to wait 6 months, otherwise there would be no further restrictions. Page 22 of 27 Pages Planning Commission Minutes September 15, 2008 23 of 27 Commissioner Cunningham stated the applicant had referenced a piano being inside of the former restaurant and it was not a permitted use and asked if the City had problems with that? Ms. Thakur stated the only thing Staff could comment on was what the municipal code had been in 1959, live entertainment was not an out right permitted use, by today's code if the code was silent on a specific use or not permitted they would need an interpretation from the Community Development Director as to whether it would fall into another category. Commissioner Cunningham stated it appeared that there had been entertainment going on. Assistant Planning Director, Ed Knight, stated the information they were receiving was not permitted under the approval, the CUP was for a bona fide eating establishment which also included the word lounge which had not been defined by the zoning code. By having a lounge it might have been an area where people sat while waiting for a table or lingered after dinner and there may have been a piano bar associated with that. It would not have been in anyway close to what they were speaking to in the proposal before them. Chair Steiner stated enforcement activities were generally reactive, if there were no complaints there would be no enforcement problems. That would explain why conduct that was not permitted could take place, but was not stopped due to any perceived need to stop it. Mr. Knight stated that was true and also the license that was issued in 1959 was for a bona fide eating establishment and it always had been, it was never for a bar establishment. Commissioner Merino stated it might be beneficial to gain information whether there had been any calls for service when the restaurant was the La Brasserie? Sgt. Lopez stated there were no problems there; he was not certain whether there was a piano bar or any similar activity in the restaurant. The calls for service were minimal, with someone being a victim, no calls for service for an assault due to being a patron in the restaurant, and it was something that differentiated the difference between a restaurant and a night club. Mr. Sheatz stated reviewing page 5 of the Staff Report there was a discussion regarding the live entertainment and dancing and that issue would require an additional entitlement. The applicant made reference to the fact that there had been that type of activity occurring there it could somehow be grandfathered in, it would only be grandfathered in if it was a legal non-conforming use, to be legal at that time it would have had to have the initial entitlement and through Staffs research the entitlement had not existed. Whether that activity had been going on, it was not a legal use and any misconception about the activity being grandfathered in was not the case. Commissioner Cunningham asked what types of crime had the Police Department had in Page 23 of 27 Pages Planning Commission Minutes September 15,2008 24of27 that area? Sgt. Lopez stated there were 92 reporting districts in the City of Orange, and calls in the reporting district being discussed were 4th highest in the City. The business professions code stated that anything 20% above the average for reported crimes which would be 108 per reporting district, and the reporting district in questions was 254% above the average, the crimes were occurring all over Report District 61, the types of crimes were narcotic related offenses, DUI and drug possession, under the influence and domestic violence, there were assaults and robberies, the crimes that occurred covered the myriad of offenses in that district. Commissioner Cunningham asked if the Police Department felt there was a nexus between the types of crimes that would occur and the type of license the applicant was seeking. Sgt. Lopez stated it was already apparent as they had been to the location twice in the past few weeks, once for a felony and once for a misdemeanor. Commissioner Cunningham stated it was not clear in his mind. He understood what the applicant was looking for and it would not have to be for a Cuban Pete's type of entertainment. He was trying to ascertain what type of incidents occurred and would they be the type of crimes that would result from having jazz entertainment at a restaurant. Sgt. Lopez stated it was a difficult question to answer as there was nothing to compare it to. There was the Pump Room and Extreme and they received all types of calls in those surrounding areas. The types of things that were common with a night club atmosphere were assaults, drug possession, and drug sales. Would Mr. Paduano run a legitimate business based on his original intentions? He had not done so thus far. Mr. Paduano stated his business was a restaurant, it was a restaurant everyday. He did not know where the comment from Sgt. Lopez was coming from. He was sure it went back to Cuban Pete's. He asked how many calls the Pump Room got, how many calls had other bars gotten, he would like to know as he felt the calls to the Manhattan Supper Club were being made out to be so dramatic. One call was a girl fight and the other was a fight that could have happened in a front yard. Chair Steiner stated two calls to a responsible business were two calls too many, his point was legitimate to the point that it was used comparatively relevant, and if it was two thousand calls to the bar across the street, then two calls to his business would be a good thing. He could not necessarily minimize the significance of the two incidents. Mr. Paduano stated on the second call the Police Department had been present doing there own investigative work. He was running his business as a restaurant/lounge as it had been started in 1959, yes absolutely. Four of the Commissioners had been to the establishment, he had spent a lot of money and the place was beautiful. If he had to apologize he would humble himself in anyway he could about the Cuban Pete's thing - they are not welcome back or anything like it. If he had economic problems he would cure them another way or close his doors. He had five children and had not liked that Page 24 of 27 Pages Planning Commission Minutes September 15,2008 25 of 27 type of atmosphere himself and the thought that he was associated with it made him feel bad. Chair Steiner brought the item back to the Commission for discussion. Commissioner Whitaker stated he thought the restaurant was an excellent concept and thoroughly enjoyed a meal there, the service was excellent and the waiter was knowledgeable in respect to wine and the food was superb. The concept of having a small jazz ensemble or swing impersonator was an excellent one. If the proposal had come before them prior to the Cuban Pete's events he would have been all for it. Having reviewed the experience over the last five weeks and hearing about the Police Department's involvement and the removal of a prior CUP to a night club establishment that was formerly a restaurant that went bad, and the knowledge that there were a number of night club promoters seeking venues he could not feel comfortable supporting the addition of entertainment and dancing to the restaurant. In six months if there were no problems at the restaurant and everything was working the way it should than he would not have a problem with it. He would be supporting Staff s recommendation to deny. Commissioner Merino stated he had two concerns for the Commission, one being that they had become over sensitized with businesses that had similar situations with a prior night club that the City had experience with. He felt there was a salvageable application before them and that they could mitigate some of the concerns through very strict and very focused conditions. They had the tools at their disposal and they could be used. He would ask the Commissioners to consider a revision, rather than to throw out the application as a whole. Commissioner Cunningham stated the applicant made a big error with the Cuban Pete's concept and the applicant realized his mistake and was taking corrective action. He felt the Quan's analogy had not really held in comparison. He had been to both locations and they were different places, with different atmospheres and different clientele. Commissioner Merino made a good point that it would not be fair to all future applicants to have the shadow of Quan's hanging over them, and he agreed that the application was salvageable and they could look at restrictions including some sort of a renewable CUP; a CUP that would need to come back to them periodically, almost like probation. In six months the restaurant might not be there to make the application, and under the principals that would not be why a CUP would be granted, but it was something to think about. He was in favor of attaching restrictions and possibly the initial restrictions from the Police Department or items such as exclusion of music such as Rap or Punk, or loud music that attracted a certain type of patron that would make calls for service more likely. Commissioner Imboden stated he fell into the same camp as Commissioner Whitaker. He felt it was a bit remiss, they had heard all sides about good times in a controlled way. The greatest concern he had was with the Police Department involvement, with agreements made that activities would cease and the problems continued, that had not demonstrated the control for the type of application before them. He wished that it was a different case; however, he could not come to the findings with all of the evidence presented. The pictures from the web site showing masses of people outside of the restaurant which would clearly make a noise impact on the neighborhood, blocking off a Page 25 of27 Pages Planning Commission Minutes September 15, 2008 26 of 27 good chunk of the parking lot for that to occur and having the valet utilizing neighboring parking was an irresponsible way for a business to run. He would not feel comfortable moving ahead with the application, he followed the idea about revisiting the application in six months if there were no problems. In theory it was a good concept. Chair Steiner stated he was on the fence with the application and he felt the problem would not happen again, but he could not know if the problem would happen again. The best way to be reassured that the problems would not occur would be to have a period of time where the problem would not re-occur. The situation would need to be judged by their independent facts, and if in the next six months there were not the types of problems that the Police Department had been dealing with in the last six weeks he would have no difficulty approving the application with strict conditions. The problem would be if the applicant could not wait 180 days and prove to an understandably concerned City that the problem was an isolated incident and he felt they could not be expected to ignore the last five weeks. That was what was being asked of them. The experience he had in law enforcement would indicate that the best way to re-assure ones self of problems occurring or re-occurring would be allow a period of time to pass to see if the problems continued. The restaurant was immaculate inside, it was beautiful, and he felt that it was not developed that way to turn it into a dive or some place like The Boogie in Anaheim where people were being shot in the parking lot, he felt that was not what the applicant had intended. He could not pretend that the problems had not asserted themselves in the last 5 weeks, and the applicant had stated he would be willing to pay a fine, he would be willing to shut his doors and they were not asking him to do that, but they were asking for 6 months of no incidents and if that occurred than the application would be salvageable. He felt it would be in the best interest to give the situation 180 days to prove that the problems were isolated incidents. Commissioner Cunningham asked if attaching a condition to a CUP to prohibit a Cuban Pete's type activity accomplished the same purpose as in asking for 6 months of no incidents, could they not simply prohibit those types of events and enable the applicant to move forward with his business and revisit the application later to attach conditions. Mr. Sheatz stated he was not certain how that could be fashioned. He heard a comment about issuing a CUP with a limited duration, those were not legal. Some Cities did that, and they admitted that it would not be enforceable. Once the entitlement was issued the only way to take it away would be through the revocation process. Through a due process, noticing and what some of the Commissioners had gone through with the Quan's scenario. There would be no such thing as issuing a limited duration CUP and that type of concept would not work. In fashioning conditions that would pertain to types of music was illustrated in that the applicant spoke about the type of venue that Cuban Pete's was which he described as Latin and the Police Department described it as Hip Hop - one person's Latin could be another person's Hip Hop. What is Rap? They had been down that road with other applications on CUPs for live entertainment, where live entertainment had not included a DJ. and they had gone around on that conversation. Limiting music would be very difficult. Commissioner Cunningham asked how would they have done that if Cuban Pete's had not occurred and they had reviewed the CUP with the Police Departments Page 26 of 27 Pages Planning Commission Minutes September 15, 2008 27 of 27 recommendation? Mr. Sheatz stated he would have looked for, from a legal standpoint, would have been something tighter as far as the restriction in size, such as no audible entertainment, no amplified music, limiting the number of patrons, allow amplification up to a certain time based on the proximity to residential property. There would be many things that could be conditioned, such as no cover charge and prohibiting table service. There were specific measurable things that could be conditioned. Commissioner Whitaker made a motion to adopt Resolution 24-08, denying CUP 2718- 08-Manhattan Supper Club, as requested for live entertainment and dancing. SECOND: AYES: NOES: ABSTAIN: ABSENT: Commissioner Imboden Commissioners Imboden, Steiner and Whitaker Commissioner Cunningham and Merino None None MOTION CARRIED (5) ADJOURNMENT Chair Steiner made a motion for adjournment to the next regular scheduled meeting of the Planning Commission on Monday, October 6, 2008. SECOND: AYES: NOES: ABSTAIN: ABSENT: Commissioner Whitaker Commissioners Cunningham, Imboden, Merino, Steiner and Whitaker None None None MOTION CARRIED MEETING ADJOURNED @ 9:40 P.M. Page 27 of 27 Pages