From: City Clerk's Office
Sent: October 12, 2026 3:50 PM
To: Mulvey, Jennifer
Subject: FW: Agenda Item No. 16 (October 13, 2026) — Resolution No. 2026-91 — Appeal of Planning Commission Resolution No. PC2026-027 (Five Crowns Restaurant, 3801 East Coast Highway, PA2023-0202): Appellants’ Written Response to the Staff Report and Objections...
Attachments: 261013 Appellants Resp and Obj.PDF; 261013 Stmt Kenneth Catanzarite.PDF From: Becky Phillips <[email protected]>
Sent: Monday, October 12, 2026 3:49:03 PM (UTC-08:00) Pacific Time (US & Canada) To: City Clerk's Office <[email protected]>; Dept - City Council <[email protected]>; Shumway, Lena <[email protected]>; Harp, Aaron <[email protected]>; Montoya, Jose <[email protected]>; Jurjis, Seimone <[email protected]>; Murray, John <[email protected]>; Westmoreland, Liz <[email protected]>; Ginetta Giovinco <[email protected]>; Schuchert, Nicholas J. <[email protected]>; Lee, Chloe Ann <[email protected]> Cc: Kenneth Catanzarite <[email protected]>
Subject: Agenda Item No. 16 (October 13, 2026) — Resolution No. 2026-91 — Appeal of Planning Commission Resolution No. PC2026-027 (Five Crowns Restaurant, 3801 East Coast Highway, PA2023- 0202): Appellants’ Written Response to the Staff Report and Objections to Pro [EXTERNAL EMAIL] DO NOT CLICK links or attachments unless you recognize the sender and know the content is safe. Report phish using the Phish Alert Button above.
To Whom it May Concern,
Pursuant to the City of Newport Beach’s Agendas & Minutes page of their website, attached please find correspondence from Mr. Catanzarite dated today, October 12, 2026, which contains written comments in advance of the City Council meeting set for tomorrow, October 13, 2026 at 4:00 p.m. Mr.
Catanzarite’s statement is also attached hereto; he asks that both be included in the record for Agenda Item No. 16.
Should you have any issues opening or viewing the attachment, please advise.
Thank you.
Very truly yours,
Becky Phillips
Executive Legal Assistant
Catanzarite Law Corporation
2331 West Lincoln Avenue
Anaheim, CA 92801
Direct Dial: (714) 678-2108
Direct Fax: (714) 399-0589
Office Phone: (714) 520-5544
Office Fax: (714) 520-0680
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CATANZARITE LAW CORPORATION
Attorneys & Counselors at Law
2331 West Lincoln Avenue, Anaheim, California 92801
Tel. (714) 520-5544 [ Fax (714) 520-0680
Kenneth J. Catanzarite I Direct Dial (714) 678-2100 I [email protected] October 13, 2026
Via Email - For Distribution to the City Council and Inclusion in the Record for Agenda Item No. 16
Mayor Lauren Kleiman and Members of the City Council
City of Newport Beach, c/o City Clerk Lena Shumway
100 Civic Center Drive, Newport Beach, California 92660 [email protected]
[email protected]
[email protected]
Re: Agenda Item No. 16 (October 13, 2026) - Resolution No. 2026-91 - Appeal of Planning Commission Resolution No. PC2026-027 (Five Crowns Restaurant, 3801 East Coast Highway, PA2023-0202): Appellants' Written Response to the Staff Report and Objections to Proposed Resolution No. 2026-91; Proposed Redline (Exhibit A)
Dear Mayor Kleiman and Members of the City Council:
Appellants Kenneth J. Catanzarite and Kim E. Catanzarite submit this written response to the October 13, 2026 staff report and their objections to proposed Resolution No. 2026-91. We ask that this letter and Exhibit A be distributed to each Councilmember before the hearing and included in the record for Agenda Item No. 16. This submission is delivered at or before the public hearing, as the City's notice of hearing and Government Code section 65009, subdivision (b) contemplate, and it preserves each issue it raises.
I. SUMMARY
The parties agree on more than the staff report suggests. Five Crowns surrendered P A2023- 0202; the City accepted the surrender; P A2023-0202 is of no further force or effect; and it cannot be used to support any future approval. Appellants supported that confirmation from the outset.
The dispute is about what the City does with City Council Resolution No. 2025-18, which approved PA2023-0202 and contains extensive findings about the Five Crowns outdoor operation and its effect on the neighborhood. That resolution is the subject of Appellants' pending petition, Catanzarite v. City of Newport Beach, Orange County Superior Court Case No. 30-2025- 01501142-CU-WM-NJC, which asks the Court to vacate it.
The Council has two legitimate choices. First, it can rescind and vacate Resolution No. 2025-18 . That is what the appeal requested, it is what the pending petition seeks, and it would City Council -Agenda Item No. 16 - Appellants' Response and Objections October 13, 2026
finally resolve the merits of that dispute. Second, if the Council declines to rescind Resolution No. 2025-18, it should leave the question of mootness to the Superior Court, where it is pending, and not adopt a "finding" on that litigation issue.
What the Council should not do is what proposed Resolution No. 2026-91 does: leave Resolution No. 2025-18 fully in place, while declaring that it "presents no live controversy" and "has no independent utility," and simultaneously re-adopting, as "true and correct" operative findings, the very characterization of the patio that Appellants appealed. That combination would not end the controversy. It would keep Resolution No. 2025-l 8's findings available while creating a record designed to defeat the pending petition. That concern is not hypothetical: the City told the Superior Court that these proceedings would resolve the pending case, and the Court continued its hearing on the City's demurrer to see the result.
II. THE STAFF REPORT MISCHARACTERIZES THE APPEAL
A. The appeal identifies specific concerns and specific relief.
The staff rep01i states that "[t]he appeal letter did not cite specific concerns." That statement is incorrect, and the City's own Attachment D shows it. The appeal form itself states the reason for appeal:
"Limited appeal seeks de novo review to correct Section I, paragraph 2' s 'existing/ to remain' characterization and to obtain City Council vacatur and set-aside of Resolution No. 2025-18 and the decision granting P A2023-0202, matching the merits relief sough[t] in the pending writ. This appeal does not adjudicate PA2025-0208. Attorneys' fees, costs, and prevailing/successfulparty issues are reserved." The attached three-page Rider, titled "Limited Appeal and Request for De Novo Review - Request to Modify Planning Commission Resolution No. PC2026-027 and to Obtain City Council Vacatur and Set-Aside of Resolution No. 2025-18 and the Decision Granting PA2023- 0202," explains each ground under separate headings and requests nine numbered items of relief.
Among them, it asks the Council to:
(1) modify Section I, paragraph 2 of PC2026-027 by striking the "existing" / "to remain" characterization (Relief No. 2);
(2) state that the Planning Commission could confirm the surrender of PA2023-0202 but lacked authority to rescind, vacate, set aside, modify, or adjudicate City Council Resolution No. 2025-18 (Relief No. 3);
(3) vacate and set aside Resolution No. 2025-18 in its entirety, including its recitals, findings, CEQA determination, and conditions (Relief No. 4), and the decision granting P A2023-0202 (Relief No. 5);
City Council - Agenda Item No. 16 - Appellants' Response and Objections October 13, 2026
( 4) state that Resolution No. 2025-18 and the decision granting PA2023-0202 have no continuing force or effect and "shall not be relied upon as operative City determinations" (Relief No. 6);
(5) direct the City Clerk to annotate Resolution No. 2025-18 accordingly (Relief No. 7);
( 6) state that the Council's action does not adjudicate or approve P A2025-0208 (Relief No. 8); and
(7) preserve all attorneys' fees, costs, and prevailing-party issues in the pending proceeding (Relief No. 9).
Exhibit 1 to the appeal sets out a proposed redline of PC2026-027 and a proposed Council disposition. These are specific concerns by any measure. The record should not state otherwise.
B. The appeal does not ask the Council to decide P A2025-0208.
The staff report states that Appellants' comments "primarily relate to the pending Conditional Use Permit application (PA2025-0208)." The appeal says the opposite: it "does not ask the Council to decide the merits of P A2025-0208" (Rider, § I), and it asks the Council to state that its action "does not adjudicate or approve PA2025-0208 or any successor application" (Relief No. 8). P A2025-0208 is mentioned for one reason: it shows why an unrescinded Resolution No. 2025-18, and its findings, have continuing practical consequences. Appellants are not asking the Council to approve or deny that application. They are asking that the surrendered temporary permit's findings not be carried into it.
C. The staff report misidentifies the record.
The staff report states that Appellants' pre-hearing public comments are included in Attachment D. They are in Attachment E. Attachment Dis the appeal and its Rider. The distinction matters: the staff report treats Appellants' September 16 comments as if they were the appeal, and then treats the appeal itself as having said nothing.
D. The Council is not merely being asked to "confirm an action that has already taken place."
The staff report concludes that "[t]he City Council is being asked to confirm an action that has already taken place." The surrender took place in December 2025. Proposed Resolution No. 2026-91 does something new. It declares that the Council's own Resolution No. 2025-18 "presents no live controversy" and "has no independent utility," and it declares its recitals "true and correct" and operative. Those are new determinations about a question pending before the Superior Court, made by a public entity that is a party to that litigation, after the Court issued a tentative ruling against the City on that question and continued the hearing at the City's request to await the outcome of these proceedings. The Council is also conducting a de novo hearing, as the staff report City Council -Agenda Item No. 16 Appellants' Response and Objections October 13, 2026
Page4
itself recommends, under NBMC Chapters 20.64 and 21.64. It is not limited to confirming the Planning Commission's action and may modify it.
III. THE SUPERIOR COURT'S TENTATIVE RULING ADDRESSES THE "NO LIVE CONTROVERSY" QUESTION
In Case No. 30-2025-01501142, the City and Five Crowns demurred on the ground that the surrender of PA2023-0202 made Appellants' challenge to Resolution No. 2025-18 moot. The Superior Court issued a tentative ruling overruling both demurrers. The City then represented that these pending City proceedings would resolve the case, and the Court continued the hearing to see the result. The tentative ruling explained:
"Although it is undisputed the L TP has been surrendered, there is nothing presented showing that Resolution No. 2025-18, by which the City approved Real Parties' LTP application, has been rescinded or that the findings therein no longer have any force or effect. ... The City has not shown how surrender of the L TP renders these findings and determinations a nullity or that these findings cannot be used in later proceedings involving the same parties and properties at issue."
The tentative ruling further stated that the City "failed to show that vacatur of Resolution No. 2025-18 would have no legal or practical effect," and that, in any event, the controversy over Five Crowns' outdoor operations "is likely to recur" because PA2025-0208 is pending.
Proposed Section 2 is evidently drafted with the tentative ruling in mind. It tracks the Court's language, but it does not supply what the Court found missing:
(I) It does not rescind or vacate Resolution No. 2025-18. The resolution, its findings, its CEQA determination, and its conditions all remain in place. (2) Its non-reliance sentence is too narrow to matter. It says only that Resolution No. 2025-18 "shall not be invoked for any further discretionary approvals or entitlements that the Applicant may request." It does not reach the resolution's findings. It does not bind the City or its staff, the property owner (FPV II Partnership), or any successor. It does not reach CEQA baseline or Class I comparisons, enforcement, or any other proceeding. And "invoked" is narrower than "relied upon" or "considered."
(3) "No live controversy" is a judicial question. Whether the pending petition is moot is for the Court, which has already ruled. The Court continued its hearing to learn whether the City would take action that actually changes the facts it identified, such as rescinding Resolution No. 2025-18. A declaration by the Council, a party to that litigation and sitting as the adjudicator of Appellants' appeal, that its own resolution presents "no live controversy" does not change those facts. It only adds a litigation position to an appeal decision.
City Council Agenda Item No. 16 - Appellants' Response and Objections October 13, 2026
The proposed resolution also retreats from the City's own position. At the Planning Commission, the City described the purpose of this action as confirming that the rights under P A2023-0202 are void. The September 17, 2026 minutes (Attachment C) state the item's purpose as "to confirm that the rights afforded by the prior approval are void and have not been in force and effect since it was voluntarily surrendered on December 2, 2025," and record that Deputy City Attorney Jose Montoya "stated that the purpose of the action was solely to confirm that the rights afforded under P A2023-0202 are void." Neither PC2026-027 as described in the staff report nor proposed Resolution No. 2026-91 uses that word. Each says only that P A2023-0202 is "of no further force and effect." The Council should adopt the characterization its own counsel gave the Commission: the rights afforded by P A2023-0202 are void. Exhibit A does so.
If the Council intends that Resolution No. 2025-18 truly have no utility, the direct way to accomplish that is to rescind it. If the Council is not prepared to rescind it, the Council should not declare it a nullity for litigation purposes while leaving it legally intact.
IV. THE PROPOSED RESOLUTION RE-ADOPTS THE LANGUAGE
APPELLANTS APPEALED
The first ground of the appeal is the characterization of PA2023-0202 as a permit "to allow an existing temporary outdoor dining patio to remain for a limited term." Appellants objected to "existing" and "to remain" because those words can be cited later as a finding that the approximately 1,350-square-foot expanded area was a lawful, existing use, when the controlling permanent entitlement, Use Permit No. UP 1822, authorizes approximately 348 square feet of outdoor patio, four tables, and 24 outdoor patrons.
Proposed Resolution No. 2026-91 repeats that exact characterization in its fourth recital, and its fifth recital describes the expanded area as an addition to the Restaurant's "existing outdoor dining." Section 3 then provides that "[t]he recitals provided in this resolution are true and correct and are incorporated into the operative part of this resolution." Adopted as drafted, the resolution would do more than leave the disputed language in a historical narrative: the City Council would affirmatively find it true and make it operative, while denying the appeal that challenged it.
The same concern applies to Attachment B. The September 17, 2026 Planning Commission staff report, now in the Council's packet, contains an Environmental Review section stating that "[t]he proposed scope of work includes the temporary use of an outdoor dining area of approximately 1,350-square-feet including an 850-square-foot tent canopy with exterior live entertainment at an existing restaurant" and that "the project qualifies under the parameters of the Class 1 exemption." Neither the Planning Commission nor proposed Resolution No. 2026-91 relies on Class l; both rely on Guidelines sections 15060(c)(2)-(3) and 15321. The Council should say expressly that it does not adopt the Class 1 discussion, so that it cannot later be cited as a determination that the temporary operation was an "existing facility" with "negligible or no expansion of use."
City Council Agenda Item No. 16 -Appellants' Response and Objections October 13, 2026
V. FACTUAL MATTERS THAT SHOULD BE CORRECTED
(1) Resolution number. The ninth recital refers to Planning Commission "Resolution No. 2026-027." The resolution is No. PC2026-027.
(2) Minutes. The September 17, 2026 minutes (Attachment C) record that Mr.
Catanzarite stated UP 1822 limited the patio to "four tables, and 26 patrons." His written statement, submitted the same day, states 24 outdoor patrons (four tables at six persons per table). The record should reflect 24.
(3) Title and disposition. The appeal requested specific relief that is warranted at least in part. The resolution should not state that the appeal is denied.
VI. REQUESTED ACTION
Appellants respectfully request that the Council adopt Resolution No. 2026-91 in the form shown in Exhibit A, which:
(1) grants the appeal in part and modifies the Planning Commission's decision; (2) replaces the "existing temporary outdoor dining patio to remain" recital with a neutral description, and states that the recitals are procedural history and not findings about the lawful scope of use;
(3) confirms, in the words the City's own counsel used before the Planning Commission, that P A2023-0202 and the rights it afforded are void and of no further force or effect;
(4) rescinds and vacates Resolution No. 2025-18 in its entirety, without any determination or concession by any party about its validity when adopted; (5) provides that neither Resolution No. 2025-18, its findings, PA2023-0202, nor any operation conducted under it may be relied upon by the City, the applicant, the owner, or any successor as an entitlement, an existing or former use, or a baseline, in P A2025-0208 or any other proceeding concerning Five Crowns; (6) disclaims the Class 1 discussion in Attachment B; and (7) reserves the merits of PA2025-0208 and all claims, defenses, remedies, fees, and costs in the pending judicial proceedings.
Alternative. If the City Attorney advises that the agenda description does not permit formal rescission of Resolution No. 2025-18 at this meeting, Appellants request that the Council (a) grant the appeal in part; (b) adopt the neutral recitals and the broader non-reliance provision in Exhibit A; ( c) delete the "no live controversy" and "no independent utility" language from Section 2; and ( d) direct staff to return at the next properly noticed meeting with a resolution rescinding Resolution No. 2025-18. Appellants object to adoption of proposed Section 2 in its current form under any circumstances.
City Council - Agenda Item No. 16 - Appellants' Response and Objections October 13, 2026
VII. RECORD AND RESERVATION OF RIGHTS
Appellants request that this letter and Exhibit A; the September 22, 2026 appeal, Rider, and Exhibit 1; the September 16, 2026 Limited Objection and Conditional Non-Opposition; the September 17, 2026 Prepared Statement, Attachment A, and transmittal email; Mr. Catanzarite's oral statements; the September 1, 2026 letter; and the materials incorporated in them be included in the record for Agenda Item No. 16.
Nothing in this submission waives any claim, objection, position, or remedy of Appellants, including their position in Case No. 30-2025-01501142 that the petition is not moot and their right to seek attorneys' fees, costs, and prevailing-party status in that proceeding, including under Code of Civil Procedure section 1021.5, whether the relief they seek is obtained by Council action or by judgment.
Thank you for your consideration.
Respectfully submitted,
Catanzarite
zarite
ts Kenneth J. Catanzarite and Kim E.
Enclosure: Exhibit A -Proposed Redline of Resolution No. 2026-91 cc: Aaron C. Harp, City Attorney ([email protected]) Jose Montoya, Deputy City Attorney ([email protected]) Seimone Jurjis, City Manager ([email protected]) Jaime Murillo, Community Development Director ([email protected]) Liz Westmoreland, Deputy Community Development Director ([email protected])
Ginetta L. Giovinco, Esq.([email protected])
Nicholas J. Schuchert, Esq. ([email protected]) Chloe Ann Lee, Esq.([email protected])
City Council -Agenda Item No. 16 - Appellants' Response and Objections October 13, 2026
EXHIBIT A
PROPOSED REDLINE OF RESOLUTION NO. 2026-91
Deletions shown in reds#ikefhroitg#: insertions shown in blue underline .
RESOLUTION NO. 2026-91
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
NEWPORT BEACH, CALIFORNIA, VENYiN~N ,«7~-,; .. ND
lJPll)O'l.,Dl'N'C GRANTING IN PART AN APPEAL AND MODIFYING
THE PLANNING COMMISSION'S DECISION CONFIRMING
VOLUNTARY SURRENDER OF A LIMITED TERM PERMIT TO
ALLOW A TEMPORARY OUTDOOR DINING AREA WITH LIVE
ENTERTAINMENT LOCATED AT 3801 EAST COAST HIGHWAY
(P A2023-0202) AND €70NFlRMINC RE~Ut:t@ NO. 20~§ :f-si
PRESEN1'8 N() f:,Jff C00tRCiVER8¥ , AND RESCINDING
RESOLUTION NO. 2025-18
WHEREAS, the City of Newport Beach ("City") is governed, in part, by the Charter of the City of Newport Beach, Newport Beach Municipal Code, and Council Policies; WHEREAS, Section 200 of the City Charter vests the City Council with the authority to make and enforce all laws, rules, and regulations with respect to municipal affairs subject only to the restrictions and limitations contained in the Charter and the State Constitution, and the power to exercise, or act pursuant to any and all rights, powers and privileges, or procedures granted or prescribed by any law of the State of California;
WHEREAS, an application was filed by Ryan Wilson, of Lawry 's Restaurants Inc. ("Applicant"), concerning property located at 3801 East Coast Highway, and legally described as Parcel 1 of Resubdivision 523, which is owned by FPV II Partnership ; WHEREAS, the Applicant applied for a limited term permit and coastal development permit ("CDP") to allow arr e'>tistin:g te¥Wp'o'rilr)' outdoot d1rrfn'g'=pa'fie to' ref'fu11W an approximately
1.350-square-foot expanded temporary outdoor dining area for a limited term at the Five Crowns Restaurant ("Project");
WHEREAS, the expanded 1,350-square-foot dining area includes an 850-square-foot canopy that was originally approved by an Emergency Temporary Use Permit ("ETUP") in 2020 as a temporary addition to the Restaurant's e'xi·sarrg; outdoor dining authorized under Use Permit No. UP 1822 ;
WHEREAS, nothing in these recitals determines or implies that the expanded area, or any activity conducted within it, constituted a lawful permanent existing use, a vested right, a permanent entitlement, an enlargement of Use Permit No. UP 1822, or an existing, former, historical, or baseline use for any purpose;
City Council - Agenda Item No. 16 - Appellants' Response and Objections October 13, 2026
WHEREAS, on July 25, 2024, a public hearing was held by the Zoning Administrator, online via Zoom. [Remainder ofrecital unchanged.]
WHEREAS, at the conclusion of the continued hearing, the Zoning Administrator adopted Resolution No. ZA2024-045 approving the Limited Term Permit PA2023-0202; WHEREAS, on August 28, 2024, Ken and Kim Catanzarite filed an appeal of the Zoning Administrator's decision [remainder unchanged];
[Recitals concerning the December 5, 2024 Planning Commission hearing, Resolution No.
PC2024-027, the subsequent appeal, the April 29, 2025 City Council hearing, and Resolution No. 2025-18 unchanged.]
WHEREAS, the Applicant voluntarily surrendered PA2023-0202 and the City accepted that surrender effective December 2, 2025 ;
WHEREAS, on September 17, 2026, the Planning Commission adopted Resolution No.
PC2026-027 by unanimous vote (6 ayes, 0 nays) confirming voluntary surrender of a limited term permit to allow a temporary outdoor dining area with live entertainment and confirming Resolution No. 2025-18 presents no live controversy;
WHEREAS, on September 22, 2026, an appeal was filed by Kenneth J. Catanzarite and Kim E. Catanzarit~ requesting, among other things, correction of the characterization of the expanded area as an "existing temporary outdoor dining patio" permitted "to remain," City Council rescission and vacatur of Resolution No. 2025-18 and the decision granting P A2023-0202, and preservation of all issues in pending judicial proceedings; and WHEREAS, a de novo public hearing was held by the City Council on October 13, 2026 [remainder unchanged].
NOW, THEREFORE, the City Council of the City of Newport Beach resolves as follows:
Section 1: The appeal is granted in part, and the decision of the Planning Commission is modified as set forth in this resolution.
Section + 2_ : The City Council does hereby confirm that PA2023-0202 and the rights afforded by it are void and -i-s are of no further force and effect and ~ -have not been in effect as of December 2, 2025 .
Section ~ }_ : Tli'e ei:ty'--eo'u'J'fc:i;Hfa's coosMered¼h'e'-d 1 ec·fafrm"'-6'fiPl'eLPl1a¥fn'i¥i'w-e6'm1Wfosfo#
and firrtlier" oonfirmsiha't ~esdl1r:1ti.on'-·No. 20'2-5'=--l g--preselits=no~1 1 fve"Leoottbversy=m; a'=tle:st:dt-df=th'e'
' ,_,.. @ • ~ '/6' ' t •• <> ~ - § ba t \." 'I ' ' ~ vo I u ntary-=surrenEI er--of PA2 0 :, o~Oz-:-Resou'hdn'-lsfo':=2~'5'==1---=served s=ffi'n-ePH'dl e'i&=appfuve PA202'3'=0'2'01-; ~*ith' tlie surrerrdeY=-at .Pk1003 -020~, th'e' Resolutfom'-has n'o'=fodeperrd1e¥ft utfPity.
Resolufren'----flfo~0215' 1Lg slial~:---imt=l5e'==i1i\foked'==f&=any=ftrrth'eY &i·scrt#forrary==app'roval1s=or' emitlem'ents· tlia:f tlie Appli"c'imf=rrra5'=te'qu'est- City Council Resolution No. 2025-18 is rescinded and vacated in its entirety, including its recitals, findings, CEOA determination, approvals, and conditions, and every determination incorporated in it, and shall have no further force or effect.
City Council - Agenda Item No. 16 - Appellants' Response and Objections October 13, 2026
The City Clerk shall annotate the official record of Resolution No. 2025-18 as "RESCINDED AND VACATED - NO FORCE OR EFFECT," and shall place this resolution in the files for PA2023-0202 and PA2025-0208. Nothing in this Section constitutes a determination or concession by any party concerning the validity of P A2023-0202 or Resolution No. 2025-18 when approved or adopted.
Section 4: Neither Resolution No. 2025-18, its recitals, findings, determinations, or conditions, nor PA2023-0202, nor any operation conducted under P A2023-0202, shall be relied upon, invoked, cited, or considered, directly or indirectly, by the City, the Applicant, the owner of the property, or any successor, as legal authority, a vested right, an entitlement, a lawful-existinguse determination, an enlargement of Use Permit No. UP 1822, evidence of an existing, former, or historical use, or a CEOA, parking, traffic, noise, lighting, or operational baseline, in P A2025- 0208 or any other proceeding concerning the Five Crowns Restaurant.
Section 5: Nothing in this resolution determines the merits of P A2025-0208 or any successor application, the scope of Use Permit No. UP 1822, or any CEOA, parking. noise, lighting, special-event, enforcement, or nuisance matter, or determines or affects any claim, defense, remedy, mootness contention, attorneys' fees, costs, or prevailing-party status in any pending judicial proceeding.
Section 3'. .Q : The recitals provided in this resolution are true and correct §n'dLare incorp'oFated i"nl'o fh'e ope-rativ&patt-6'f1iltfs rdSol utfo!'f as a statement of procedural history, and do not constitute findings concerning the lawful scope of use of the property • Section 4 7: [Severability- unchanged.]
Section .§1 ~ : The City Council finds that this action is not subject to the California Environmental Quality Act ("CEQA") pursuant to Sections 15060(c)(2) [remainder unchangedL The City Council does not adopt the Class 1 (Existing Facilities) discussion in the Planning Commission staff report dated September 17, 2026, and makes no determination that any temporary outdoor dining area, canopy, tent, or live-entertainment use is an existing facility, an existing or former use, or a baseline for any purpose - Section @ .2. : This resolution shall take effect immediately upon its adoption by the City Council, and the City Clerk shall certify the vote adopting the resolution.
CATANZARITE LAW CORPORATION
2331 West Lincoln Avenue, Anaheim, California 92801 I (714) 520-5544 STATEMENT OF KENNETH J. CATANZARITE
Newport Beach City Council - October 13, 2026 - Agenda Item No. 16 Resolution No. 2026-91-Appeal of Planning Commission Resolution No. PC2026-027 (Five Crowns, P A2023-0202)
For inclusion in the record/or Agenda Item No. 16
Good afternoon, Mayor Kleiman and Members of the Council. I am Ken Catanzarite. My wife Kim and I own 352 and 354 Hazel Drive, directly across from the Five Crowns courtyard, and we are the appellants.
I incorporate our written response and objections, delivered to the Clerk and the Council, with its Exhibit A redline of Resolution No. 2026-91, and all of our prior submissions.
I will make four points.
First, the staff report misstates our appeal. It says the appeal "did not cite specific concerns." Attachment D, the City's own exhibit, is our appeal. The form states the reason for appeal. The three-page Rider explains each ground and requests nine numbered items of relief, with a proposed redline. Staff also says our comments "primarily relate" to the pending CUP. The appeal says the opposite: it asks the Council not to decide PA2025-0208. And staff cites our comments as Attachment D; they are Attachment E. The record should be accurate.
Second, Section 2 does not do what it says. It declares that Council Resolution No. 2025- 18 "presents no live controversy" and "has no independent utility," but leaves that resolution and every one of its findings in place. Whether our pending case is moot is a question for the Superior Court. The Court's tentative ruling found that the City had not shown that Resolution No. 2025- 18 was rescinded, that its findings had lost force, or that they could not be used in later proceedings.
The City then told the Court that these proceedings would resolve the case, and the Court continued its hearing to see what the City does. A declaration does not change those facts. Rescission does.
Section 2 also drops the word Deputy City Attorney Jose Montoya used. At the Planning Commission, he stated that the purpose of this action was to confirm that the rights under PA2023- 0202 are "void." The minutes, Attachment C, record that. The draft resolution says only "no further force and effect." Exhibit A restores "void."
Section 2's non-reliance sentence is also too narrow. It says only that the resolution "shall not be invoked" by "the Applicant" for future approvals. It does not reach the findings. It does not bind the City, the owner, or any successor. And it does not reach the CEQA baseline or the pending CUP.
Third, the resolution re-adopts the very language we appealed. Its recitals again describe an "existing temporary outdoor dining patio" permitted "to remain." Section 3 then declares every recital "true and correct" and operative. The permanent entitlement, UP 1822, City Council - Agenda Item No. 16 - Statement of Kenneth J. Catanzarite October I 3, 2026
allows about 348 square feet, four tables, and 24 outdoor patrons. A Council finding that a surrendered 1,350-square-foot temporary area was "existing" is exactly what we asked you not to make. And Attachment B still carries a Class 1 "existing facilities" analysis that neither the Commission nor this resolution relies on. The Council should disclaim it.
Fourth, the Council has two legitimate choices. You can rescind Resolution No. 2025- 18, as the appeal requests. That would resolve the merits of the pending case. Or, if you will not rescind it, you should leave mootness to the Court and strike the "no live controversy" and "no independent utility" language. What you should not do is keep the resolution alive while declaring it meaningless for purposes of our lawsuit.
We ask that you adopt the resolution in the form of our Exhibit A. It grants the appeal in part; replaces the "existing / to remain" recital with neutral language; confirms that PA2023-0202 and its rights are void; rescinds and vacates Resolution No. 2025-18 without any concession by any party about its validity when adopted; bars reliance on that resolution, its findings, or the temporary operation by the City, the applicant, the owner, or any successor; disclaims the Class 1 analysis; and reserves PA2025-0208 and all litigation issues.
If the City Attorney advises that rescission cannot occur tonight, grant the appeal in part, adopt the corrected recitals and the broader non-reliance provision, strike the "no live controversy" language, and direct staff to return with a rescission resolution. We object to Section 2 as drafted in any event.
We reserve all rights in the pending litigation, including our position that it is not moot and our right to attorneys' fees and costs. Thank you.
Kenneth J. Catanzarite
for Appellants Kenneth J. Catanzarite and Kim E.
Catanzarite