Planning Commission Meeting

MINUTES PLANNING COMMISSION Tuesday, August 28, 2012 4:00 pm – 5:30 pm 7:00 pm – 11:00 pm FEW MEMORIAL HALL OF RECORDS COUNCIL CHAMBERS MONTEREY, CALIFORNIA Commissioners Present: McCrone, Davis (Arrived at 4:08 pm), Osorio, Stocker, Reed, Widmar Commissioners Absent: Garden Staff Members Present: Chief of Planning, Engineering, and Environmental Compliance Rerig, Principal Planner Cole, Senior Associate Planner Bennett, Recording Secretary Hanes The following staff arrived at 7:00 pm for the evening session: City Attorney Davi, Traffic Engineer Deal, Police Lieutenant Jackson, Deputy Police Chief Aspland CALL TO ORDER Vice Chair McCrone called the meeting to order at 4:02 pm. CONSENT ITEMS On a motion by Commissioner Stocker, seconded by Commissioner Widmar, and carried by the following vote, the Planning Commission approved the CONSENT ITEMS: AYES: 4 COMMISSIONERS: McCrone, Stocker, Reed, Widmar NOES: 0 COMMISSIONERS: None ABSENT: 2 COMMISSIONERS: Garden, Davis ABSTAIN: 1 COMMISSIONERS: Osorio RECUSED: 0 COMMISSIONERS: None Approval of Minutes 1. July 24, 2012 ACTION: Approved as submitted. ***End of Consent Agenda*** PUBLIC COMMENTS None. PUBLIC HEARING 2. Consider 211 Hoffman Avenue; Use Permit 12-015 to Exceed 50% Lot Coverage (73% proposed) and 25’ Height Limit (29’-7” proposed); Applicant/Owner EGM Investors LLC; C-2 Zoning District; Exempt from CEQA Requirements.  Planning Commission Minutes Tuesday, August 28, 2012 ACTION: Adopted a Resolution approving Use Permit 12-015 to exceed 50% lot coverage and 25’ height limit and adopt a resolution approving the associated Employee Parking Plan. Staff Presentation and Commission Questions: Kim Cole presented the Agenda Report and answered Commissioners' questions. Applicant: Eric Miller, Architect, said he would like to proceed with the project as soon as possible. In answer to Commissioner Davis' question, Mr. Miller said a building will still be built on the other part of the property. Due to loan issues, the project had to be split into two. Public Comments: None. Commission Comments: Commissioner Stocker made a motion to adopt a Resolution approving Use Permit 12- 015 to exceed 50% lot coverage and 25' height limit and adopt a Resolution approving the associated Employee Parking Plan. Commissioner Davis seconded the motion. On a motion by Commissioner Stocker, seconded by Commissioner Davis, and carried by the following vote, the Planning Commission adopted a Resolution approving Use Permit 12-015 to exceed 50% lot coverage and 25’ height limit and adopt a resolution approving the associated Employee Parking Plan: AYES: 6 COMMISSIONERS: McCrone, Davis, Osorio, Stocker, Reed, Widmar NOES: 0 COMMISSIONERS: None ABSENT: 1 COMMISSIONERS: Garden ABSTAIN: 0 COMMISSIONERS: None RECUSED: 0 COMMISSIONERS: None Vice Chair McCrone called for a recess at 4:18 pm. Reconvened at 7:02 pm. CONTINUED PUBLIC COMMENTS None. PUBLIC HEARING 3. Consider 1410 Del Monte Center; Application 12-214 to Re-open Use Permit 99-149; Applicant Jill Vivanco; Owner Pacific Oceanside Holdings, LLP; C-2-SC Zoning District; Exempt from CEQA Requirement. ACTION: Adopted a Resolution approving revisions to Use Permit 99-149 for the employee parking program and require the holiday shuttle program operate for three days in 2012. Planning Commission Meeting Minutes Tuesday, August 28, 2012 2  Planning Commission Minutes Tuesday, August 28, 2012 Staff Presentation and Commission Questions: Todd Bennett and Rich Deal presented the Agenda Report and answered Commissioners Questions. Applicant: Jill Vivanco was present. Public Comments: Ed Smith commended staff and the Del Monte Center for addressing the issues and said this is an excellent example of Government collaborating with a large shopping center so there is no impact to the surrounding neighborhood. Commission Comments: Commissioner Stocker concurred with Mr. Smith that staff has done a significant amount of valuable research for this project and made a motion to adopt a Resolution approving revisions to Use Permit 99-149 for the employee parking program and require the Holiday Shuttle Program operate for three days in 2012. Commissioner Widmar seconded the motion. Commissioner McCrone made mention of a letter submitted by Rick Heuer regarding parking numbers and asked staff if they knew Mr. Heuer’s position on the matter of the shuttle service at Del Monte Center. Mr. Bennett said staff is not aware of Mr. Heuer's position on the topic. On a motion by Commissioner Stocker, seconded by Commissioner Widmar, and carried by the following vote, the Planning Commission adopted a Resolution approving revisions to Use Permit 99-149 for the employee parking program and require the holiday shuttle program operate for three days in 2012: AYES: 6 COMMISSIONERS: McCrone, Davis, Osorio, Stocker, Reed, Widmar NOES: 0 COMMISSIONERS: None ABSENT: 1 COMMISSIONERS: Garden ABSTAIN: 0 COMMISSIONERS: None RECUSED: 0 COMMISSIONERS: None 4. Reconsider July 10, 2012 Decision to Revise Conditions of Approval for Use Permit 04-261 for 180 E. Franklin Street; Applicant Dennis Barwick, Owner Bruno/Marotta Franklin Street; Alternatively, Revoke Use Permit 04-261 for 180 E. Franklin Street, Applicant City of Monterey, Owner Bruno/Marotta Franklin Street; PC Zoning District; Exempt from CEQA Requirements. ACTION: Adopted a Resolution incorporating Staff's recommended modifications to Use Permit 04-261 Conditions of Approval with an earlier closing time and clarification of condition 15 regarding dress code. Staff Presentation and Commission Questions: Todd Bennett, Lt. Jackson and Assistant Police Chief Aspland presented the Agenda Report and along with Kim Cole and City Attorney Davi, answered the Commissioner's Questions. Planning Commission Meeting Minutes Tuesday, August 28, 2012 3 Planning Commission Minutes Tuesday, August 28, 2012 Applicant: Dennis Barwick said he has complied with every request and suggestion from City staff to make changes to the business that has cost approximately $60,000.00. He informed the Commission that he has received a notice from his landlord that he is being evicted as a result of a letter requesting the eviction action from the City Manager. Mr. Barwick said he was surprised such an action was taking place because he said he had a previous discussion with staff where he was informed that a nuisance would not be pursued on the business. He made mention of the incident on August 5, 2012, stating that the business was closed when the action occurred and he did not feel The Luxe should be held responsible. He also said he had provided the Monterey Police Department with the video surveillance from the business for August 5, 2012 which shows no evidence The Luxe was involved in the incident and requested the Commission have access to reviewing the video. Mr. Barwick admitted to an altercation occurring between two females, one of which was under aged, on the same date, and said there was nothing his security staff could do to prevent the altercation. He also commented on the amount of time the Monterey Police are called to The Luxe establishment stating that the business is open for five hours a day, per week, and his tracking has indicated that the frequency of visits has lessened since he began attempts to improve the business in June, 2012. He gave a comparison from his research of the Police Logs from June 1, 2012 to August 14, 2012 of other similar establishments in the surrounding area that had issues also requiring Police involvement. Mr. Barwick requested that the Commission carefully consider their decision and expressed concern that the restrictions presented would put all three of his businesses located at the property site out of business. In answer to Commissioner Osorio’s question, he said he would accept the Planning Commission decision made on July 10, 2012 and reduce the closing time by a half an hour and have a six month review to allow him an opportunity to improve the business with the changes that have already been implemented. In answer to Commissioner Reed’s question, Mr. Barwick said the father of the female involved in the August 5, 2012 incident was never denied access to the Monterey Police and he welcomes the visits from the Monterey Police. In answer to Commissioner Widmar’s questions, he said he was present for the August 5, 2012 incident and the statement that a gang member claimed The Luxe was “Norteno Territory” was never said. In answer to Commissioner McCrone’s question he said neither he nor his security staff heard any gang related slogans exchanged during the altercation between the two females on August 5, 2012. Commissioner McCrone clarified to Mr. Barwick that the decision being made was based on The Luxe business only and was not pertaining to the two other businesses he owned in the building. In answer to Commissioner Widmar’s question, he said the Monterey Police have been provided with the video surveillance they had been waiting for that was being pulled from an old security system. Public Comments: Matt Armstrong suggested a range of hours be presented as an option rather than the most and least extreme. Mike Marotta said he and his partners own the business and they concur with the City’s decisions regarding the business. He said a discussion took place with Mr. Barwick regarding their concerns and an agreement was made that if the business continued to have issues, Mr. Barwick agreed to vacate the premises. Mr. Marotta said he and his partners do not want a business occupying their property that continues to have issues. Planning Commission Meeting Minutes Tuesday, August 28, 2012 4 Planning Commission Minutes Tuesday, August 28, 2012 Commission Comments: Lt. Jackson commented on the incident that happened on August 5, 2012 involving two females, one of which was 17, and said a 17 year old should not have been allowed in a business that has a 21 and over requirement. With good business practices, this could have been avoided. In answer to Commissioner McCrone’s question he said an Identification (ID) Scanner would not have necessarily recognized the ID as fake if it was a valid ID belonging to another person. In answer to Commissioner Davis’ questions, Lt. Jackson said information was gathered on the night of the incident through interviews with the people present and it is the responsibility of the business owner to make appropriate judgment as to when the Monterey Police should become involved in an incident. Gang related issues should always include the Monterey Police. Commissioner Davis expressed concern that the incidents continue to occur at The Luxe and require Police involvement. It reduces the protection level of the rest of Monterey. Commissioner Widmar asked Lt. Jackson if gang activity is more prevalent at The Luxe than any other similar establishment around the City. Lt. Jackson said that over the past several months, gang activity has become more prevalent at The Luxe. Commissioner Widmar asked for clarification pertaining to the change of hours and if Monterey Police thought that closing the business early would affect attendance of the gang members. Police Chief Aspland said it is the goal of the City and Monterey Police to create a safe environment for people to dance, drink and enjoy themselves. Vice Chair McCrone recognized that Mr. Barwick wanted to speak again and asked the City Attorney for clarification on allowing the applicant to speak when both the Applicant and Public Comment section had been closed. City Attorney Davi said the Commission could choose to allow Mr. Barwick to speak again, but would have to re-open the Public Hearing. Commissioner Stocker made a motion to not re-open the Public Hearing. Commissioner Davis seconded the motion. On a motion by Commissioner Stocker, seconded by Commissioner Davis, and carried by the following vote, the Planning Commission denied allowing the Public Hearing to be re-opened to allow Mr. Barwick to comment: AYES: 4 COMMISSIONERS: Davis, Stocker, Reed, Widmar NOES: 2 COMMISSIONERS: McCrone, Osorio ABSENT: 1 COMMISSIONERS: Garden ABSTAIN: 0 COMMISSIONERS: None RECUSED: 0 COMMISSIONERS: None Commission Comments: (Continued) Commissioner McCrone asked staff to respond to Mr. Armstrong’s question regarding staff’s recommendations. Mr. Bennett said staff provides the Commission with a recommendation, but the Commission is at liberty to accept, not accept or change the recommendation. Providing all possible recommendations would result in a very lengthy Agenda Report. Commissioner Osorio said the City of Monterey is embarking on remaking the Downtown area and expressed concern that the hours proposed by staff are too stringent and may Planning Commission Meeting Minutes Tuesday, August 28, 2012 5 Planning Commission Minutes Tuesday, August 28, 2012 result in the business closing down. He said the Commission should consider if closing the business is the intended direction or if the owner should be allowed an opportunity to improve the business just as other establishments with similar issues were allowed. He also suggested a change in the suggested hours of operation to close at midnight, stop alcohol sales and music at 11:00 pm. Commissioner Widmar highlighted the difference between the situation with The Luxe and the Mucky Duck that had similar issue in the past, indicating that the two situations are very different. The Mucky Duck is managed by new owners that re-opened the business with changes. The Luxe has the same owner trying to improve the problems with the current business. He recognized that Mr. Barwick had made efforts to make the corrections needed to make the business safe, but expressed concern that the City cannot have a business in the Downtown area that appears to be directly related to violent crimes. He said the hours should be modified to eliminate the possibility for additional nuisance issues at the business. Commissioner Stocker said it is the responsibility of the Commission to revoke or restrict Use Permits when necessary. This action could potentially result in a business shutting down, in order to promote a safe environment and successful businesses in the City of Monterey. Commissioner Davis concurred with Commissioner Stocker and said he supports staff’s recommendation. Commissioner Reed said his decision in July 2012 was based on the information available at the time but the issues are continuing to occur at the business and have escalated in violence. He said that although the business owner is not claiming responsibility for the incident on August 5, 2012, the business is attracting the wrong crowd and bringing gang activity to the City. Commissioner McCrone clarified that the only item the Commission is making a decision on is The Luxe. He commented on a statement made by Mr. Barwick regarding an agreement he said was made in June, 2012, with staff that a nuisance would not be pursued. He said that due to the issues that have continued to occur, staff’s recommendation has changed. He made a motion to adopt a Resolution incorporating staff's recommended modifications to Use Permit 04-261 Conditions of Approval with an earlier closing time and clarification of condition 15 regarding Dress Code to reflect the agreement made between Monterey Police and The Luxe. Commissioner Reed seconded the motion. Commissioner Osorio clarified his earlier comment indicating that the Commission’s role is to be positive and encourage businesses that aid in the viability of the downtown. Commissioner Widmar said the particular business model that Mr. Barwick has tried to make work at the business is not working for anyone and by adopting the staff recommended Resolution, the owner might have to re-establish his business plan and change the business completely. He also said he will be supporting the motion. Commissioner McCrone reminded the Commission that a similar restriction was placed on the Blue Fin until they were able to change the business model and improve the business which was achieved with success. Planning Commission Meeting Minutes Tuesday, August 28, 2012 6  Planning Commission Minutes Tuesday, August 28, 2012 On a motion by Commissioner McCrone, seconded by Commissioner Reed, and carried by the following vote, the Planning Commission adopted a Resolution incorporating Staff's recommended modifications to Use Permit 04-261 Conditions of Approval with an earlier closing time and clarrification of condition 15 regarding dress code.: AYES: 6 COMMISSIONERS: McCrone, Davis, Osorio, Stocker, Reed, Widmar NOES: 0 COMMISSIONERS: None ABSENT: 1 COMMISSIONERS: Garden ABSTAIN: 0 COMMISSIONERS: None RECUSED: 0 COMMISSIONERS: None COMMISSIONERS COMMENTS 5. Response to Commissioners’ Comments at the July 24, 2012 Meeting. Report received. New Comments:  Commissioner Stocker said he attended the Administrative Appeals Board meeting. The new Americans with Disability Act (ADA) upgrades to the Council Chambers were adopted. He informed the Commission that appropriate recommendations and upgrades will begin soon.  Commissioner McCrone gave the Commission a brief update on the Waterfront Subcommittee action indicating that a proposal was approved for a Request for Bids (RFPs) for the Passenger Depot that generated five proposals received. He said another meeting was held to allow the proposers to present and the subcommittee is now waiting for an appraisal and other decisions to be made to be able to formulate a recommendation to the City Council. He also asked staff why the Parking Superintendent is not revoking parking permits for the vehicles that are occupying the spaces in the parking lot in front of the Passenger Depot. Ms. Cole made reference to the procedures indicated in a letter submitted by the Parking Superintendent that detail the permit process. Commissioner McCrone requested to have the item agendized at a future Commission meeting. INFORMATIONAL REPORTS & STAFF COMMENTS 6. Planning Office Update Report received and reviewed. No new comments. ADJOURNMENT There being no further business, the meeting adjourned at 9:00 pm. Planning Commission Meeting Minutes Tuesday, August 28, 2012 7 Planning Commission Minutes Tuesday, August 28, 2012 Respectfully Submitted, Approved, Kimberly Cole, AICP Chair Managing Principal Planner Planning Commission Planning Commission Meeting Minutes Tuesday, August 28, 2012 8