The planning commission hearing to approve a conditional use permit (CUP) for the restaurants replacing the Florentine establishments [at the corner of Harbor and Commonwealth] concluded with the commissioners adopting a resolution to ask the City Council to revoke an encroachment permit and restore the sidewalk.  The CUP was also approved in the February 16 session. The permit was for a structure referred to as “the bump,” a building addition occupying a six-foot-wide swath of public sidewalk on the north side of Commonwealth Avenue east of Harbor Boulevard since 2003.

The ‘bump’ is an encroachment on a six-foot-wide swath of public sidewalk on the north side of Commonwealth along the restaurant formerly known as Florentines. It is currently being remodeled for a new bar/restaurant.

The original agreement for this was written on the City form for “Outdoor Dining Encroachment Agreement” and signed by Tony Florentine and F. Paul Dudley as Acting Director of Redevelopment June 6, 2003. That document gave permission for “Enclosed addition to building.”  The City Council had given permission to Florentine for just a patio on May 3, 2003. The last amendment to this agreement was made in 2017, according to Greg Pfost, interim community development director.

Commission chair Douglas Cox questioned Associate Planner Christine Hernandez about the outdoor dining patio sited in the pedestrian walkway as an adjunct to the restaurants.  He and other commissioners were concerned that pedestrian access would be impeded. Hernandez said the outdoor dining space had already been approved in a “minor site plan hearing” and that the space met all “minimum requirements.”

Applicant and owner of Mickey’s Irish Pub and the High Horse Saloon, 100 and 102-104 North Harbor Boulevard Mario Marovic, said every City department had been consulted regarding the patio.  “There were multiple meetings…design review…civil engineers.  Light poles were moved at my expense.  It will be safer.”  He said planning this outdoor dining area started at the beginning of 2021.

Commissioner Arnel Dino asked who could cancel an encroachment permit. “The City Council,” City Attorney Scott Porter said.

Commissioner Peter Gambino, supporting restoration of the public sidewalk, said, “Look at the rest of the block, the set-backs, the shrubbery. This should have been addressed by staff.”  He cited information provided to the commissioners by this reporter. That information included a copy of the original agreement between Florentine and Dudley. Gambino noted that the Florentine agreement stated it was “not transferable.”

Chairman Cox said, “What you see today was not approved; it was a purely political decision by those elected to let it stand. The intent was never to have it enclosed.  There’s opportunity here,” he added.  “I think the City Council doesn’t know about this.  There is nothing in the bump-out now, everything has been removed.  We need to take action, the staff needs to warn the City Council that this is an issue, and they can decide to restore the sidewalk.” Pfost said the City can take back the encroachment for specified reasons.

Commissioner Wayne Carvalho also asked, regarding “the bump,” “How come this never came up with the staff?” He questioned the patio space as to clearance for the doors and pedestrian access. He noted the similar Mulberry Street outdoor dining encroachment in a pedestrian walkway that had been decided by the planning commission.   Hernandez said all guidelines were met.  Carvalho asked about barriers. Hernandez said yes, there may be a wall there, concrete or wrought iron.  She said that the outdoor dining patio application “went through all departments” and that all departments were represented at all meetings regarding the patio extension including Public Works. “We all reviewed the proposal. It meets the minimum requirements.”

“That’s all that’s required, four feet for pedestrians?” Carvalho said, referring to Americans with Disabilities Act (ADA) requirements. “That’s all, four feet,” Hernandez said.  “Public Works and Traffic reviewed this.”

In public comment, Jane Reifer questioned whether it makes sense to hand over public right-of-way for private profit.  She pointed out that the area provides pedestrian access from Commonwealth Avenue all the way to Wilshire Avenue. Reifer said that use of that pedestrian pathway should have been reviewed by the Active Transportation Commission, which deals with pedestrian issues.

Commissioner Gambino asked, “Public Works–they did not ask about restoring Commonwealth Avenue? Did the city engineer?”

Hernandez said, “The people under the city engineer, who has been here one year, were present at the meetings.”

Applicant Marovic was given three opportunities to address the commission and to respond to the various comments. “I didn’t have to come here tonight,” Marovic said.  “I’m only here for the updated CUP.  The plans (for the patio dining) were approved, the furniture is in place.  I have invested a lot of time and money.  Being a slum lord is profitable.”  He cited the various repairs he was making to roof and utilities.  “We are investing because we love Fullerton.  We want to have a positive impact on the community.”

An appeal of the commission’s grant of the CUP was filed February 25 by Ken Bane, Matt Leslie, Jane Rands, Jane Reifer, and this reporter.