Loading...
2010 - October 4Planning Commission Meeting ~~~®~'~ October 4, 2010 Page 1 of 25 Minutes Planning Commission October 4, 2010 City of Orange Monday 7:00 p.m. PRESENT: Commissioners Cunningham, Imboden, Merino, Steiner and Whitaker ABSENT: None STAFF PRESENT: Ed Knight, Assistant Community Development Director Anna Pehoushek, Principal Planner Dan Ryan, Historic Preservation Planner Robert Garcia, Associate Planner Gary Sheatz, Assistant City Attorney Sandi Dimick, Recording Secretary ADMINISTRATIVE SESSION: Chair Whitaker opened the Administrative Session at 6:50 p.m. with a review of the Agenda. He questioned the sequence of comments on the minutes from the September 18, 2010 Planning Commission Meeting. The minute tapes would be reviewed and necessary changes would be made. Item No. 2, CUP Medical Office Parking Extension. Chair Whitaker stated the item was on the consent calendar for an extension of the entitlements. He had a conflict with the item as his business partner had a client on Parker Street. The item could be moved with his abstention. Item No. 3, Qwik Korner, Assistant Community Development Director, Ed Knight stated the applicant had raised some questions regarding a couple of the Conditions of Approval and the item would be removed from the Consent Calendar for an open discussion. Chair Whitaker asked since the item was being discussed, would it not require noticing? Mr. Knight stated no, as there was no change in the action of the item. Associate Planner, Robert Garcia stated there was a potential that the applicant would request a change on the Conditions of Approval and Staff had remained neutral on the potential changes. Commissioner Imboden stated he had not understood and asked for clarification as to why the item would not require additional noticing if they would be opening a Public Hearing on the item? Chair Whitaker stated if they would be discussing Conditions and potential changes to what had been included in the Staff Report, he asked would it not need to be re-noticed due to the nature of the hearing. Assistant City Attorney, Gary Sheatz stated the noticing had already taken place with the Conditions of Approval as proposed. Commissioner Merino asked if Staff would ask that the item be pulled from the Consent Calendar. Mr. Knight stated he would provide that information upon the opening of the Planning Commission meeting. Planning Commission Meeting October 4, 2010 Page 2 of 25 Item No. 4, Zone Change Ordinance Amendment. Chair Whitaker stated he would have questions with respect to the noticing and recusals of Commissioners on the item. He asked how the item would be heard. Mr. Sheatz stated the focus areas would be presented with those that had Commissioners who would be conflicted out first and then the remainder of the areas presented with the Commissioners full participation. Chair Whitaker stated he understood there would be 2 Commissioners who would be conflicted out. Commissioner Merino stated he understood that there would be 2 separate issues for Old Towne, the mixed use area and the apartments. Chair Whitaker stated there were multiple issues involved as the ordinance was Citywide and included Old Towne and Commissioner Imboden would be conflicted on the Old Towne Mixed Use area and Commissioner Whitaker would be conflicted out on the Katella Corridor, Town & Country and South Main areas. Chair Whitaker stated he would not be conflicted out on the Mixed Use for Old Towne, but on the ordinance component. Chair Whitaker asked if all Commissioners could participate in the discussion regarding noticing and procedural issues involved on the item. Mr. Sheatz stated yes they could all participate in that discussion. Item No. 5, Watson's. Chair Whitaker stated the item was back on the Agenda, continued from a previous meeting due to lack of a quorum and he understood that Commissioner Imboden would be recused from the item's hearing due to a conflict. Item No. 6, Ordinance Amendment 17.17. Chair Whitaker stated there were no multi- family properties within 500' of his property and therefore the item would not present a conflict for him. Mr. Sheatz stated there would be no change in the use of the subject properties; the item was for the addition of 17.17 to the Municipal Code and had not involved an application for changes to any of the properties involved. There would be full participation from the Commission on the item and if, at a future date, any of the properties came up for rezoning, the individual conflicts would then weigh in. Commissioner Imboden stated he would have questions on the item. Item No. 7, District Lounge. Commissioner Merino asked if there would be a representative from the Orange Police Department present. Mr. Garcia stated Sergeant Peterson would be available. Commissioners Cunningham and Steiner stated they would have questions on the item. There was no further discussion. Administrative Session closed at 7:02 p.m. REGULAR SESSION: PUBLIC PARTICIPATION: None Chair Whitaker stated there were three items on the Consent Calendar and he would be separating the items out for various reasons. Planning Commission Meeting Consent Calendar: October 4, 2010 Page 3 of 25 (1) APPROVAL OF MINUTES FROM THE REGULAR MEETING OF SEPTEMBER 8, 2010 Commissioner Merino made a motion to approve the minutes from the September 8, 2010 Planning Commission meeting with the changes as noting during the Administrative Session. AYES: Commissioners Cunningham, Imboden, Merino, Steiner and Whitaker NOES: None (2) TIME EXTENSION FOR MAJOR SITE PLAN REVIEW (MJSP 0480-06), CONDITIONAL USE PERMIT (CUP 2683-07), CONDITIONAL USE PERMIT (CUP 2689-07), TENTATIVE PARCEL MAP (TPM 2007-118), DESIGN REVIEW COMMITTEE (DRC 4178-06) AND MITIGATED NEGATIVE DECLARATION (MND 1783-06) - MEDICAL OFFICE BUILDING & PARKING STRUCTURE WITH A SHARED PARKING AGREEMENT A second request to extend the entitlements to construct athree-story, 65,370 square foot medical office building and athree-story parking garage with 395 parking spaces on an existing surface parking area with landscape improvements and a Shared Parking Agreement between two parcels. LOCATION: 999 W. Town and Country Road RECOMMENDED ACTION: Approve aTwo-Year Time Extension for Major Site Plan Review (MJSP 0480-06), Conditional Use Permit (CUP 2683-07), Conditional Use Permit (CUP 2689-07), Tentative Parcel Map (TPM 2007-118), Design Review Committee (DRC 4178-06), and Mitigated Negative Declaration (MND 1783-06). Chair Whitaker stated he was conflicted from the item as the site was within 500' of a client of his law firm. Commissioner Cunningham made a motion to approve the time extension for MJSP No. 0480-09, CUP No. 2683-07, CUP No. 2689-07, TPM No. 2007-118, DRC No. 4178-06 and MND No. 1783-06-Medical Office Building & Parking Structure with shared parking agreement. SECOND: Merino AYES: Commissioners Cunningham, Merino, Imboden and Steiner ABSTAIN: Commissioner Whitaker MOTION CARRIED Planning Commission Meeting October 4, 2010 Page 4 of 25 (3) CONDITIONAL USE PERMIT N0.2758-09 - QWIK KORNER On September 8, 2010, the Planning Commission approved a proposal to upgrade an Alcoholic Beverage Control Type 20 (Off-Sale Beer and Wine) to a Type 21 (Off-Sale - General) License for an existing convenience store. The Planning Commission directed staff to draft conditions of approval for the approval of the request. LOCATION: 481 S. Glassell RECOMMENDED ACTION: Adopt Planning Commission Resolution No. 18-10 approving a request to upgrade an Alcoholic Beverage Control Type 20 (Off-Sale -Beer and Wine) License to a Type 21 (Off-Sale - General) License. Chair Whitaker stated the applicant had requested changes to the proposed Conditions of Approval and the item would be removed from the Consent Calendar to be heard. Associate Planner, Robert Garcia presented a project overview consistent with the Staff Report. Chair Whitaker opened the item for any questions to Staff. Chair Whitaker asked what was Staff's position regarding the requested changes? Mr. Garcia stated from a Staff perspective, on Condition No. 7 there were no concerns with the request for a change in hours. On Condition No. 21 he had not had the opportunity to discuss the Condition with the Police Department and he was not certain if there would be concerns. As long as it pertained to keeping the containers of alcohol in tact, Staff had no opposition to the requested change. Orange Police Department, Sergeant Peterson approached the dais. Chair Whitaker asked what the Police Department's position was on the requested changes to the Conditions of Approval by the applicant and Mr. Garcia had indicated that he had not had the opportunity to discuss those changes with the Police Department. On the request for the elimination of Condition No. 21, this would prohibit the sale of beer in less than a 12 ounce container. Sgt. Peterson stated the Police Department had no opposition to that request. Commissioner Imboden asked if there was any opposition to the request of a change in hours from 11:00 p.m. to 12:00 p.m. Sgt. Peterson stated the Police Department had no opposition to that request. Planning Commission Meeting October 4, 2010 Page 5 of 25 Chair Whitaker invited the applicant to address the Commission. The applicant had nothing to add. Chair Whitaker brought the item back to the Commission for discussion or action. Commissioner Merino stated he felt the issues had been thoroughly vetted during the last hearing and he felt the requested Conditions were those that had been put into place for other locations and he supported the item. Commissioner Merino made a motion to adopt PC 18-10, approving CUP No. 2758-09- Qwik Korner, subject to the conditions contained in the Staff Report and noting the item was categorically exempt from CEQA, and the motion included the modifications to the Conditions of Approval as requested by the applicant. Commissioner Steiner stated on the initial CUP request he had voted in opposition of the resolution. He was currently in support of the Conditions of Approval and he would support the motion. SECOND: Commissioner Cunningham. AYES: Commissioners Cunningham, Imboden, Merino, Steiner and Whitaker NOES: None MOTION CARRIED Planning Commission Meeting Continued HearinE: October 4, 2010 Page 6 of 25 (4) ZONE CHANGE NO. 1258-10 - MIXED USE ZONE STANDARDS ORDINANCE AMENDMENT Continued from September 20, 2010 Planning Commission meeting due to the need to notice additional properties. An ordinance amendment adding new mixed use zoning standards to Title 17 of the Orange Municipal Code to establish zoning and implement the new mixed use land use designation of the 2010 General Plan and Zone Change 1258-10 applying new zoning classifications in order to achieve consistency between General Plan land use designations and zoning in accordance with state law. LOCATION: City Wide NOTE: Final Program Environmental Impact Report (EIR) No. 1815-09 for the Comprehensive General Plan Update was certified on March 9, 2010 and prepared in accordance with the California Environmental Quality Act. The proposed activity is within the scope of the previously approved General Plan and is adequately described in the previously certified General Plan Program EIR for purposes of CEQA. RECOMMENDED ACTION: Adopt Planning Commission Resolution 33-10 recommending City Council approval of an Ordinance Amendment adding new Mixed Use Zoning Standards and definitions to Title 17 of the Orange Municipal Code to implement the new Mixed Use Land Use designations of the 2010 General Plan. Adopt Planning Commission Resolution 34-10 recommending City Council approval of Zone Change 1258-10 establishing consistency between General Plan Land Use designations and Zoning classifications in accordance with State law Chair Whitaker stated the item was a complex administrative issue and he asked Assistant City Attorney Gary Sheatz if before the item was presented by Staff, would it be appropriate to discuss the administrative issue of noticing. Mr. Sheatz stated they could have their discussion initially. It might be more comprehensible to hear the Staff presentation first and then move into the discussion regarding noticing. If there were procedural issues that they wanted to discuss amongst the Commissioners, that could be completed first. Chair Whitaker stated it was a procedural issue that he wanted to address and he had not wanted any of the Commissioners to be conflicted out; he asked if hearing a full Staff Report would cause Commissioners to be conflicted out? Planning Commission Meeting October 4, 2010 Page 7 of 25 Mr. Sheatz stated not necessarily as the Commissioners would be able to participate in some of the areas and he was not certain how Staff would be presenting the item. If the Staff presentation would occur with the segmentation that had been discussed earlier, they might not get to the issue and it could be better to bring up the concerns first and to have a full discussion, rather a more segmented discussion on the ordinance and focus areas. Chair Whitaker asked Principal Planner Anna Pehoushek what was the order of the presentation? Ms. Pehoushek stated the presentation would be more general in nature and it would not get into a more segmented nature until there was discussion about the comment that Staff had received regarding the proposed ordinance. Commissioner Imboden stated he wished that they could have the Staff Report initially as there were a number of speaker cards and it would be beneficial for the audience members to hear that, however, he wanted to raise an issue regarding the noticing. He wanted to ask those questions before they moved into territory that might be somewhere that they had not wanted to be. Chair Whitaker stated that would be fine to have that discussion initially. Commissioner Imboden stated the concern he had related specifically to noticing and the item had been continued from the previous Planning Commission meeting due to noticing. If he had made a mistake he apologized as he had assumed that there was to be more noticing than what had occurred. He asked if he was correct in understanding that the only individual noticing that had been done on the item was to properties that were potentially being rezoned? Ms. Pehoushek stated that was correct. Due to the large geographic scope of the Ordinance Amendment, Staff would not typically conduct a radius related mailing. Because of a direct change to a specific property designation, they would advise the property owner of that change and then a notice was run in the newspaper, which was an eighth page ad to notify the general public. There was also noticing at the kiosks and typical City posting places. Commissioner Merino stated it was his understanding that noticing was provided to some community groups when that group or an area of their specific concern was being impacted and he asked if that had been the case on the noticing for the Ordinance Amendment? Ms. Pehoushek stated there were stakeholder meetings where individuals with an interest were invited and participated in those meetings. That occurred during the draft Ordinance development, before the public review draft was made available. Planning Commission Meeting October 4, 2010 Page 8 of 25 Commissioner Merino asked if there had been re-noticing to allow those groups to realize what had been the fruition of their efforts. Ms. Pehoushek stated email notices had been sent out to all the participants of the stakeholder meetings. Commissioner Merino asked if there was a need to have the item moved by a certain date, if there was any deadline or funding related to the item or could it be continued to allow further input from the public? Ms. Pehoushek stated it would depend on the pleasure of the Commission. Chair Whitaker stated when a property owner had a project and they wanted to have their property re-zoned Staff would send out a radius mailing and if there was a zoning change that took place and completely changed a property's use and conformed inside the zone and had not required a CUP, there would not be any subsequent changes and the applicant could go directly to get building permits and he asked if that was correct? Ms. Pehoushek stated that was correct. Many of the properties were already zoned commercially and the scope of the uses, and she had not wanted to state too much or get into too many of the details of the components given the potential conflict areas. Many of the properties had a very broad spectrum of commercial uses allowed and the mixed use zoning actually scaled back the spectrum of uses to some extent. In other cases it provided greater flexibility in property use. She would want further clarification on the request for further noticing. Staff had sent out over 500 notices and if they generated a 500' radius that would encompass quite a large area of the City of Orange. Commissioner Merino stated with the complexity of some of the interaction of some of the Commissioners and some of the noticing issues; his first inclination would be to continue the item for at least one meeting to gain further information on paper in a Staff Report. Commissioner Imboden stated he agreed and it would be up to the Commissioners to determine the amount of noticing that needed to take place. He felt that at an absolute minimum that adjacent properties would need to be noticed. His concern was that uses were being introduced that were not currently allowed on properties and that adjacent property owners were not aware of the potential changes. It would be only fair to allow the public to share their views in a Public Hearing. Some of the proposed changes, from his perspective, had the possibility of having significant impacts on adjacent neighboring properties. Many of the properties included in the ordinance had adjacency with residential property and many of those being single family residences. He had a concern for those property owners not being included in the noticing. He supported a continuance. Planning Commission Meeting October 4, 2010 Page 9 of 25 Chair Whitaker made a motion to continue Zone Change No. 1258-10- Mixed Use Zone Standards Ordinance Amendment, to a date sufficient to allow re-noticing to properties affected as well as adjacent properties. Commissioner Merino asked if they would be able to have the Staff Report broken down in separate focus areas as certain members of the Commission would be conflicted out and it would be easier to have the item broken down. The present Staff Report had not appeared to have been broken down and it would be helpful if it was segmented. Chair Whitaker asked if the Staff Report could be broken into the focus areas that had been discussed during the Administrative Session. Ms. Pehoushek stated she understood the request, however, the complexity in segmenting the Report for the zoning standards was, for instance, on the development standards, there might be an area that would cross over more than one type of use or zoning category and she was not entirely certain if that would work and it might make it messier. Chair Whitaker stated they would leave that to Staff s discretion. If they were to end up voting in blocks, it would be nice to have some of the organization of the contents of the Staff Report in those blocks. Mr. Sheatz asked for clarification on the motion, he asked if on the adjacent properties he meant within 300' or immediately adjacent? Chair Whitaker stated adjacent in immediately touching as he understood the concerns that Ms. Pehoushek had brought up with respect to 300' or a 500' radius could potentially place them in a situation with a mailing of 2500 or 3000. In listening to the concerns regarding a residential property abutting a new commercially zoned property, and that there might not be noticing to those residents, was the intent of his motion. Commissioner Steiner stated with the continuance would the people who were present and had turned in cards to speak would they not be able to provide any input? Chair Whitaker stated they would be invited back to the next hearing date for the item. Assistant Community Development Director, Ed Knight stated Staff would not be able to continue the item to a date certain as Staff would need to not only create a list for the properties adjacent to the affected properties, but also the affected properties. It was a large area and encompassed quite a bit of the City and it would take weeks for Staff to put that together. It had taken about 4 to 5 weeks to create the initial list. Chair Whitaker stated there had been a motion with a second and to address Mr. Steiner's concern he asked the recording secretary to have the speaker cards included in the record and to have those individuals noticed as to the new hearing date. Planning Commission Meeting Speaker cards were received from: Jeff Frankel Michelle Carter Jim Potter Diana Zdenck Lyle Shelton Dennis Caldwell Dick Hamm October 4, 2010 Page 10 of 25 SECOND: Commissioner Merino AYES: Commissioners Cunningham, Imboden, Merino, Steiner and Whitaker NOES: None MOTION CARRIED Planning Commission Meeting October 4, 2010 Page 11 of 25 (5) CONDITIONAL USE PERMIT NO. 2783-10-WATSON'S DRUG STORE AND SODA FOUNTAIN This item was continued from the September 20, 2010 Planning Commission Meeting. A proposal to approve an Alcoholic Beverage Control Type 41 (On-Sale Beer and Wine - Eating Place) License in an existing 1,751 square foot restaurant area within the larger 4,454 square foot Watson's Drug and Soda Fountain building. LOCATION: 116 E. Chapman NOTE: This project is categorically exempt from the provisions of the California Environmental Quality Act (CEQA) per State CEQA Guidelines Section 15301 (Class 1 -Existing Facilities) because the project is within an existing restaurant. RECOMMENDED ACTION: Adopt Planning Commission Resolution No. 28-10 allowing an Alcoholic Beverage Control Type 41 License. Commissioner Imboden stated he would abstain on the item as he had a professional relationship with the property owner. Historic Preservation Planner, Dan Ryan presented a project overview consistent with the Staff Report. Chair Whitaker opened the item for any questions for Staff. Commissioner Merino asked Sergeant Peterson if the application before them would add an alcohol permit to the Old Towne area and was it the Police Department's position that it would be acceptable due to the reputation of the owner of the location. Sgt. Peterson stated the census tract had 8 allowed and 8 existing and there would be one additional added. Commissioner Cunningham stated Watson's had been in business prior to 1972 and he asked what the significance of 1972 was? Mr. Ryan stated it was based on the operation of the restaurant. Chair Whitaker invited the applicant to address the Commission. Scott Parker, address on file, stated he had owned Watson's for 40 years and he had been there quite a long time. Commissioner Imboden had made reference to parking issues downtown at a previous meeting and the only thing worse than having parking problems was having no parking problems. Back in 1972 they had no parking problems and the restaurant was open until 5:00 and closed on Sundays. As time progressed, their hours Planning Commission Meeting October 4, 2010 Page 12 of 25 increased. Due to the additional activity downtown, they had expanded their menu and patrons had requested a glass of wine or beer with their meals and they had requested the application in order to accommodate that request. It would all be served in individual glasses and he asked for the Commissioners' support in his request. Commissioner Steiner asked if Mr. Parker had reviewed the Conditions of Approval and if he had any issues with compliance of those Conditions? Mr. Parker stated no, they had discussed the 1:00 p.m. afternoon beverage service time and they had hoped to have their hours 11:00 a.m. to 9:00 p.m. Chair Whitaker stated he had not seen that requirement in the Conditions and the hours of alcohol sales could no longer be set by the City. He had read through the Conditions and there were hours of operation. Mr. Ryan stated the resolution had read that alcohol could be served between the hours of 1:00 p.m. and 9:00 p.m. and that should not have been included. It was included in the Police Department's memo. Chair Whitaker clarified that the ABC license would dictate the hours of alcohol sales. Commissioner Merino asked the applicant if the license would allow his restaurant to remain more competitive with the other restaurants in the area. Mr. Parker stated any business decision he made was to be successful and the answer to his question would be yes. Chair Whitaker brought the item back to the Commission for discussion or an action. Vice Chair Cunningham made a motion to adopt PC 28-10, approving CUP No. 2783-10- Watson's Drug Store and Soda Fountain, subject to the conditions contained in the Staff Report and noting that the item was categorically exempt from CEQA. SECOND: Commissioner Merino AYES: Commissioners Cunningham, Merino, Steiner and Whitaker NOES: None RECUSED: Commissioner Imboden MOTION CARRIED Planning Commission Meeting October 4, 2010 Page 13 of 25 (6) ORDINANCE AMENDING TITLE 17.17 OF THE ORANGE MUNICIPAL CODE -OLD TOWNE HISTORIC DISTRICT A draft Historic Multi-Family Structures Ordinance Amendment that contains modifications to Chapter 17.17 of the Orange Municipal Code to recognize historic multi-family properties as permitted uses in areas of the Historic District Zone (Old Towne Historic District) with a Low Density Residential General Plan land use designation and Single Family Residential zoning. LOCATION: Old Towne Historic District NOTE: The draft Ordinance Amendment is exempt from the provisions of the California Environmental Quality Act (CEQA) per State CEQA Guidelines Section 15305 (Class 5 -Minor Alterations in Land Use Limitations) because it involves a modification to Old Towne-wide standards rather than a specific development project. RECOMMENDED ACTION: Adopt Planning Commission Resolution No. 35-10 approving an Ordinance of the City Council amending Chapter 17.17 of the Orange Municipal Code to recognize Historic Multi-Family Structures as permitted uses in areas of the Historic District Zone with single family zoning. Principal Planner, Anna Pehoushek presented a project overview consistent with the Staff Report. Chair Whitaker opened the item for any questions to Staff. Commissioner Imboden stated on the map that was provided, there was individual parcels noted with diagonal hatching through them and were those the properties that Staff anticipated fell under the criteria of the Ordinance? Ms. Pehoushek stated that was correct. There was a revised map provided in the hot file that had a bright green overlay which noted where the General Plan Land Uses changed. Commissioner Imboden stated he had not seen that map. He asked what criteria had Staff used to establish which properties fell under the Ordinance? Ms. Pehoushek stated they were properties with two or more units that were listed as Historic Resources in the inventory as contributing structures. Commissioner Imboden stated there were several properties that he was familiar with from personal knowledge that had a historic single family residence and a garage that had been converted into a living unit, an historic garage that would be a contributing structure. He asked if that type of property qualified under the Ordinance. Planning Commission Meeting October 4, 2010 Page 14 of 25 Ms. Pehoushek stated it would depend if the accessory units were dwelling units that met the standard for in-law units. Those individual properties would need to be looked at. Commissioner Imboden stated there was no discretion used for a specific property that might have been developed initially or during the period of significance, but rather the number of current legal units that existed on a property and if they happened to occur on an historic building. Ms. Pehoushek stated that was correct. Staff would consider units that had been added onto an historic structure as one of the properties that would fall under the Ordinance. Commissioner Imboden stated there was a specific property that he was familiar with that had a single family historic residence in the front and a contemporary multi unit behind it that had been built within the last 20 years. Was it Staff's intention to include those types of properties? Ms. Pehoushek stated no, those would not be included. Commissioner Imboden stated he had not gone through the entire map, but there was at least one property that had been listed incorrectly. He stated 10 to 20 years ago someone converted an historic garage into an accessory unit, would those be included? Ms. Pehoushek stated the Ordinance was primarily to cover those structures that had been built as multi-family dwelling units at the time they were built. Those included the bungalow court, small scale apartment building and those types of structures. Commissioner Merino stated it was the historic nature of the multi-family unit that was built, and that needed to be the significance to fall within the purview of the Ordinance. It would not cover accessory structures that had been modified to put more people into them. Ms. Pehoushek stated that was correct. Chair Whitaker stated there were no public speakers and brought the item back to the Commission for further discussion or an action. Commissioner Imboden stated he was very much in support of the item before them and the report that had been provided by Staff. He had some concerns in reviewing some of the properties that he had been familiar with that he was certain had not been originally multi-family units. Both a comment and a question was how would those properties be vetted out; he assumed that the properties that had been identified, if the Ordinance was approved, would be granted the designation. Ms. Pehoushek stated the map was not an attachment to the Ordinance and the Ordinance language itself covered the determination. The map had been developed when there had been a question regarding the number of affected properties and those areas that had been Planning Commission Meeting October 4, 2010 Page 15 of 25 undergoing changes. The intent was not to go by the specific parcels on the map, but more so that when properties came up Staff would refer to the historic inventory in determining whether a property was covered under the Ordinance. Assistant Community Development Director, Ed Knight stated the actual language answered the question and might not solve what Commissioner Imboden was seeking. The Ordinance stated historic duplex or multi-family structures classified in the City's historic resources inventory contributors to the whole historic integrity. If someone had a historic structure and converted their historic garage into a second dwelling unit; depending on how that was done, it could be classified as a duplex or an historic structure. There was still protection for those properties under the Old Towne Preservation Standards. He believed the changes were aimed at duplexes and multi- family structures as they were built. Commissioner Imboden stated it was an item that had been initially brought forward during the General Plan discussion; he had not felt the intention was to include garage conversions in the Ordinance. Chair Whitaker stated that he had brought it up in the General Plan that those things that were designed and built as multi-family housing in their historic capacity would not receive a legal non-conforming status when down zoning occurred to R-1, that was what Mr. Knight was referring to. He felt that perhaps over time Staff needed to complete a specific inventory as a way to regulate properties. Commissioner Imboden asked if Staff would be open to language that indicated duplexes and multi-family structures that were historically developed as such or something to that affect as the manner in which it now read. that an historic duplex could be a single family home that had been turned into three rentals in the 1960's and that was not the intent of the Ordinance. Commissioner Merino stated what he was hearing was that the actual building was the key to whether it fell within the Ordinance; whether the inventory was conducted as part of the Ordinance or at a later date as the units were added. If the Ordinance read that a property was listed in the historic registry; that could resolve the issue. Ms. Pehoushek stated she felt they could add language where it read historic multi-family structures may remain, to add historic structures originally built as duplexes or multi- family structures. Chair Whitaker stated he felt that cleared it up. Commissioner Imboden made a motion to adopt PC 35-10, recommending approval to the City Council, of Ordinance Amendment Title 17.17 of the Municipal Code-Old Towne Historic District, subject to the conditions contained in the Staff Report and with the amendment to the Ordinance text as discussed with Staff; noting the item was categorically exempt from CEQA. Planning Commission Meeting October 4, 2010 Page 16 of 25 SECOND: Commissioner Cunningham AYES: Commissioners Cunningham, Imboden, Merino, Steiner and Whitaker NOES: None MOTION CARRIED Planning Commission Meeting October 4, 2010 Page 17 of 25 (7) CONDITIONAL USE PERMIT N0.2760-09 -THE DISTRICT LOUNGE A proposal to upgrade an Alcoholic Beverage Control Type 47 (On-Sale General - Restaurant) License to a Type 48 (On-Sale General -Bar) Alcoholic Beverage Control License for an existing restaurant/bar within the Plaza Historic District. LOCATION: 223 W. Chapman Avenue NOTE: The proposed project is categorically exempt from the provisions of the California Environmental Quality Act (CEQA) per State CEQA Guidelines Section 15301 (Class 1 -Existing Facilities) because the project consists of the operation and licensing of an existing private structure. RECOMMENDED ACTION: Adopt Planning Commission Resolution 30-10 denying a change from a Type 47 (On-Sale General -Restaurant) to a Type 48 (On- Sale General -Bar) Alcohol Beverage Control license for an existing restaurant/bar. Historic Preservation Planner, Dan Ryan presented a project overview consistent with the Staff Report. Chair Whitaker opened the item for any questions to Staff. Commissioner Merino stated all the statistics presented were fine, but as he understood the proposal, the applicant was not asking for a new license. It would not increase the amount of licenses in the area. Mr. Ryan stated that was correct. Commissioner Merino asked what was the difference between the applicant's ability to provide alcohol service between a Type 47 and Type 48 ABC license. Mr. Ryan stated the difference was the service of food that would accompany the ABC license. Commissioner Merino stated he had a question for Sergeant Peterson. He stated during the presentation Sgt. Peterson had shook his head regarding a statistic that was being read and he wanted to know if there was an issue with that information. Sgt. Peterson stated he wanted to correct the information read. There had not been a rape at the subject site. The victim was at the business; however, the rape had occurred elsewhere. Commissioner Cunningham asked on the calls for service to the site, had the need for Planning Commission Meeting October 4, 2010 Page 18 of 25 police response declined or increased since the new owner had taken over the site. Sgt. Peterson stated he was not certain about the number of calls for service prior to the current ownership of the site. Commissioner Cunningham stated the Staff Report noted that granting of the request would increase crime and calls for service and would diminish the quality of life in the area. There were a lot of statistics contained in the Staff Report; however, there was not anything that substantiated the claim that not requiring the site to serve food on a daily basis would increase crime. Sgt. Peterson stated the food service assisted with not having patrons drink as much, gave them something else to do other than drink. Commissioner Cunningham asked Mr. Ryan if the previous ownership had had the same requirement on their ABC license. Mr. Ryan stated yes, he believed that was the case. Commissioner Cunningham stated in the Staff Report on page 7, it read elimination of the availability of food would only serve the interest of the business and not the City of Orange and how would the elimination of food affect the interests of the City? Mr. Ryan stated based on the owner's information, 35% of sales were for alcohol; and he believed that it would increase substantially without the food service. Commissioner Cunningham stated he understood without food service the alcohol sales would be 100%; but that stood to reason if all they were selling was alcohol. Mr. Ryan stated in taking the lead from the Police Department as with the elimination of the restaurant portion of the business, the site would attract a different clientele and a patron might consume more alcohol without the availability of food. Commissioner Cunningham stated on page 7 regarding the 80 calls for service and there had been 119 Police Officers required; he asked if that was 119 individuals? Sgt. Peterson stated that was a total number of officers required to cover the 80 calls for service; some calls required more than one officer. Commissioner Steiner stated the Type 47 license was requiring food service, but the request for a change to a Type 48 would allow food service but not require it. Mr. Ryan stated that was correct. Commissioner Steiner stated if the business owner wanted to serve food as a promotional activity, on a particular day of the week, the change in the license type would allow him Planning Commission Meeting October 4, 2010 Page 19 of 25 that flexibility to serve or not serve food. Mr. Ryan stated he believed that to be true, however, the applicant had also indicated that there were issues in meeting the Health Department's requirements for food preparation and service. Commissioner Imboden stated he had understood that the Health Department issue was the primary basis for the request for the change in the ABC license type. He understood that there were problems with the kitchen and the applicant had problems in compliance with the Health Department and with an approval of the request, the food service would be eliminated. He asked if that was the intent of the applicant. Mr. Ryan stated that was his understanding and they could gain further information from the applicant. Commissioner Imboden stated in the Staff Report in the Police Department memo for 2008/2009 there were 38 calls for service, 57 DUI arrests, and later there were numbers given for the 2009/2010 reporting year and he asked if that was correct? Mr. Ryan stated that was correct. The stats had not been available for the other similar businesses in the area. There were 80 calls for service and a total of 70 DUI arrest for drinking for the period from November 8. Commissioner Merino stated on the previous application that an additional license was granted, the proprietor's reputation and standing in the community was considered in recommending approval. He asked if the applicant for the District Lounge had any less of a reputation or anything that Staff or the Police Department was concerned with that would give him any less of a good reputation in the community. Mr. Ryan stated there was no information that he had that would state that. Sgt. Peterson stated he had no information. Chair Whitaker stated a lot had been made of the difference between a Type 47 and Type 48 license; he asked what was required by the ABC licensing department as Staff had generally placed conditions on new permits for a percentage of food to alcohol sales. The existing Type 47 pre-dated that situation and he asked what was the requirement by ABC to be a bona fide eating establishment? Mr. Ryan stated he believed it was approximately 35% food service. Chair Whitaker invited the applicant to address the Commission. Mario Marovic, address on file, stated he was the owner of the corporation that owned the District Lounge in Old Towne Orange. He had present two retired ABC investigators to answer any questions that they might have if needed. Mr. Marovic presented a Planning Commission Meeting October 4, 2010 Page 20 of 25 PowerPoint and gave hand outs of his presentation to the Commissioners. In the handouts there was also a recommendation from the Fullerton Police Department. The request before them was to change the type of food service to an optional consumer driven from mandated food service. He was the owner of 6 Orange County restaurants and cocktail bars and a second generation restaurateur. He was raised in Orange and he attended Villa Park High School, class of 1991. He attended USC and graduated with a BS in Business with an emphasis in entrepreneuring. His senior business plan at USC was to open up a restaurant bar which he eventually had done. He returned to USC to receive his Masters degree. He had a website that had his 6 locations on it that ranged from fine dining steak house in Corona Del Mar, an Irish pub in Newport Beach, fine dining Mexican food in Fullerton and he also owned two other Type 47 licenses. He was in the business of buying businesses to make them better and created a more desirable clientele. He had done that with Los Vacitos and with all 6 locations he owned. When he took the businesses over things got better, statistically. Mr. Marovic stated he had always dreamed of having a location in Orange and it meant a lot to his family. He went through the remainder of his PowerPoint presentation. He stated that the difference between a Type 47 and a Type 48 license at the District Lounge, was that he already had a full liquor license that would not change, he had an entertainment permit and that would not change, he had operating hours unti12:00 a.m. and he was not asking for that, he had a kitchen and he would keep the kitchen, food service was mandatory with a Type 47 and that would be the only change, that food would be optional. If he went to a Type 47 license, he would implement a security plan with the CUP, to insure the long term prosperity of his location and it would be good for the residents around him. All the security personnel would be Guard Card certified and he would require a minimum of one security staff per 50 patrons, he would have headsets for them to maintain communication and his plan was submitted with his CUP application. He would put an upscale drink menu into place, with boutique wines, craft beers and gourmet drinks and use his years of restaurant and bar experience to differentiate himself from other venues in Orange. Orange had some great new restaurants and those were businesses that were built to be restaurants and he was not able to compete on that level. He wanted an upscale lounge with some food service and not a bona fide eating establishment. His PowerPoint presentation included crime statistics and included the details of his security plan and a recommendation from a retired Fullerton Police Officer. Commissioner Merino stated the food service that was provided although caused some difficulty, there were a lot of the members of the community that liked what the establishment offered; such as Taco Tuesday. He asked if there was a demand for a popular food service event, would Mr. Marovic make an attempt to provide that. Mr. Marovic stated he would provide food on a customer requested basis and it would be something that patrons wanted and not a requirement to serve a diverse menu that he was not able to maintain. Commissioner Cunningham stated he had met with the applicant last week. He asked that despite the cold storage and the other factors, how would the applicant provide Planning Commission Meeting limited food service? October 4, 2010 Page 21 of 25 Mr. Marovic stated he was fortunate to have a very large cold and dry storage facility at the Matador Cantina in downtown Fullerton. He would work with that location and if food would be offered, he would ensure that it would get to the site. To have food service everyday with the limited facilities of the District Lounge created waste and difficulties. Commissioner Cunningham asked what would be the alternative if he was denied the CUP. Mr. Marovic stated he would continue to struggle, continue to put out an insufficient product and have customers wait for inadequate service. The Health Department specifically stated that he would not be able to use offsite long term cold storage. He could bring it from another facility on an occasional basis. Commissioner Steiner asked if he was required by the ABC license to have a security plan. Mr. Marovic stated no, it was not required and something he did as a responsible business owner. Commissioner Imboden stated for clarification he was not certain of the kitchen situation and he asked what the situation was currently and what would change with the proposed CUP? Mr. Marovic stated currently he had no dishwasher, remote storage and the inability to bring food out efficiently due to the size of the kitchen. With the proposed CUP, he would have fewer items on the menu and serve less of it, he would do more pairings such as Tuesdays to keep Taco Tuesdays and on Monday maybe just have cheese platters, items that would be easier to prepare. Commissioner Imboden stated it was his understanding that the current license was 65% food and 35% alcohol. Mr. Marovic stated it was the opposite. It was skewed because of the food promotions, on Tuesday they sold 1,000 tacos and the numbers were inflated. Commissioner Imboden stated going back to the applicant's comment about seeing no change in the amount of alcohol, would the amount of alcohol increase in order to keep the gross sales at the same rate as they were currently. Mr. Marovic stated the overhead to serve the amount of food he was serving was costing him more and to keep the liquor sales the same his net profit would go up. Planning Commission Meeting October 4, 2010 Page 22 of 25 Chair Whitaker stated he was unclear as the Type 47 ABC license requirement in regard to limited food sales. Los Vacitos had a reputation for not serving much of a food variety and it was very limited and Mr. Marovic had stated he would serve a very limited menu. Was the change to a Type 48 really required, or could the site maintain the Type 47 with a limited menu? Retired ABC Investigator, Tony Pacheco, approached the dais to answer that question. He was currently retired and he worked for ABC for 17 year. The Type 47 required that the premise operate as a bona fide eating establishment and they would be required to serve full course meals, have a kitchen facility to prepare the meals and that meal service would be available during regular meal hours. There was not a percentage of food service required. A figure always came up that more than 50% should be in the service of food and that only came up when there was a violation in the ABC license and when there was an audit. The audit would include a comparison of invoices. A premise that sold more alcohol than food would be determined to be out of compliance with the requirement of a Type 47 ABC license. Commissioner Imboden asked how was a full course meal defined; there were certainly a number of Type 47 ABC licenses that belonged to pizza parlors where a patron could get a slice of pizza and a beer and he would not consider that a full course meal? Mr. Pacheco stated locations that sold pizza and alcohol were considered specialty restaurants and carried Type 41 ABC licenses and would consider allowances for those types of venues. With the District Lounge and the license they carried, the requirement was for service of full course meals. ABC would not spell out what a full course meal consisted of. Under Section 23028 of the Business and Professions Code they would be required to serve salads, steaks, entrees and usually by reviewing a menu of the location, it could be determined whether full course meals were being offered. Chair Whitaker asked if the location went to a happy hour style menu, or an appetizer only menu would that qualify for a Type 471icense? Mr. Pacheco stated no, it would not qualify. Commissioner Cunningham stated for a bona fide eating establishment would there be a requirement for lunch and dinner service; he was gaining from the applicant that he would want to just serve some specialty items in the evening. For example, if just hamburgers were served on Tuesdays, he asked if that would be considered meeting the requirement of a Type 471icense? Mr. Pacheco stated no. Chair Whitaker opened the hearing for Public Comment. Wil Dee, address on file, stated he was from Haven Gastropub in Orange and he had been in the restaurant business for about 14 years and had known Mr. Marovic for about 10 of Planning Commission Meeting October 4, 2010 Page 23 of 25 those years. He had seen the changes at District Lounge from what it was before to the great transformation. He had knowledge of his other businesses; both with the same proposed Type 48 licenses and he operated in an exemplary manner. Mr. Marovic had been a great help to him in getting Haven opened and provided him with industry professionals to get their licensing in place. Understanding the constraints of his kitchen, he supported the request for a license change. Anthony Domazet, address on file, stated he supported the license change and he felt there would be no impact on his residence or his neighbors and he was the closest property to the District Lounge. Trey Menz, address on file, stated he was a long term resident of Orange and actually had a property in Old Towne. He worked for Islands Restaurant and had been with them for 22 years and Mr. Marovic had been a good friend of his dating back to their high school days. He was very familiar with Old Towne and what had occurred at Los Vacitos prior to Mr. Marovic coming in. He supported the applicant's request. Martin Wright, address on file, stated he had a business directly across from the District Lounge and he supported Mr. Marovic. Since the site had been revamped and opened as the District Lounge, things had significantly improved. Commissioner Imboden thanked the applicant for answering questions that were helpful in clarifying the issues; one thing that stood out for him was that the applicant, with the proposal before them, had proposed a security plan. He asked if that security plan currently existed. Mr. Marovic stated it was a plan that existed and they would tweak it and make it permanent. Commissioner Imboden stated in the statistics for 2008/2009, there were 38 calls for service and 57 DUI arrests, in the subsequent year the service calls more than doubled and 78 on DUI arrests and he was not convinced that the security plan he had in place was working as the numbers were increasing. Was there something that the applicant could offer to provide a comfort level to the City that the increases would not continue? Mr. Marovic stated first off on the east side of his property there was a parking lot for Paul's Cocktails that abutted his property and there were over a dozen service calls that were listed as District Lounge, secondly if someone was pulled over for a DUI and they were asked where had they come from and the District Lounge was identified, the person pulled over was not asked if they had water there, one drink or two and he had not seen the validity of empirical data from a person who was being pulled over as that data was not correct. Commissioner Imboden stated even if the data was not 100% correct, they could not blame it all on other sites. Planning Commission Meeting October 4, 2010 Page 24 of 25 Mr. Marovic stated he would be pleased to change his security plan in any manner possible and he had been doing more than other locations in Old Towne Orange and he would do whatever it took. He would sit down with Sergeant Peterson. Chair Whitaker brought the item back to the Commission for further discussion or an action. Commissioner Merino stated he would support the application, simply because the issues before them would not change the alcohol service. The applicant had an alcohol license that would remain the same from an alcohol service perspective. The benefit was that by hearing what they were hearing currently and with the security plan that was being offered up, there would be improvement at the site and a mitigation of issues before them. It was an opportunity for a better situation. Mr. Marovic with a great reputation, as good of a reputation as the earlier application, was asking for support in improving his business situation, and although the Commission was not responsible for improving anyone's business, if the fact that on a whole that could be done without any detriment to the community, he was supportive of that. Commissioner Cunningham stated that he supported the application and echoed Commissioner Merino's comments. The applicant had shown himself to be a good businessman and had a sterling reputation and no problems with ABC. It was actually good to see other merchants in the District in support of the applicant. In reviewing the calls for service, it had actually been flat, there were the same amount in the recent 10 month period from the previous year. The two memorandums back to back were a bit confusing, but when parsed out and added up there was not a huge increase. He stated he wanted Staff to be a bit more cautious with information included in the Staff Report, he was disturbed by the inclusion of an erroneous report of a rape in a public document, it was in public circulation and on the City's website and it was injurious to the reputation of a merchant who had taken great care over the years with his reputation. Commissioner Steiner stated if the direction of the Planning Commission was to approve the resolution and grant the request, he asked when would the Conditions of Approval return. Chair Whitaker stated when there was not a draft resolution before them, Staff would be directed to create conditions to review by the Planning Commission at a subsequent hearing. His feeling on the application was that the issues needed to be balanced on whether there would be an increased burden on the taxpayers and the Police Department by approving the applicant's request, or whether the business would be harmed. He had not found in the testimony that there would be a direct causal impact other than the current impact that already existed and he was a bit concerned with the statistics presented and they had all the calls for the District from 2008 to 2010 including DUIs, but they had only received an update on calls for service for O'Hare's and Paul's and not the DUIs that he was able to find in the report. There were some apple to orange comparisons and he found that basically the kitchen created a difficult situation in providing a full menu and he found the testimony from the former ABC investigators Planning Commission Meeting October 4, 2010 Page 25 of 25 persuasive in regard to what constituted the amount of food required for a Type 47, and if there was a limited menu the site would not be in compliance. He would support the business where it was at and it had not appeared that there would be an increase in alcohol sales, but a measure to reduce costs. He would support the measure. Commissioner Merino made a motion to adopt PC 30-0, approving CUP No. 2760-09- The District Lounge, subject to the conditions contained in the Staff Report, noting that the item was categorically exempt from CEQA and requesting that Staff provide a resolution with the Conditions of Approval back to the Planning Commission; which would include a security plan that was acceptable to the Orange Police Department. SECOND: Commissioner Steiner AYES: Commissioners Cunningham, Imboden, Merino, Steiner and Whitaker NOES: None MOTION CARRIED (8) ADJOURNMENT: Commissioner Merino made a motion to adjourn to the next regular scheduled Planning Commission Meeting on October 18, 2010. SECOND: Commissioner Cunningham AYES: Commissioners Cunningham, Imboden, Merino, Steiner and Whitaker NOES: None MOTION CARRIED Meeting Adjourned @ 9:00 p.m.