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HomeMy WebLinkAbout3.0_The Village Inn Outdoor Dining Use Permit_PA2015-016 CITY OF NEWPORT BEACH PLANNING COMMISSION STAFF REPORT November 3, 2016 Meeting Agenda Item No. 3 SUBJECT: The Village Inn Outdoor Dining and Land Use Amendments (PA2015-016) 123 and 127 Marine Avenue Conditional Use Permit No. UP2016-012 APPLICANT: Dan Miller, Village Inn Management OWNER: Charles Kinstler PLANNER: Brenda Wisneski, Deputy Community Development Director (949) 644-3297, bwisneski@newportbeachca.gov PROJECT SUMMARY This application was continued from the October 20, 2016, Planning Commission meeting at the request of the applicant to allow them additional time to assess alternative bike rack locations. The link to October 20, 2016 staff report may be accessed at the end of this report. The project consists of the establishment of a 200 square foot outdoor dining area to be located in front of the Village Inn restaurant at 127 Marine Avenue, within the public right of way. The outdoor dining area would displace existing bike racks which may be relocated within the public right of way, at the discretion of the City Council. If approved, the City Council will consider the encroachments associated with the outdoor dining area, in accordance with Council Policy L-21. As part of the action, the City Council will be requested to direct staff to relocate the bike racks within the public right of way on blocks 200 and/or 300 Marine Avenue. Pursuant to Chapter 5.25 of the Newport Beach Municipal Code, the Conditional Use Permit requires the owner/operator to obtain an Operator License from the Newport Beach Police Department. RECOMMENDATION 1) Conduct a public hearing; and 2) Adopt Resolution No. _ approving Conditional Use Permit No. UP2016-012 to establish an outdoor dining area associated with the Village Inn located at 127 Marine Avenue (Attachment No. PC 2). 1 The Village Inn Outdoor Dining Planning Commission, November 3, 2016 Page 2 REVISIONS Bike Racks The outdoor dining area will displace racks for 20 bicycles. The original proposal was to relocate the bikes to the adjacent property at 123 Marine Avenue, which is also owned by the applicant. A public access easement would be established to allow the racks to be used by the community. In response to concerns from the neighborhood, the applicant sought alternative locations for the racks which included Park Avenue and Marine Avenue. The City has understands the need to establish additional racks which are more centrally located. This need was also recognized in the Bicycle Master Plan and has been discussed within the community for several years. The City's Public Works Department considers the installation of bike corrals on the 200 and/or 300 block of Marine Avenue to be a feasible alternative which could establish locations for more than 20 bikes. Public Works indicates the bike corrals could be established at the new location within four months. Therefore, a condition of approval (#32) has been developed stating that the use permit shall not be effective until the City Council directs staff to pursue this alternative location and Condition #33 requires funding from the applicant to install the racks and other related improvements. The existing racks shall not be removed until the new bike corrals are installed. 33. The applicant shall submit $12,000 to the City of Newport Beach within 30 days of the City Council authorization of the relocation of the bike racks. These funds will be used for the purchase and installation of the bike corrals to accommodate more than 20 bikes and other related improvements. The new bike corrals shall be installed prior to issuance of building permits for the outdoor dining area. Bike racks at 123 Marine Avenue are no longer proposed or needed, provided the City Council authorizes an alternative location. A revised site plan eliminating the proposed bike racks at 123 Marine Avenue is provided as Attachment PC 4. Conditions of Approval At the request of the applicant, and to address concerns from neighbors regarding potential noise impacts, the conditions of approval have been modified as follows. The changes are shown in the revised resolution provided as Attachment PC 1: • No more than 16 seats permitted within the outdoor dining area (Condition #14) • Clarification of hours of operation (Condition #15) • Clarify that the outdoor dining area would be closed and not occupied when live entertainment offered (Condition #15) 2 The Village Inn Outdoor Dining Planning Commission, November 3, 2016 Page 3 • Clarify that the outdoor dining area would be closed and not occupied when live entertainment offered (Condition #15) • Detail the required noise attenuation measures (Conditions #16 and #17) • Live entertainment shall be limited to a maximum of four musicians and/or vocalists. The Live Entertainment Permit issued in July 2012 allows five musicians. (Condition #19) • Relocation of bike racks (Condition #32 and #33) Abatement Proceedings On Monday, October 17, 2016, a public hearing before the City's Hearing Officer was conducted to consider a ten year extension for the abatement of the restaurant structure which encroaches onto 123 Marine Avenue. Following receipt of public testimony, the Hearing Officer requested that additional information be provided by the City and the applicant. This information was been submitted to the Hearing Officer on October 24, 2016, and he granted a ten (10) day comment period for the public to review the additional information and provide comment. The Hearing Officer is expected to make a decision after November 2, 2016, following the ten day comment period. CONCLUSION Establishment of the outdoor dining area will contribute to the pedestrian atmosphere of Balboa Island and implements Land Use Policy LU 5.3.5. An excerpt of this policy is provided below: LU 5.3.4 Pedestrian-Oriented Architecture and Streetscapes "Require that buildings located in pedestrian-oriented commercial and mixed-use districts be designed to define the public realm, activate sidewalks and pedestrian paths, and provide "eyes on the street"in accordance with the following principles: Inclusion of outdoor seating and other amenities that extend interior uses to the sidewalk, where feasible." An acoustic analysis includes noise attenuation measures which would improve the noise levels associated with the existing use and related live entertainment. Although existing operations are not subject to the proposed use permit and the City has not documented noise-related violations associated with the existing operations, the applicant has agreed to implement these improvements and conditions of approval have been incorporated accordingly. Relocation of the bike racks to a more central location on Marine Avenue is a benefit to the residents on the 100 block of Marine Avenue and the broader community. Neighboring residents have expressed concerns with noise created by the public 3 The Village Inn Outdoor Dining Planning Commission, November 3, 2016 Page 4 loitering near the racks during late hours. Relocation of the racks to a more central location, away from residential uses, should address noise concerns associated with the bike racks. The information presented above and the finding presented in the draft resolution, support approval of the requested use permit. Alternatives The Planning Commission may choose to modify or deny the Conditional Use Permit. If denied, the outdoor dining area at 127 Marine Avenue would not be constructed. A resolution of denial has been provided (Attachment PC 3). Prepared by: rn-j"1W r n a wisnes i, ICP, Deputy Director ATTACHMENTS PC 1 REVISED Resolution Approving Use Permit— tracked changes PC 2 REVISED Resolution Approving Use Permit— changes accepted PC 3 Resolution Denying Use Permit PC 4 Revised Site Plan PC 5 Link to October 20, 2016 PC Staff Report and Attachments 4 Attachment PC 1 REVISED Resolution Approving Use Permit — tracked changes 5 V� QP �P RESOLUTION NO. #### A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH, CALIFORNIA, APPROVING USE PERMIT NO. UP2016-012 TO ESTABLISH AN OUTDOOR DINING AREA ASSOCIATED WITH AN EXISTING RESTAURANT AT 127 MARINE AVENUE (PA2016-016) THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS FOLLOWS: SECTION 1. STATEMENT OF FACTS. 1. An application was filed by Dan Miller, with respect to property located at 127 Marine Avenue, and legally described as Balboa Island Sec 4 Lot 15 Blk & Lot 16 Blk 1 Ex E 10 Ft Lots 15 requesting to establish an outdoor dining area associated with an existing restaurant. The proposed dining area would also require relocation of existing bike racks to 123 Marine Avenue.. 2. The applicant proposes to construct a 200 square foot outdoor dining area located along the front of the structure on Marine Avenue. The proposed area is located within the public right-of-way. 3. The subject property is located within the Mixed Use Water Related Zoning District and the General Plan Land Use Element category is Mixed Use Water Related (MU-W2). 4. The subject property is located within the coastal zone. The Coastal Land Use Plan category is Mixed Use Water Related (MU-W). 5. On March 19, 2009, the Planning Commission approved an amendment to Use Permit No. UP2009-002 allowing for the remodel of the restaurant and determining the Use Permit was consistent with the zoning provisions for alcohol sales. Conditions of approval were established to minimize potential impacts from the restaurant operations to the nearby neighborhood. Use Permit No. UP2009-002, as amended, and related conditions of approval shall remain in effect. 6. On December 3, 2015, the Planning Commission considered Use Permit No. UP2015- 006 for a similar request to establish an outdoor dining area. The Use Permit application was accompanied by a request to amend the land use designation at 123 Marine Avenue to accommodate an existing legal nonconforming encroachment of the restaurant structure on that property. Because the action included a legislative action, the City Council was the final decision-making body (GP2015-002, LC2015-001, CA2015-010). The Planning Commission recommended denial of Use Permit No. UP 2015-006 and continued the land use amendment. To allow further consideration and revision of the subject applications, the applicant voluntarily withdrew both applications. 7. A public hearing was #eldscheduled to occur on October 20, 2016 in the Council Chambers located at 100 Civic Center Drive, Newport Beach. A notice of time, place 7 Planning Commission Resolution No. #### Page 2 of 9 and purpose of the public hearing was given in accordance with the Newport Beach Municipal Code (NBMC). €vi^'^^^^ beth "r'"^^ and oral, was preSeRted to and aonsideFed-by_At the request of the applicant, the Planning Commission at this puoiiv hear+ngcontinued the item to its regularly scheduled meeting on November 3, 2016. 8. On November 3. 2016, a public hearing was conducted in the Council Chambers located at 100 Civic Center Drive, Newport Beach. A notice of time, place and purpose of the public hearing was given in accordance with the NBMC. SECTION 2. CALIFORNIA ENVIRONMENTAL QUALITY ACT DETERMINATION. The Planning Commission finds this action is categorically exempt under Section 15303, of the State California Environmental Quality Act (CEQA) Guidelines - Construction or Conversion of Small Structures because the improvements associated with the outdoor dining area are considered accessory to the main structure. The project is also categorically exempt under Section 15302, of the State CEQA Guidelines - Class 2 (Replacement or Reconstruction) on the basis that the land use amendment does not result in new development or change the current use of the property located at 127 Marine Avenue. SECTION 3. REQUIRED FINDINGS. In accordance with NBMC Section 20.52.020(F), the following findings and facts in support of such findings are set forth: Finding: A. The use is consistent with the General Plan and any applicable specific plan; Fact in Support of Finding: 1. The subject property is designated by the General Plan as Mixed Use Water Related. The proposed project is consistent with the MU-W2 land use category, which is intended to provide for marine-related uses including retail, restaurants, and visitor-serving uses with residential on the upper floors because the project consists of an existing restaurant and residential use. Finding: B. The use is allowed within the applicable zoning district and complies with all other applicable provisions of this Zoning Code and the Municipal Code; Facts in Support of Finding: 1. The subject property is located in the Mixed Use Water Related Zoning district. Eating and drinking establishments are permitted within this district subject to the approval of a use permit. n7��n14 8 Planning Commission Resolution No. #ftt Page 3 of 9 2. The outdoor dining area is proposed to be approximately 200 square feet in size which does not require parking under Table 3-10 in NBMC Chapter 20.40.040 (Off- Street Parking Spaces Required). Finding: C. The design, location, size, and operating characteristics of the use are compatible with the allowed uses in the vicinity; Facts in Support of Finding: 1. The proposed outdoor dining area is located along Marine Avenue, an active mixed use commercial area with high pedestrian use. Outdoor dining areas are encouraged in mixed use areas as they contribute to the vibrancy of the area. 2. The subject dining area is limited to 200 square feet and extends four (4) feet from the building edge. The sidewalk would is maintained at six (6) feet which is adequate to accommodate pedestrian passage. 3. As conditioned, the outdoor dining area and glass doors will close at 9:00 p.m. or 10:00 p.m., as detailed in Condition of Approval No. 4415. 4. As conditioned, the proposed glass doors are double paned (or similar material) to provide improved, noise attenuation, as compared to the existing exterior wall and windows. 5. The existing bike racks in the front of the property will be re-located to a designated area OR 3within the public right of way on the 200 and/or 300 block of Marine Avenue. Finding: D. The site is physically suitable in terms of design, location, shape, size, operating characteristics, and the provision of public and emergency vehicle (e.g., fire and medical) access and public services and utilities; and Fact in Support of Finding: 1. Establishment of the outdoor dining area does not impact public and emergency vehicle access and public services and utilities, as the improvements are limited to a 200 square foot dining area and do not encroach into the roadway. Finding: E. Operation of the use at the location proposed would not be detrimental to the harmonious and orderly growth of the City, nor endanger, jeopardize, or otherwise constitute a hazard to the public convenience, health, interest, safety, or general welfare of persons residing or working in the neighborhood of the proposed use. Facts in Support of Finding: n7��n14 9 Planning Commission Resolution No. eft Page 4 of 9 1. The project includes conditions of approval to ensure that potential conflicts with surrounding land uses are minimized to the greatest extent possible. Closing the outdoor dining area at 9:0wand Elesi ig-the noise attenuated glass doors at 9:00 p.m. daily, except Fridays and Saturdays between Memorial Day weekend and Labor Day, on Federal holidays, and during community events when the outdoor dining area shall close by 10:00 p.m., or prior to commencement of live entertainment will ensure compliance with NBMC Chapter 10.26 (Community Noise Control). 2. An acoustical analysis, prepared by KFEB Acoustics on March 20, 2016, concluded that with the implementation of proposed noise reduction measures the levelive performances will comply with the City's nighttime noise threshold limit of 50 dBA. 3. Establishment of the outdoor dining area will require that the bike racks be relocated to the 200 and/or 300 blocks of Marine Avenue. Neighboring residents have expressed concerns with noise created by the public loitering near the racks during late hours. Relocation of the racks to a more central location, away from residential uses, should address noise concerns associated with the bike racks. SECTION 4. DECISION. NOW, THEREFORE, BE IT RESOLVED: 1. The Planning Commission of the City of Newport Beach approves Use Permit No. UP2016-012, subject to the conditions set forth in Exhibit A, which is attached hereto and incorporated by reference. 2. This action shall become final and effective fourteen (14) days following the date this Resolution was adopted unless within such time an appeal is filed with the City Clerk in accordance with the provisions of NBMC Title 20 (Planning and Zoning). PASSED, APPROVED, AND ADOPTED THIS 2e 3`d DAY OF ^�EROFNOVEMBER, 2016. AYES: NOES: ABSTAIN: ABSENT: BY: Kory Kramer, Chairman n7��n14 2� Planning Commission Resolution No. #### Page 5 of 9 BY: Pete Zak, Secretary n7��n14 22 Planning Commission Resolution No. #### Page 6 of 9 EXHIBIT "A" CONDITIONS OF APPROVAL PLANNING 1 . The development shall be in substantial conformance with the approved site plan, floor plans and building elevations stamped and dated with the date of this approval. (Except as modified by applicable conditions of approval.) 2. Use Permit No. UP2016-012 shall expire unless exercised within twenty-four (24) months from the date of approval as specified in NBMC Section 20.54.060, unless an extension is otherwise granted. 3. The project is subject to all applicable City ordinances, policies, and standards. 4. The applicant shall comply with all federal, state, and local laws. Material violation of any of those laws in connection with the use may be cause for revocation of this Use Permit. 5. This Use Permit may be modified or revoked by the Planning Commission should they determine that the proposed uses or conditions under which it is being operated or maintained is detrimental to the public health, welfare or materially injurious to property or improvements in the vicinity or if the property is operated or maintained so as to constitute a public nuisance. 6. Any change in operational characteristics, expansion in area, or other modification to the approved plans, shall require an amendment to this Use Permit or the processing of a new Use Permit. 7. A copy of the Resolution, including conditions of approval Exhibit "A" shall be incorporated into the Building Division and field sets of plans prior to issuance of the building permits. 8. All noise generated by the proposed use shall comply with the provisions of NBMC Chapter 10.26 and all other applicable noise control requirements in the NBMC. 9. Should the property be sold or otherwise come under different ownership, any future owners or assignees shall be notified of the conditions of this approval by either the current business owner, property owner or the leasing agent. 10. No exterior amplified music, sound system, televisions, outside paging system shall be utilized in conjunction with the outdoor dining area. 11. The exterior of the business shall be maintained free of litter and graffiti at all times. The owner or operator shall provide for daily removal of trash, litter debris and graffiti from the premises and on all abutting sidewalks within twenty (20) feet of the premises. n7��n14 12 Planning Commission Resolution No. #ftt Page 7 of 9 12. A Special Events Permit is required for any event or promotional activity outside the normal operational characteristics of the approved use, as conditioned, or that would attract large crowds, involve the sale of alcoholic beverages, include any form of on- site media broadcast, or any other activities as specified in the NBMC to require such permits. 13. To the fullest extent permitted by law, applicant shall indemnify, defend and hold harmless City, its City Council, its boards and commissions, officials, officers, employees, and agents from and against any and all claims, demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever which may arise from or in any manner relate (directly or indirectly) to City's approval of the Village Inn Use Permit including, but not limited to, Use Permit No. UP2016-012. This indemnification shall include, but not be limited to, damages awarded against the City, if any, costs of suit, attorneys' fees, and other expenses incurred in connection with such claim, action, causes of action, suit or proceeding whether incurred by applicant, City, and/or the parties initiating or bringing such proceeding. The applicant shall indemnify the City for all of City's costs, attorneys' fees, and damages which City incurs in enforcing the indemnification provisions set forth in this condition. The applicant shall pay to the City upon demand any amount owed to the City pursuant to the indemnification requirements prescribed in this condition. 14. No more than 16 seats shall be located within the outdoor dining area. 14 The hours of the outdoor dining area shall be limited to Winter_ Sunday to ThuFsday 7:00 a.m. to 9:00 p.m. Summer, Weekends 6Fr4 lay daily, except Fridays and SatuFdaW4t'Gf W4, 7 to e9 . 15. Saturdays between Memorial Day weekend and Labor Day. on Federal holidays, and during community events when the outdoor dining area hours shall be 7:00 a.m. to 10:00 p.m. The outdoor dining area `�h'"� Giese and its noise attenuated glass doors shall close prior to the commencement of live entertainment. Upon closing the outdoor dining area and when live entertainment is offered, whish Ma the noise attenuated glass doors which access the outdoor dining area shall be closed and no customers shall remain within the outdoor dining area when it is closed. 16. TheAll glass doors, which provide access to the outdoor dining area, and the door on the south side of the building shall be noise attenuated.- to a STC rating of 34 per the Acoustical Evaluation and Design Recommendations dated March 20, 2016 by KFEB Acoustics. The effectiveness of the noise attenuation +shall be documented in the door specifications and reviewed during the plan check process. n7��n14 13 Planning Commission Resolution No. #### Page 8 of 9 17. Prior to finalizing the building permit for the outdoor dining area, interior acoustical absorption panels shall be installed per the Acoustical Evaluation and Design Recommendations dated March 20, 2016 by KFEB Acoustics. 18. The assumptions and recommendations presented in the Acoustical Evaluation and Design Recommendations reperted-prepared by KFEB Acoustics on March 20, 2016 shall be maintained by the restaurant pertaining to upgrades and maintenance of attenuating materials (i.e., door and window seals). 19. Live entertainment shall be limited to a maximum of four (4) musicians and/or vocalists using amplified instruments and microphones at any one time. a-9-20. The quarterly gross sales of alcoholic beverages shall not exceed the gross sales of food during the same period. The licensee shall at all times maintain records, which reflect separately the gross sales of food and the gross sales of alcoholic beverages of the licensed business. These records shall be kept no less frequently than on a quarterly basis and shall be made available to the Police Department on demand. 20-.21. There shall be no reduced price alcoholic beverage promotions offered by the restaurant after 9:00 p.m. 24-.22. Food service from the regular menu shall be available to patrons up to thirty (30) minutes before the schedule closing time of the restaurant. 2-2-.23. Prior to occupying the outdoor dining area, the applicant shall obtain an Operator License from the Newport Beach Police Department. A security plan shall be submitted with the Operator License application. Building Division 224. The applicant is required to obtain all applicable permits from the City's Building Division and Fire Department. The construction plans must comply with the most recent, City- adopted version of the California Building Code. The construction plans must meet all applicable State Disabilities Access requirements. Approval from the Orange County Health Department is required prior to the issuance of a building permit. 24.25. P4eFlf the abatement period is extended, prior to issuance of building permits for the outdoor dining area, a building permit application shall be filed to address the life safety and structural issues associated with the portion of the restaurant structure which encroaches onto 123 Marine Avenue. 2-5-26. P4edf the abatement period is extended, prior to building permit final (certificate of occupancy) of the outdoor dining area, building permits shall be obtained for the portion of the restaurant structure which encroaches onto 123 Marine Avenue. 227. Structural plans shall be required for the expansion of outdoor dining. A building permit shall be required. n7��n14 �1 Planning Commission Resolution No. #### Page 9 of 10 2-7-.28. Wheelchair accessible path of travel to the area to the outdoor dining is required. 229. Delineate a wheelchair accessible seat in the outdoor dining area. 2.930. In addition to the requirements listed above, additional disable access upgrades are required which shall include: the entrance, bar counter, and/or restrooms. Accessible upgrades shall be limited to twenty percent (20%) of the value of the work for outdoor dining. Public Works 3&31. The applicant shall obtain an Annual Outside Dining Encroachment Permit from the Public Works Department and pay all applicable fees for the proposed outdoor dining area. Reed. te R;i_qP fhe &qing area 6 above t.he sidewalk, a#ewappp Rf �3 9 foot ;4,' nlrin1e4nfk iw#P;;.d of A fnnt Me n n+ n.-.h.re of the r nr.drn!/n -and- the n nn+i.-,n of the ae-eeFdjan it ef way. 3� he censistent with the area des@nated en the appreved site plan. The t),pe-ef pi e- at this /enation pO n ,nh time, the Onhl/n IA/nrks 09pa +men+ authori as 0 a4e.matiye 32. This use permit shall not become effective until such time the City Council authorizes the following: a. Waiver of CitV Council Policy L-21 as it pertains to specific components of the outdoor dining area. Areas for the City Council's consideration is the need to raise the dining area 6-inches above the sidewalk, allowance of a 6-foot wide sidewalk instead of 8-feet, the permanent nature of the guardrails, and the projection of the accordian doors into the right-of-way. b. Relocation of the bike racks or new bike corrals to be installed in the 200 and/or 300 block of Marine Avenue. 33. The applicant shall submit $12,000 to the City of Newport Beach within 30 days of the CitV Council authorization of the relocation of the bike racks. These funds will be used for the purchase and installation of the bike corrals to accommodate more than 20 2� Planning Commission Resolution No. #### Page 10 of 10 bikes and other related improvements. The new bike corrals shall be installed prior to issuance of building permits for the outdoor dining area. 10 Attachment No. PC 2 REVISED Resolution Approving Use Permit — changes accepted 17 V� QP �P sg RESOLUTION NO. #### A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH, CALIFORNIA, APPROVING USE PERMIT NO. UP2016-012 TO ESTABLISH AN OUTDOOR DINING AREA ASSOCIATED WITH AN EXISTING RESTAURANT AT 127 MARINE AVENUE (PA2016-016) THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS FOLLOWS: SECTION 1. STATEMENT OF FACTS. 1. An application was filed by Dan Miller, with respect to property located at 127 Marine Avenue, and legally described as Balboa Island Sec 4 Lot 15 Blk & Lot 16 Blk 1 Ex E 10 Ft Lots 15 requesting to establish an outdoor dining area associated with an existing restaurant. The proposed dining area would also require relocation of existing bike racks. 2. The applicant proposes to construct a 200 square foot outdoor dining area located along the front of the structure on Marine Avenue. The proposed area is located within the public right-of-way. 3. The subject property is located within the Mixed Use Water Related Zoning District and the General Plan Land Use Element category is Mixed Use Water Related (MU-W2). 4. The subject property is located within the coastal zone. The Coastal Land Use Plan category is Mixed Use Water Related (MU-W). 5. On March 19, 2009, the Planning Commission approved an amendment to Use Permit No. UP2009-002 allowing for the remodel of the restaurant and determining the Use Permit was consistent with the zoning provisions for alcohol sales. Conditions of approval were established to minimize potential impacts from the restaurant operations to the nearby neighborhood. Use Permit No. UP2009-002, as amended, and related conditions of approval shall remain in effect. 6. On December 3, 2015, the Planning Commission considered Use Permit No. UP2015- 006 for a similar request to establish an outdoor dining area. The Use Permit application was accompanied by a request to amend the land use designation at 123 Marine Avenue to accommodate an existing legal nonconforming encroachment of the restaurant structure on that property. Because the action included a legislative action, the City Council was the final decision-making body (GP2015-002, LC2015-001, CA2015-010). The Planning Commission recommended denial of Use Permit No. UP 2015-006 and continued the land use amendment. To allow further consideration and revision of the subject applications, the applicant voluntarily withdrew both applications. 7. A public hearing was scheduled to occur on October 20, 2016 in the Council Chambers located at 100 Civic Center Drive, Newport Beach. A notice of time, place and purpose 19 Planning Commission Resolution No. #### Page 2 of 8 of the public hearing was given in accordance with the Newport Beach Municipal Code (NBMC). At the request of the applicant, the Planning Commission continued the item to its regularly scheduled meeting on November 3, 2016. 8. On November 3, 2016, a public hearing was conducted in the Council Chambers located at 100 Civic Center Drive, Newport Beach. A notice of time, place and purpose of the public hearing was given in accordance with the NBMC. SECTION 2. CALIFORNIA ENVIRONMENTAL QUALITY ACT DETERMINATION. The Planning Commission finds this action is categorically exempt under Section 15303, of the State California Environmental Quality Act (CEQA) Guidelines — Construction or Conversion of Small Structures because the improvements associated with the outdoor dining area are considered accessory to the main structure. The project is also categorically exempt under Section 15302, of the State CEQA Guidelines — Class 2 (Replacement or Reconstruction) on the basis that the land use amendment does not result in new development or change the current use of the property located at 127 Marine Avenue. SECTION 3. REQUIRED FINDINGS. In accordance with NBMC Section 20.52.020(F), the following findings and facts in support of such findings are set forth: Finding: A. The use is consistent with the General Plan and any applicable specific plan; Fact in Support of Finding: 1. The subject property is designated by the General Plan as Mixed Use Water Related. The proposed project is consistent with the MU-W2 land use category, which is intended to provide for marine-related uses including retail, restaurants, and visitor-serving uses with residential on the upper floors because the project consists of an existing restaurant and residential use. Finding: B. The use is allowed within the applicable zoning district and complies with all other applicable provisions of this Zoning Code and the Municipal Code; Facts in Support of Finding: 1. The subject property is located in the Mixed Use Water Related Zoning district. Eating and drinking establishments are permitted within this district subject to the approval of a use permit. 20 Planning Commission Resolution No. #### Page 3 of 8 2. The outdoor dining area is proposed to be approximately 200 square feet in size which does not require parking under Table 3-10 in NBMC Chapter 20.40.040 (Off- Street Parking Spaces Required). Finding: C. The design, location, size, and operating characteristics of the use are compatible with the allowed uses in the vicinity; Facts in Support of Finding: 1. The proposed outdoor dining area is located along Marine Avenue, an active mixed use commercial area with high pedestrian use. Outdoor dining areas are encouraged in mixed use areas as they contribute to the vibrancy of the area. 2. The subject dining area is limited to 200 square feet and extends four (4) feet from the building edge. The sidewalk would is maintained at six (6) feet which is adequate to accommodate pedestrian passage. 3. As conditioned, the outdoor dining area and glass doors will close at 9:00 p.m. or 10:00 p.m., as detailed in Condition of Approval No. 15. 4. As conditioned, the proposed glass doors are double paned (or similar material) to provide improved, noise attenuation, as compared to the existing exterior wall and windows. 5. The existing bike racks in the front of the property will be re-located within the public right of way on the 200 and/or 300 block of Marine Avenue. Finding: D. The site is physically suitable in terms of design, location, shape, size, operating characteristics, and the provision of public and emergency vehicle (e.g., fire and medical) access and public services and utilities; and Fact in Support of Finding: 1. Establishment of the outdoor dining area does not impact public and emergency vehicle access and public services and utilities, as the improvements are limited to a 200 square foot dining area and do not encroach into the roadway. Finding: E. Operation of the use at the location proposed would not be detrimental to the harmonious and orderly growth of the City, nor endanger, jeopardize, or otherwise constitute a hazard to the public convenience, health, interest, safety, or general welfare of persons residing or working in the neighborhood of the proposed use. Facts in Support of Finding: 21 Planning Commission Resolution No. #### Page 4 of 8 1. The project includes conditions of approval to ensure that potential conflicts with surrounding land uses are minimized to the greatest extent possible. Closing the outdoor dining area and the noise attenuated glass doors at 9:00 p.m. daily, except Fridays and Saturdays between Memorial Day weekend and Labor Day, on Federal holidays, and during community events when the outdoor dining area shall close by 10:00 p.m., or prior to commencement of live entertainment will ensure compliance with NBMC Chapter 10.26 (Community Noise Control). 2. An acoustical analysis, prepared by KFEB Acoustics on March 20, 2016, concluded that with the implementation of proposed noise reduction measures the live performances will comply with the City's nighttime noise threshold limit of 50 d BA. 3. Establishment of the outdoor dining area will require that the bike racks be relocated to the 200 and/or 300 blocks of Marine Avenue. Neighboring residents have expressed concerns with noise created by the public loitering near the racks during late hours. Relocation of the racks to a more central location, away from residential uses, should address noise concerns associated with the bike racks. SECTION 4. DECISION. NOW, THEREFORE, BE IT RESOLVED: 1. The Planning Commission of the City of Newport Beach approves Use Permit No. UP2016-012, subject to the conditions set forth in Exhibit A, which is attached hereto and incorporated by reference. 2. This action shall become final and effective fourteen (14) days following the date this Resolution was adopted unless within such time an appeal is filed with the City Clerk in accordance with the provisions of NBMC Title 20 (Planning and Zoning). PASSED, APPROVED, AND ADOPTED THIS 3`d DAY OFNOVEMBER, 2016. AYES: NOES: ABSTAIN: ABSENT: BY: Kory Kramer, Chairman 22 Planning Commission Resolution No. #### Page 5 of 8 BY: Pete Zak, Secretary EXHIBIT "A" CONDITIONS OF APPROVAL PLANNING 1. The development shall be in substantial conformance with the approved site plan, floor plans and building elevations stamped and dated with the date of this approval. (Except as modified by applicable conditions of approval.) 2. Use Permit No. UP2016-012 shall expire unless exercised within twenty-four (24) months from the date of approval as specified in NBMC Section 20.54.060, unless an extension is otherwise granted. 3. The project is subject to all applicable City ordinances, policies, and standards. 4. The applicant shall comply with all federal, state, and local laws. Material violation of any of those laws in connection with the use may be cause for revocation of this Use Permit. 5. This Use Permit may be modified or revoked by the Planning Commission should they determine that the proposed uses or conditions under which it is being operated or maintained is detrimental to the public health, welfare or materially injurious to property or improvements in the vicinity or if the property is operated or maintained so as to constitute a public nuisance. 6. Any change in operational characteristics, expansion in area, or other modification to the approved plans, shall require an amendment to this Use Permit or the processing of a new Use Permit. 7. A copy of the Resolution, including conditions of approval Exhibit "A" shall be incorporated into the Building Division and field sets of plans prior to issuance of the building permits. 8. All noise generated by the proposed use shall comply with the provisions of NBMC Chapter 10.26 and all other applicable noise control requirements in the NBMC. 9. Should the property be sold or otherwise come under different ownership, any future owners or assignees shall be notified of the conditions of this approval by either the current business owner, property owner or the leasing agent. 10. No exterior amplified music, sound system, televisions, outside paging system shall be utilized in conjunction with the outdoor dining area. 2S Planning Commission Resolution No. #### Page 6 of 8 11. The exterior of the business shall be maintained free of litter and graffiti at all times. The owner or operator shall provide for daily removal of trash, litter debris and graffiti from the premises and on all abutting sidewalks within twenty (20) feet of the premises. 12. A Special Events Permit is required for any event or promotional activity outside the normal operational characteristics of the approved use, as conditioned, or that would attract large crowds, involve the sale of alcoholic beverages, include any form of on- site media broadcast, or any other activities as specified in the NBMC to require such permits. 13. To the fullest extent permitted by law, applicant shall indemnify, defend and hold harmless City, its City Council, its boards and commissions, officials, officers, employees, and agents from and against any and all claims, demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever which may arise from or in any manner relate (directly or indirectly) to City's approval of the Village Inn Use Permit including, but not limited to, Use Permit No. UP2016-012. This indemnification shall include, but not be limited to, damages awarded against the City, if any, costs of suit, attorneys' fees, and other expenses incurred in connection with such claim, action, causes of action, suit or proceeding whether incurred by applicant, City, and/or the parties initiating or bringing such proceeding. The applicant shall indemnify the City for all of City's costs, attorneys' fees, and damages which City incurs in enforcing the indemnification provisions set forth in this condition. The applicant shall pay to the City upon demand any amount owed to the City pursuant to the indemnification requirements prescribed in this condition. 14. No more than 16 seats shall be located within the outdoor dining area. 15. The hours of the outdoor dining area shall be limited to 7:00 a.m. to 9:00 p.m. daily, except Fridays and Saturdays between Memorial Day weekend and Labor Day, on Federal holidays, and during community events when the outdoor dining area hours shall be 7:00 a.m. to 10:00 p.m. The outdoor dining area and its noise attenuated glass doors shall close prior to the commencement of live entertainment. Upon closing the outdoor dining area and when live entertainment is offered, the noise attenuated glass doors which access the outdoor dining area shall be closed and no customers shall remain within the outdoor dining area when it is closed. 16. All glass doors which provide access to the outdoor dining area and the door on the south side of the building shall be noise attenuated to a STC rating of 34 per the Acoustical Evaluation and Design Recommendations dated March 20, 2016 by KFEB Acoustics. The effectiveness of the noise attenuation shall be documented in the door specifications and reviewed during the plan check process. 17. Prior to finalizing the building permit for the outdoor dining area, interior acoustical absorption panels shall be installed per the Acoustical Evaluation and Design Recommendations dated March 20, 2016 by KFEB Acoustics. 24 Planning Commission Resolution No. #### Page 7 of 8 18. The assumptions and recommendations presented in the Acoustical Evaluation and Design Recommendations prepared by KFEB Acoustics on March 20, 2016 shall be maintained by the restaurant pertaining to upgrades and maintenance of attenuating materials (i.e., door and window seals). 19. Live entertainment shall be limited to a maximum of four (4) musicians and/or vocalists using amplified instruments and microphones at any one time. 20. The quarterly gross sales of alcoholic beverages shall not exceed the gross sales of food during the same period. The licensee shall at all times maintain records, which reflect separately the gross sales of food and the gross sales of alcoholic beverages of the licensed business. These records shall be kept no less frequently than on a quarterly basis and shall be made available to the Police Department on demand. 21. There shall be no reduced price alcoholic beverage promotions offered by the restaurant after 9:00 p.m. 22. Food service from the regular menu shall be available to patrons up to thirty (30) minutes before the schedule closing time of the restaurant. 23. Prior to occupying the outdoor dining area, the applicant shall obtain an Operator License from the Newport Beach Police Department. A security plan shall be submitted with the Operator License application. Buildinq Division 24. The applicant is required to obtain all applicable permits from the City's Building Division and Fire Department. The construction plans must comply with the most recent, City- adopted version of the California Building Code. The construction plans must meet all applicable State Disabilities Access requirements. Approval from the Orange County Health Department is required prior to the issuance of a building permit. 25. If the abatement period is extended, prior to issuance of building permits for the outdoor dining area, a building permit application shall be filed to address the life safety and structural issues associated with the portion of the restaurant structure which encroaches onto 123 Marine Avenue. 26. If the abatement period is extended, prior to building permit final (certificate of occupancy) of the outdoor dining area, building permits shall be obtained for the portion of the restaurant structure which encroaches onto 123 Marine Avenue. 27. Structural plans shall be required for the expansion of outdoor dining. A building permit shall be required. 28. Wheelchair accessible path of travel to the area to the outdoor dining is required. 25 Planning Commission Resolution No. Ott Page 8 of 8 29. Delineate a wheelchair accessible seat in the outdoor dining area. 30. In addition to the requirements listed above, additional disable access upgrades are required which shall include: the entrance, bar counter, and/or restrooms. Accessible upgrades shall be limited to twenty percent (20%) of the value of the work for outdoor dining. Public Works 31 . The applicant shall obtain an Annual Outside Dining Encroachment Permit from the Public Works Department and pay all applicable fees for the proposed outdoor dining area. 32. This use permit shall not become effective until such time the City Council authorizes the following: a. Waiver of City Council Policy L-21 as it pertains to specific components of the outdoor dining area. Areas for the City Council's consideration is the need to raise the dining area 6-inches above the sidewalk, allowance of a 6-foot wide sidewalk instead of 8-feet, the permanent nature of the guardrails, and the projection of the accordian doors into the right-of-way. b. Relocation of the bike racks or new bike corrals to be installed in the 200 and/or 300 block of Marine Avenue. 33. The applicant shall submit $12,000 to the City of Newport Beach within 30 days of the City Council authorization of the relocation of the bike racks. These funds will be used for the purchase and installation of the bike corrals to accommodate more than 20 bikes and other related improvements. The new bike corrals shall be installed prior to issuance of building permits for the outdoor dining area. 20 Attachment No. PC 3 Resolution Denying Use Permit 27 V� QP �P �g RESOLUTION NO. #### A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH TO DENY USE PERMIT NO. UP2016-012 TO ESTABLISH AN OUTDOOR DINING ASSOCIATED WITH AN EXISTING RESTAURANT AT 127 MARINE AVENUE (PA2015-016) THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS FOLLOWS: SECTION 1. STATEMENT OF FACTS. 1. An application was filed by Dan Miller, with respect to property located at 127 Marine Avenue, and legally described as Balboa Island Sec 4 Lot 15 Blk 1 & Lot 16 Blk 1 Ex E 10 Ft Lots 15 requesting to establish an outdoor dining area associated with an existing restaurant. 2. The applicant proposes to construct a 200 square foot outdoor dining area to be located along the front of the structure on Marine Ave. The proposed area would be located within the public right-of-way. The dining area would displace bike racks which accommodate 20 bikes. 3. The subject property is located within the Mixed Use Water Related Zoning District and the General Plan Land Use Element category is Mixed Use Water Related (MU-W2). 4. The subject property is located within the coastal zone. The Coastal Land Use Plan category is Mixed Use Water Related (MU-W). 5. On March 19, 2009, the Planning Commission approved Use Permit UP2009-002 allowing for the remodel of the restaurant and determining the Use Permit to be consistent with the zoning provisions for alcohol sales. Conditions of approval were established to minimize potential impacts from the restaurant operations to the neighborhood. UP2009-002 and related conditions of approval shall remain in effect. 6. A public hearing was held on October 20, 2016 in the Council Chambers at 100 Civic Center Drive, Newport Beach. A notice of time, place and purpose of the meeting was given in accordance with the Newport Beach Municipal Code. Evidence, both written and oral, was presented to, and considered by, the Planning Commission at this meeting. SECTION 2. CALIFORNIA ENVIRONMENTAL QUALITY ACT DETERMINATION. 1 . Pursuant to Section 15270 of the California Environmental Quality Act (CEQA) Guidelines, projects which a public agency rejects or disapproves are not subject to CEQA review. SECTION 3. REQUIRED FINDINGS. 29 Planning Commission Resolution No. #### Page 2 of 2 The Planning Commission may approve a use permit only after making each of the five required findings set forth in Section 20.52.020.F (Required Findings). In this case, the Planning Commission was unable to make the required findings: 1. The use is consistent with the General Plan and any applicable specific plan; 2. The use is allowed within the applicable zoning district and complies with all other applicable provisions of this Zoning Code and the Municipal Code. 3. The design, location, size, and operating characteristics of the use are compatible with the allowed uses in the vicinity; 4. The site is physically suitable in terms of design, location, shape, size, operating characteristics, and the provision of public and emergency vehicle (e.g., fire and medical) access and public services and utilities; and 5. Operation of the use at the location proposed would not be detrimental to the harmonious and orderly growth of the City, nor endanger, jeopardize, or otherwise constitute a hazard to the public convenience, health, interest, safety, or general welfare of persons residing or working in the neighborhood of the proposed use. SECTION 4. DECISION. NOW, THEREFORE, BE IT RESOLVED: 1. The Planning Commission of the City of Newport Beach hereby denies Conditional Use Permit No. UP2016-012. 2. This action shall become final and effective 14 days following the date this Resolution was adopted unless within such time an appeal is filed with the City Clerk in accordance with the provisions of Title 20 Planning and Zoning, of the Newport Beach Municipal Code. PASSED, APPROVED, AND ADOPTED THIS 3`d DAY OF NOVEMBER, 2016. AYES: NOES: ABSTAIN: ABSENT: BY: Kory Kramer, Chairman BY: Pete Zak, Secretary 03-03-2015 so Attachment No. PC 4 Revised Site Plan 31 V� QP �P Hearing Officer - October 17, 2016 - Item No. 1f: Additional Materials (Applicant) - (PA2016-133) NO. 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E STO ^ I (E)DISHWASHING — J ����><�' �> I � , I (E) PROPERTY LINES r1— J iU i 1 w �2 (E) SIDEWALK Z \ z LI_ J Q �3 ROOF OVERHANG ABOVE Z (0 LF � ® TABLES AND CHAIRS, TYP. ALL OUTDOOR PATIO AREA (q N E WO N E STOR. LI_ J <' PATH OF TRAVEL, 1:12 MAX. SLOPE W Z w L <� ^> Q LU Z Z O i / z r J w Z n < >< � > (E)KITGHEN o — LU— (E)DIBHWASHING E MEN j� ¢ o I� 5TA� AN-T CC N ¢ L D CL ^ n Q C, L J (E)RE5TAURANT 3061 5F W Q < >< > < oo >< \ > 'D g (E)KITCHEN 466 5F = m TRAS (E)GOOLER O �< oo �</'>> �<��>< '>> I I (E)OFFIGE 118 SF U g >< 3 (E)BTORAGE �O� SF EXIT DOOR �� TOTAL 4352 SF (E)GOOKLIINE (E)WOMEN D a' ' NEW PATIO 200 5F I GASKETS,5KET5,ETC. EXIT 5 _ 5It;� NTIAL o (E)FOOD PREP. O L o n (E)APT A (E)STORAGE ' BOVE REST. 12495F2 — — m TOTAL 1249 5F IvL 0(E)HALLWAY (E)GOOLER 1 +' LOT AREA I 5'-2" 12R MARINE AVE. 4475 5F J I (E)FREEZER LU ccaZ 5EA71 N6; 00 < O � �WEST DINING ROOM 42 SEATS ^ I 14'-IIYz" 5'-2" 2q'-d✓z" 6'-I" J 1.� EAST DINING ROOM '74 SEATS LL W M BAR 25 5EAT5 1� LOi NEW PATIO 16 SEATS TOTAL 15'7 SEATS (E)GARAGE W/ 2ND _ W J STORY APARTMENT LL Z LL ABOVE Tt I UP DATE: 8/29/16 DRAWN BY: TRUAXI PROJECT NO. THE VILLAGE INN I FI: IR5T �EL--O® FLAN SHEET I L — dI- O SCALE: I/4"=1'-0" \\II D A 2 �l O 0 0 0 0 0 0 O JAY A.TRUAX,expressly reserves its common law copyright and other property rights in these plans.These plans are not to be reproduced,changed or copied in any farm or manner whatsoever,nor are they to be assigned to any third party,without first obtaining the express written permission and consent of JAY A.TRUAX. �� Planning Commission - November 3, 2016 Item No. 3a Additional Materials Received The Village Inn Outdoor Dining Use Permit (PA2015-016) Subject: FW:Village Inn, Balboa Island Attachments: DOC_00234.pdf From: Larry Tucker [mailto:Tucker@GTPCenters.coml Sent: Monday, October 31, 2016 10:50 AM To: Kramer, Kory Cc: Wisneski, Brenda Subject: Village Inn, Balboa Island Dear Chairman Kramer, I own a house in the 100 block of The Grand Canal on Little Balboa Island near the Park Avenue Bridge. I have reviewed the staff report for the outdoor seating proposal by the Village Inn. I support the proposal. It will make the space more attractive to Island residents,thereby encouraging residents to (walk to and) support this local business. As a land use proposition, which is the Commission's domain, I believe the use will be compatible with its surrounds due to the conditions of approval. All commercial property uses are required to comply with the City's noise regulations,so denial of the Village Inn application based upon speculation that the use may be in violation of the noise ordinance is not reasonable. The Village Inn has to comply with the noise ordinance and the ramification of not doing so is a code enforcement action, not denial of a valid use at the outset. Lastly,those in our city who have chosen to live next to commercial districts should realize that part of that choice is the possibility of occasional inconvenience. I sat through countless hearings dealing with that conflict over my 11 years on the Commission. Commercial uses change over time to meet market demands, and as long as those uses comply with the rules,they should be accommodated. And the City should enforce those rules. Please have this email distributed to the rest of the Commission. Thank you for your service. Best regards, Larry Tucker P.S. I have attached a couple of suggested edits to the Resolution that I noticed. 1 Planning Commission - November 3, 2016 Item No. 3a Additional Materials Received The Village Inn Outdoor Dining Use Permit (PA2015-016) Planning Commission Resolution No. #tl#l# Page 3 of 9 2. The outdoor dining area is proposed to be approximately 200 square feet in size which does not require parking under Table 3-10 in NBMC Chapter 20.40.040 (Off- Street Parking Spaces Required). Finding: C. The design, location, size, and operating characteristics of the use are compatible with the allowed uses in the vicinity,- .. Facts in Support of Finding: 1. The proposed outdoor dining a is locate/along ine Avenue, an active mixed use commercial area with igh pedestrOutdoor dining areas are encouraged in mixed use ar,6as as they cone vibrancy of the area. 2. The subject dining area isAmited to 200 sqnd extends four (4) feet from the building edge. The#sidewalk would;js-I�aintained at six (6) feet which is adequate to accommodate pedestrian passage. 3. As conditioned, the outdoor dining area and glass doors will close at 9:00 p.m. or 10:00 p.m., as detailed in Condition of Approval No. 4415. 4. As conditioned, the proposed glass doors are double paned (or similar material) to provide improved, noise attenuation, as compared to the existing exterior wall and windows. 5. The existing bike racks in the front of the property will be re-located tem designated n 1. e 200 and/or 300 block of Marine Avenue. Finding: D. The site is physically suitable in terms of design, location, shape, size, operating characteristics, and the provision of public and emergency vehicle (e.g., fire and medical) access and public services and utilities; and Fact in Support of Finding: 1. Establishment of the outdoor dining area does not impact public and emergency vehicle access and public services and utilities, as the improvements are limited to a 200 square foot dining area and do not encroach into the roadway. Finding: E. Operation of the use at the location proposed would not be detrimental to the harmonious and orderly growth of the City, nor endanger,jeopardize, or otherwise constitute a hazard to the public convenience, health, interest, safety, or general welfare of persons residing or working in the neighborhood of the proposed use. Facts in Support of Finding: P Planning Commission - November 3, 2016 Item No. 3a Additional Materials Received The Village Inn Outdoor Dining Use Permit (PA2015-016) Planning Commission Resolution No. ##" Page 7 of 9 12. A Special Events Permit is required for any event or promotional activity outside the normal operational characteristics of the approved use, as conditioned, or that would attract large crowds, involve the sale of alcoholic beverages, include any form of on- site media broadcast, or any other activities as specified in the NBMC to require such permits. 13. To the fullest extent permitted by law, applicant shall indemnify, defend and hold harmless City, its City Council, its boards and commissions, officials, officers, employees, and agents from and against any and all claims, demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever which may arise from or in any manner relate (directly or indirectly) to City's approval of the Village Inn Use Permit including, but not limited to, Use Permit No. UP2016-012. This indemnification shall include, but not be limited to, damages awarded against the City, if any, costs of suit, attorneys' fees, and other expenses incurred in connection with such claim, action, causes of action, suit or proceeding whether incurred by applicant, City, and/or the parties initiating or bringing such proceeding. The applicant shall indemnify the City for all of City's costs, attorneys' fees, and damages which City incurs in enforcing the indemnification provisions set forth in this condition. The applicant shall pay to the City upon demand any amount owed to the City pursuant to the indemnification requirements prescribed in this condition. 14. No more than 16 seats shall be located within the outdoor dining area. 1.4:-------The hours of the outdoor dining area shall be limited to the glass door-& whiGh aGGes6 the area rhaU be Nosed +fit''-f-� "ter- Sunday to A Faday 7:00 a.m. to 9:00 p.m. Summer, Weekends 644day daily. except Fridays and SatuFday), of jud 15. Saturdays between Memorial Dav weekend and Labor Dav on Federal holidays, and during communitv events when the outdoor dining area hours shall be 7:00 a.m. to 10:00 p.m. The outdoor dining area akraA be rIssedand its noise attenuated glass doors shall close prior to the commencement of live entertainment. Upon closing the outdoor dining area and when live entertainment is offered, whish ray the noise attenuated glass doors which access the outdoor dining area shall be closed and no customers shall remain within the outdoor dining area when it is closed. 16. -T-heAH glass doors, which provide access to the outdoor dining area; and the door on the south side of the building shall be noise attenuated.- to a STC rating of 34 per the Acoustical Evaluation and Desiqn Recommendations dated March 20, 2016 by KFEB Acoustics. The effectiveness of the noise attenuation nWshall be documented in the door specifications and reviewed during the plan check process. 13 Planning Commission - November 3, 2016 Item No. 3b Additional Materials Received The Village Inn Outdoor Dining Use Permit (PA2015-016) Subject: FW: UP2016-012/123 and 127 Marine Avenue Attachments: CITY PLANNING COMMISSION LETTER 11-1-2016.pdf From: Kristina Kropp [mai Ito:kkropp(alunaglushon.com] Sent: Tuesday, November 01, 2016 11:09 AM To: Wisneski, Brenda Cc: Rob Glushon Subject: UP2016-012/123 and 127 Marine Avenue Hi again Brenda, Please find attached for the Commissioners' consideration and for the file further correspondence regarding the proposed CUP to allow an outdoor dining area in front of the Village Inn. Thanks! Kristina Kristina Kropp, Esq. Luna & Glushon 16255 Ventura Boulevard, Suite 950 Encino, California 91436 Telephone (818)907-8755 Fax (818) 907-8760 Century City Office 1801 Century Park East, Suite 2400 Los Angeles, California 90067 ----------------------------------------- This email contains information from the Law Offices of Luna & Glushon which may be confidential or protected by the attorney-client privilege and/or the work product doctrine. If you are not the intended recipient, any review, reliance, copying, disclosure, distribution or other use of information contained herein is prohibited. If you are not the intended recipient, please contact the sender and delete the original, all copies, and any attachments. 1 Planning Commission - November 3, 2016 Item No. 3b Additional Materials Received The Village Inn Outdoor Dining Use Permit (PA2015-016) LUNA & GLUSHON ATTORNEYS 16255 VENTURA BOULEVARD,SUITE 950 Century City Office ENCINO,CALIFORNIA 91436 1801 Century Park East,Suite 2400 TEL:818-907-8755 Los Angeles,CA 90067 FAX: 818-907-8760 November 1, 2016 VIA EMAIL Planning Commission of the City of Newport 100 Civic Center Drive Newport Beach, CA 92662 Re: Conditional Use Permit UP2016-012 Village Inn Honorable Commissioners: Our law firm represents Marine Avenue Neighbors ("Residents") a coalition of residents in the immediate vicinity of the Village Inn who are the most directly impacted by the proposed Conditional Use Permit ("CUP") to allow a 240-square-foot outdoor dining area within the public right of way ("Project"). As set forth below, the Residents are strongly opposed to the Project which would cause adverse noise impacts on the surrounding neighborhood; is in conflict with City Council Policies L-21 and L-6; and fails to comply with the California Environmental Quality Act ("CEQA"). 1. The Project would Result in Adverse Noise Impacts on the Surrounding Residential Neighborhood and is not Supported by Substantial Evidence As the Commissioners are aware, this very request was made by the Applicant in 2015 (PA2015-016), and was opposed by the majority of the Commissioners, in major part due to the adverse noise impacts that it would create on the immediately adjacent residential neighborhood (see Staff Report, Attachment PC 3, Planning Commission Meeting Minutes, December 3, 2015). Planning Commission - November 3, 2016 Item No. 3b Additional Materials Received The Village Inn Outdoor Dining Use Permit (PA2015-016) Planning Commission of the City of Newport November 1, 2016 Page Two The Residents have not had an opportunity to obtain independent, expert review of the noise study submitted by the Applicant. However, even the Applicant's own noise study confirms that all of the currently measured outside noise levels at the Village Inn exceed the allowable noise impacts at residential land uses under the City's noise regulations, and are almost at the limit of allowable noise levels allowed from live entertainment on the public sidewalk. Moreover, the noise study provides absolutely no data for the anticipated increase in noise levels caused by the proposed outdoor dining! Simply stated, how do current noise levels in any way indicate the noise levels that will occur if the CUP is approved? What's more, there is no data provided regarding the potential noise levels from sidewalk dining both inside and outside the homes of adjacent residential homeowners. The Applicant's noise study simply cannot address the potential impacts on adjacent residential uses without also providing the levels at such properties. The reality is that there would be a significant increase in noise on the adjacent residential uses caused by patrons dining, drinking and partying on the public sidewalk abutting the Village Inn. The Applicant's noise study fails to address these impacts. It also cannot be over-emphasized that there are no other sidewalk outdoor dining uses in Newport Beach in a residentially zoned area. A grant of the within CUP would set a bad precedent which puts the economic interest of one commercial property owner above the rights of other adjacent residential property owners. As a matter of law, all of the findings for the proposed CUP also cannot be made with substantial supporting evidence: i. The use is not consistent with the General Plan and any applicable specific plan; The restaurant property at 127 Marine Avenue is designated as Mixed Use Water Related (MU-W2) by the Land Use Element of the General Plan, Coastal Land Use Plan (CLUP) and Zoning Code. Planning Commission - November 3, 2016 Item No. 3b Additional Materials Received The Village Inn Outdoor Dining Use Permit (PA2015-016) Planning Commission of the City of Newport November 1, 2016 Page Three Even without the outdoor dining, operation of the restaurant includes an illegal encroachment into residentially zoned property, an encroachment that has caused and continues to cause severe impacts onto the neighborhood, including unabated noise impacts.1 This unpermitted portion of the Village Inn encroaches onto 123 Marine Avenue which is zoned Two-Unit Residential, Balboa Island (R- BI). Outdoor commercial dining areas are not consistent in this zoning designation. The Applicant cannot simply pick and choose which"parts" of this Project are consistent, and which are not, with the General Plan. Because the encroachment is not consistent with the zoning designation on which it is located, this finding cannot be made with substantial evidence. ii. The use is not allowed within the applicable zoning district and does not comply with all other applicable provisions of this Zoning Code and the Municipal Code; Again, the Project includes an addition to the restaurant which encroaches onto 123 Marine Avenue, property which is zoned residential, and therefore is not allowed within such zoning district. Additionally, under Newport Beach Municipal Code sec. 19.04.035, structures which cross a property line, like the within encroachment, are illegal. As set forth below, the Project also blatantly violates City Council Policies L-21 and L-6. For all of these reasons, a finding that the proposed use is allowed within the applicable zoning district and complies with all other applicable provisions and the intent of the Zoning Code and the Municipal Code cannot be made nor supported with substantial evidence. 1 Although staff previously issued a determination that the encroachment was "legal non-conforming;' such determination is contrary to clear California law which requires evidence that such non-conforming structure or use was legally permitted at some prior point in time. No such evidence exists. Staff's determination is based on disingenuous assumption that based on the existence of the encroachment since 2001 (shown on a Village Inn building permit application that year), the City lost the prior permit records! A copy of our letter dated October 14,2016 letter to the Hearing Officer in PA2016-133,is also being provided to the Commission. Even at the hearing on Applicant's request to extend the non-conforming use for 10 years, there was no evidence presented that the encroaching non-conforming use was ever legal either in 2001 or at any time. Planning Commission - November 3, 2016 Item No. 3b Additional Materials Received The Village Inn Outdoor Dining Use Permit (PA2015-016) Planning Commission of the City of Newport November 1, 2016 Page Four iii. The design, location, size, and operating characteristics of the use are not compatible with the allowed uses in the vicinity Outdoor dining on a sidewalk with the resulting noise are clearly not compatible with the adjacent residential uses. Residents are already subjected to significant noise impacts by the existing restaurant use. iv. The site is not physically suitable in terms of design, location, shape, size, operating characteristics, and the provision of public and emergency vehicle (e.g., fire and medical) access and public services and utilities; and v. Operation of the use at the location proposed would be detrimental to the harmonious and orderly growth of the City, and would endanger, jeopardize, or otherwise constitute a hazard to the public convenience, health, interest, safety, or general welfare of persons residing or working in the neighborhood of the proposed use. The proposed use is not just adjacent to residentially zoned properties, it actually physically encroaches onto residentially zoned property, as set forth above. As evidenced by the vehement neighborhood opposition in 2015, and today, the restaurant, as a result of such location, causes severe and un-abatable noise impacts on the surrounding neighbors. It is the Applicant's duty and responsibility to operate its business in a lawful and respectful manner. If there is evidence of noise impacts from the existing use, the City should not allow an expanded use on a public sidewalk to make such noise impacts even worse. It simply cannot be contested that allowing outdoor dining will further exacerbate the already existing adverse noise impacts on the surrounding residential neighborhood. Undoubtedly, for this very reason, there are no other sidewalk outdoor dining uses in Newport Beach in a residentially zoned areas such as this. Again, a grant of the within CUP would set a bad precedent which puts the economic interest of one commercial property owner above the rights of all adjacent residential property owners. The Applicant purchased the subject property with full knowledge of the legal restrictions on its use and adjacent to a residential neighborhood. Planning Commission - November 3, 2016 Item No. 3b Additional Materials Received The Village Inn Outdoor Dining Use Permit (PA2015-016) Planning Commission of the City of Newport November 1, 2016 Page Five 2. The Project Violates the City Council Policies L-21 and L-6 Pursuant to City Council Policy L-6, structural encroachments which encroach in excess of 1 foot into the public right-of-way, or exceed 3 feet in height, are prohibited. Here, the Applicant proposes both a six inch riser and a permanent rail. These encroachments, when taken together, exceed three feet in height and are, therefore, prohibited. Pursuant to City Council Policy L-21, outdoor dining areas must be maintained at the same level as the sidewalk, a minimum pedestrian path of eight feet is required to protect public safety z permanent guard rails are not allowed, and projections into the right of way are disallowed. The entirety of the Applicant's proposed raised outdoor dining area violates these provisions. The Applicant has provided no justification whatsoever for why these policies should not and cannot be strictly complied with. The City must protect the safety and rights of all adjacent residential property owners by requiring compliance with City Council Policies L-21 and L-6. 3. A Categorical Exemption from the California Environmental Quality Act is not appropriate. Staff's recommendation that this highly impactful Project is exempt from any environmental review under a Class 3 Categorical Exemption for Construction or Conversion of Small Structures under the California Environmental Quality Act ("CEQA") is error as a matter of both law and fact. Class 3 exemptions cannot be used where environmental impacts of a proposed Project are more significant than under current circumstances. Voices for Rural Living v. El Dorado Irr. Dist. (2012) 209 Cal.AppAth 1096 (categorical exemption for small construction projects did not apply to irrigation district's agreement to provide water to casino because the project would provide more water than previously, and therefore posed significant environmental effects). As set forth above, the already existing noise impacts emanating from the inside of the Village hm will be significantly increased as a result of patrons dining and 2 City Council Policy L-21 specifically provides that the minimum horizontal clearance requirement is necessary "to protect public safety." This public policy concern far outweighs the Applicant's economic desire to expand his business. Planning Commission - November 3, 2016 Item No. 3b Additional Materials Received The Village Inn Outdoor Dining Use Permit (PA2015-016) Planning Commission of the City of Newport November 1, 2016 Page Six partying outside, on a public sidewalk adjacent to residential uses. The very fact that Applicant was asked to submit a "Noise Study' (albeit flawed) is fatal to defending a Categorical Exemption. Furthermore, Class 3 exceptions are qualified by consideration of where the project is to be located - a project that is ordinarily insignificant in its impact on the environment may, in a particularly sensitive environment, be significant. Therefore, a Class 3 exemption is not appropriate where it may impact an environmental resource of hazardous or critical concern where designated, precisely mapped, and officially adopted pursuant to law by federal, state, or local agencies. (CEQA Guidelines §15300.2(a)). Here, the proposed Project (proposed outdoor dining - a commercial use), must be qualified by the consideration of where it is located, a residential neighborhood, as so zoned/mapped by the City of Newport Beach. Because the City's zoning/mapping of the residential zone excludes uses such as outdoor dining as a result of its adverse effects on residential properties, including noise, the within Class 3 Exemption is not appropriate because it will impact the residential neighborhood. Moreover, CEQA prohibits use of a categorical exemption where "there is a reasonable possibility that the activity will have a significant effect on the environment due to unusual circumstances." (CEQA Guidelines §15300.2(c)). The "unusual circumstances" exception is established without evidence of an environmental effect upon a showing that the project has some feature that distinguishes it from others in the exempt class, such as its size or location. In such a case, to render the exception applicable, the party need only show a reasonable possibility of a significant effect due to that unusual circumstance. See Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086. Here, the encroachment into residentially zoned property is the feature of the Project that distinguishes it from others in the exempt class. The intent and purpose of Class 3 exemptions is not to allow projects which are inconsistent with the zoning designation on which they are built, but rather to allow construction/modification of small structures which comply with all zoning and building codes. Undoubtedly, this unusual circumstance of the Project causes adverse and disproportionate impacts, such as noise, onto the residential community surrounding it, impacts which would not be as severe if the use was appropriately confined to commercially zoned land. Therefore, the existence of the commercial encroachment on residentially zoned property distinguishes the Planning Commission - November 3, 2016 Item No. 3b Additional Materials Received The Village Inn Outdoor Dining Use Permit (PA2015-016) Planning Commission of the City of Newport November 1, 2016 Page Seven Project from others in the exempt class, and the use of the within Categorical Exemption is not appropriate. Accordingly, a Class 3 Categorical Exemption is inappropriate and the Project must undergo environmental review in full compliance with CEQA. For all of the reasons set forth above, the Residents request that the Coirunission deny the proposed Project and CUP. Very truly yours, LUNNAA & GLUSHON ROBERT L. GLUSHON Planning Commission - November 3, 2016 Item No. 3c Additional Materials Received The Village Inn Outdoor Dining Use Permit (PA2015-016) Subject: FW:Village Inn From: Wisneski, Brenda Sent: Tuesday, November 01, 2016 4:08 PM To: 'Kristen Gunther' Cc: Biddle, Jennifer Subject: RE: Village Inn Thank you Kristen, Your correspondence will be forward to the Planning Commission and included in the public record. Brenda.Wisneski,AICP Deputy Community Development Director (949) 644-3297 City of Newport Beach Phmnim Division 100 Qvic Center Drive I Newport Beach,CA 92660 A responsive,knowledgeable team ofprofes onalegu&wconununity developmentin the public averest. From: Kristen Gunther [mailto:kristenmicheleturner(clyahoo.coml Sent: Tuesday, November 01, 2016 4:06 PM To: Wisneski, Brenda Subject: Village Inn Dear Brenda, My name is Kristen Turner and I am writing to you because unfortunately I will not be able to attend the Planning Commission hearing this week to show my support for the addition of outdoor dining at the Village Inn. As a Marine Avenue resident the last 8 years, I can say from firsthand experience that the Village Inn is such a valuable asset to Balboa Island. My husband and I have been frequent guests over the years, especially under the ownership of Dan Miller who has made countless improvements to our beloved Island institution. From the servers that greet us by name to the chef who has seriously raised the bar on dining for the Island, not to mention the support they offer to the community, the Village Inn has put a lot of thought into how to make a good Balboa Island business a great one. Like many other Orange County residents, I would love to see my favorite restaurant be able to offer us outdoor dining to further elevate the establishment as a place where locals can enjoy the benefits of life on the beach! After all, I think that is why any Balboa Island Resident chooses to live on the Island :) My apologies I can't say all of this in person on Thursday but should you like any further input, please do not hesitate to reach out! t Planning Commission - November 3, 2016 Item No. 3c Additional Materials Received Warm personal regards, The Village Inn Outdoor Dining Use Permit (PA2015-016) Kristen and Brett Turner 949-212-0836 z Planning Commission - November 3, 2016 Item No. 3d Additional Materials Received The Village Inn Outdoor Dining Use Permit (PA2015-016) Subject: FW:Village Inn 2016-11-02 Requested changes to conditions of approval Attachments: 2016-11-02 Requested changes to conditions of approval.docx;ATT00001.htm From: Carol McDermott rmailto:carol(aentitlementadvisors.comj Sent: Wednesday, November 02, 2016 3:26 PM To: Wisneski, Brenda Cc: Dan Miller; Julie Cavanaugh Subject: Fwd: 2016-11-02 Requested changes to conditions of approval Brenda: Please see the changes we will be requesting to Condition # 33 for the Village Inn. We will appreciate this being distributed to the Planning Commission for their consideration. I will also be discussing it in my applicants' presentation to the Commission. Thank you. cmmc Carol Mentor McDermott,AICP Principal Entitlement Advisors Track Record +Team +Tenacity 5000 Birch, Suite 400 East Tower Newport Beach, CA 92660 (949) 717-7939, office (949)422-2303, cell (949) 209-2045, fax carol@entitlementadvisors.com t Planning Commission - November 3, 2016 Item No. 3d Additional Materials Received The Village Inn Outdoor Dining Use Permit (PA2015-016) The applicant shall submit$12,000 to the City of Newport Beach within 30 days of the effective date of the City Council authorization of the relocation of the bike racks.These funds will be used for the purchase and installation of the bike corrals to accommodate more than 20 bikes and other related improvements.The new bike corrals shall be installed prior to issuance of building permits for the outdoor dining area, and in any event, within 120 days of the effective date of the City Council action on the waiver of Policy L-21 Planning Commission - November 3, 2016 Item No. 3e Additional Materials Received The Village Inn Outdoor Dining Use Permit (PA2015-016) Subject: FW: Support for the Villae Inn - Balboa Island From: Jim Parkhurst [mailto:iamprk3@aol.com] Sent: Wednesday, November 02, 2016 5:42 PM To: Wisneski, Brenda; danvibdt@pmail.com Cc: carol@entitlementadvisors.com Subject: Support for the Villae Inn - Balboa Island This is Jim Parkhurst, and my wife Phyllis and I have lived at 107 Opal Avenue on Balboa Island since purchasing this house in July, 1999. 1 am in full support of enhancing the Village Inn for the benefit of other Balboa Island residents. We have dinner and listen to the entertainment there at least once a week and utilize the VI when we have visiting guests, which is quite frequent. Even though my house sits directly under the pathway of airplanes taking off from John Wayne Airport, it's inappropriate for me to complain since that situation existed prior to me purchasing my house. Likewise, any resident who purchased their house after the Village Inn was established has no right to complain. James E. Parkhurst 107 Opal Avenue Balboa Island, CA 92662 P.S. Phyllis and I plan to attend the Planning Commission Meeting at the Newport Beach City Hall tomorrow evening. t Planning Commission - November 3, 2016 Item No. 3e Additional Materials Received The Village Inn Outdoor Dining Use Permit (PA2015-016) From: Wisneski, Brenda Sent: Thursday, November 03, 2016 7:28 AM To: 'Todd Keller' Cc: Biddle, Jennifer Subject: RE: Outdoor Dining -Village Inn Thank you for your comments. Your correspondence will be forwarded to the Planning Commission and included in the public record. Enjoy your birthday!! Brenda Wisneski From: Todd Keller rmailto:tmk33C1me.com] Sent: Wednesday, November 02, 2016 7:38 PM To: Wisneski, Brenda Subject: Outdoor Dining -Village Inn Mr. Chairman and Members of the Planning Commission: I wanted to let you know of my support for outdoor dining at the Village Inn. This hearing could not have come at a more inconvenient time. Normally, I would have planned on attending,but November 3rd, 2016 is my 50th birthday so I am hoping this email will demonstrate my conviction that outdoor dining is right for this Balboa Island institution. My wife and I have owned 1305 Park Avenue for over 4 years. We both stay in this home and also rent it occasionally for vacation renters from all over the world. In the 4+years we have owned the home directly next door to the Village Inn we have never had any issues or problems with the restaurant. Shannon, myself and our tenants have had a very positive impression of the restaurant and have eaten there often over the years with very favorable reviews. Even though they have live music the noise has never been an issue and in fact we have never even heard the music. You can even walk by the restaurant when the doors are closed and you cannot even hear the live music. (Which is still unbelievable to me) I know the owners have gone to great lengths to make sure the noise level is not an issue to the neighboring homes. (None of which are closer then ours). They have done an outstanding job controlling the noise level and I feel as though they have been very thorough in making sure any changes do not negatively impact the neighborhood. Dan is an upstanding and outstanding businessman and I truly believe he has the best interest of the community in mind in every change he makes to the restaurant. We are very thankful that Dan owns the Village Inn as he has greatly improved the restaurant and its reputation. Again, I only wish I could be there tonight to support their efforts and speak on their behalf about his integrity as a neighbor and a businessman as well as his desire to improve our community. Please give your favorable consideration to this request. i Planning Commission - November 3, 2016 Item No. 3e Additional Materials Received The Village Inn Outdoor Dining Use Permit (PA2015-016) Todd Keller Owner 1305 Park Avenue Balboa Island, Ca 92662 213-500-0505 2 Planning Commission - November 3, 2016 Item No. Y Additional Materials Received The Village Inn Outdoor Dining Use Permit (PA2015-016) From: Mike Sullivan <sullivanphoto@roadrunner.com> Sent: Thursday, November 03, 2016 8:56 AM To: Kramer, Kory; Dunlap, Bill; Koetting, Peter, Hillgren, Bradley; Lawler, Ray;Weigand, Erik,Zak, Peter, Biddle,Jennifer; Campagnolo, Daniel Cc: Peter Bergman; Suzanne Savary;Jacobs, Carol;Wisneski, Brenda Subject: Village Inn Good Morning, Gentlemen, My name is Mike Sullivan. I live at 121 Marine Avenue. As you know, The owners of the Village Inn are asking you to grant them outdoor dining privileges immediately adjoining residential properties, which are located in a residential zone. It has come to our attention that this combination does not exist anywhere in our city, NOT ONE SINGLE PLACE. To approve this application would be to set a very chilling precedent for every homeowner in town. This application is being presented to you pursuant to City Council policy L-21, which defines outdoor dining on the public right of way. This planned structure, however is specifically prohibited by City Council Policy L-6. (which is not mentioned in staff's report) Both of these policy sections stress portability and removability of furniture and barriers on the public right of way. This would be of paramount importance in emergencies or cases such as a permit revocation, thus retaining the sidewalk's ability to resume right of way status. But this application requests much more than dining privileges on the public sidewalk. They seek to build a permanent structure on that public sidewalk. Permanent structures on the public right of way are specifically prohibited by City Council policy L-6. And this is no small structure. It's 200 square feet of raised concrete, higher than a city curb, surrounded by a permanent fifty-foot wrought iron fence permanently attached to the building. When you construct a raised permanent structure on the public sidewalk, it's no longer a public sidewalk. It can't even be returned to sidewalk status by removing the fence. These inescapable facts negate the very description of this application in the staff report, which cites L-21 as the basis for the application. Instead, this is a permanent structural addition to the building itself, using eight tons of concrete to increase the floor space of the bar. The proposed doors are so wide that the entire interior is open from the bar to the street as if there were no wall. Passersby, young and old, will have unobstructed viewing and hearing from the sidewalk to the huge circular bar and interior. This is not just open air dining for a few, as 1 Planning Commission - November 3, 2016 Item No. 3f Additional Materials Received described by staff. This is an open air sports1hW11iltp9@ihnic s� �I3pI1�iftNS18a4 � hliitM62015-016) neighborhood like a perfectly shaped megaphone. And even if this were sidewalk dining as defined in L-21, the proposed structure would still be specifically prohibited by City Council policy L-6 because of its permanence, not to mention its sheer size and mass. Staff does not mention this illegality or even the specific policy section that prohibits it. Instead they call them "areas of consideration' for a possible waiver under section L-21. Such a waiver would never happen even if were sidewalk dining, which it is not. But just for the sake of argument, if a waiver were to be asked for, it would be the applicant's job to do so -- later in an appeal. The planning Commission's job as I see it is not to guess the outcome of a possible appeal, or predict, or wish for such a waiver, or punt it to the council. Your job as I see it is to recognize (or not) the illegality of the proposed structure, and vote accordingly. Conclusion: City Council policy L-6 prohibits a permanent structure encroaching onto the public right of way. And that's assuming it meets the description of outdoor dining on the public right of way in the first place, which this structure does not. In actuality, this structure is a permanent addition the the building. But please don't reject this application for just this one reason. My neighbors have given you many, many good reasons to reject this proposal based on the sheer unfairness of it. And of course because it's just so close to our homes! Please think of my neighbors and my family as human beings who just want to live in peace and quiet in our own homes. That's all we've been asking for -- for four years now. Thank you, Mike Sullivan 2 Planning Commission - November 3, 2016 Item No. 3g Additional Materials Received The Village Inn Outdoor Dining Use Permit (PA2015-016) From: Wisneski, Brenda Sent: Thursday, November 03, 2016 11:14 AM To: 'Beaconservice@aol.com' Cc: Biddle, Jennifer Subject: RE: SUPPORT FOR THE VILLAGE IN EXPANSION Thank you. Your comments will be forwarded to the Planning Commission and included in the public record. Brenda Wisneski,AICP Deputy Commiuiity Development Director (949) 644-3297 City of Newport Beach Planning Division 100 Civic Center Drive I Newport Beach,CA 92660 Are pcvzaw Anowkdgeable tram ofprofessionalsguidingcoutmunitydevelopmentin the pubhcinterest. From: Beaconservice(aaol.com [mailto:Beaconservice((Daol.com] Sent: Thursday, November 03, 2016 10:38 AM To: Wisneski, Brenda; danvibdt(alomail.com Cc: carol@entitloementadvisors.com Subject: SUPPORT FOR THE VILLAGE IN EXPANSION I am a long time resident of Balboa Island, and I urge you to vote in favor of the expansion for the Village Inn. It is the one place we have to enjoy talent, good times with friends from the area, and those that visit our lovely island. Balboa deserves to have a place like this. This patio expansion would enhance what the VI is already doing right! We compete with Laguna Beach, Corona de Mar, Costa Mesa, all that have venues to enjoy, but we shouldn't have to leave our Island to do so. PLEASE VOTE FOR THE EXPANSION! Thank you. Phyllis Parkhurst 107 Opal Ave Balboa Island, CA 92662 1 Planning Commission - November 3, 2016 Item No. 3g Additional Materials Received The Village Inn Outdoor Dining Use Permit (PA2015-016) Subject: FW:The village Inn Balboa Island From: Tommy Crosson [mailto:tecrosson@aol.com] Sent: Thursday, November 03, 2016 11:53 AM To: bwisneski@newoortbeachca.gov. Cc: carol@entitlementadvisors.com Subject: The village Inn Balboa Island The owners are implementing many new features to upgrade and enhance an 80-year old Balboa Island institution. The completion of the patio at the Village Inn will create a warm and inviting ambiance, enhancing the area and will be welcomed by locals and visitors alike. Please plan on attending the Public Hearing of the Newport Beach Planning Commission and showing support for outdoor dining at the Village Inn. Thursday, November 3rd at 6:30pm we have our Planning Commission hearing at the City of Newport Beach, 100 Civic Center Drive. Thank you. Tommy Crosson tecrosson(cDaol.com 1 Planning Commission - November 3, 2016 Item No. 3h Additional Materials Received The Village Inn Outdoor Dining Use Permit (PA2015-016) Subject: FW:Village Inn - Outdoor Dining From: David Manser [mailto:davidmanser(a)icloud.com] Sent: Thursday, November 03, 2016 1:05 PM To: Wisneski, Brenda Cc: danvibdt@omail.com Subject: Village Inn - Outdoor Dining Brenda, As residents of Balboa Island, we enjoy the community feel that the island embodies. A big portion of that community feel is Marine Street and the many businesses that make the island a fun place to live. We enjoy walking the island, and we especially enjoy having the various businesses that occupy Marine Street so close and so accessible to us. We also recognize that these businesses are not just here for us island residents, because to survive and thrive they need to attract people from off the island. As such, it is important for all of us to support them in their efforts to evolve and survive in a competitive market. The Village Inn has been a cornerstone of Marine Street and central meeting spot for the Island for more years than the majority of it's residents. As such it deserves the support of the community and its leaders so that it can continue on in that role. The introduction of open air/outdoor seating is a great idea to open up the property, make it more inviting to guests, and remain attractive to the majority of people that live on or visit the island. I support the VI ownership in their efforts to improve their business, while at the same time improving the local business community. The vast majority of the island benefits when that happens. Do not hesitate to contact me with any questions, or if I can be of further assistance. David Manser Diamond Avenue Resident t Planning Commission - November 3, 2016 Item No. 3h Additional Materials Received The Village Inn Outdoor Dining Use Permit (PA2015-016) Biddle, Jennifer Subject: FW: Full Support For Out Door Dining at the Village Inn - Balboa Island From: Sandra Tipton [mailto:sandra.tioton(alomail.com] Sent: Thursday, November 03, 2016 1:21 PM To: Wisneski, Brenda Cc: Daniel Miller Subject: Fwd: Full Support For Out Door Dining at the Village Inn - Balboa Island Dear Brenda, My name is Sandy Tipton, I am a resident on Balboa Island, and I write this letter to you with my full support in requesting APPROVAL of Outdoor Dining for the Village Inn on Balboa Island. I am most privileged to live on Balboa Island for many years. It is one of the most unique, rare, and greatest historical landmarks of Orange County and California. Balboa Island is a quaint and special place to live, where people and tourists from all over the world come to visit the Island. The Island struggles in the off season for business and it is hard for many business owners to stay afloat. The Village Inn and Hershey's Market are the two oldest and most historical sites of the Island. The Village Inn,before Dan Miller purchased it, was a fun place for a few locals to hang out,but it was run down, the business was not great, the food and service was terrible, and business was very slow. When Dan came on, I observed him reaching out to every islander that came in and customers for their input. He and his lovely wife Jessica, were so personable and kind to their customers. Change is always hard for people, especially on the island. The Village Inn had not had change for over 30-40 years. Dan made a point to get to know his customers and Islanders, and he did not change things too quickly. He was so gentlemanly, greeting all his guests, taking input, good and bad, and changing the Village Inn for the better. Dan moved at a pace to improve the restaurant and to include the islanders in the input. He made it their restaurant. That is why it is so successful today. I have met people that have come back to visit the Village Inn after experiencing the great service and change with the new ownership that had not been there in over 20 years. It has brought the Island and community together again! That is a wonderful thing. I find great joy in going there. Dan took it even further, as he reached out to the other businesses on the Island to build an island Comradery and help business growth for everyone. He genuinely cares! The once slow"Village Inn", became the heart and soul of the Island, bringing friends, families and the locals together, as well as vacationers and tourists. The Island businesses flourished, greatly due to the Village Inn. It is the nucleus, or so called "Disneyland" of the Island, that helps all the businesses along Marine. I witnessed Dan going door to door with the island residents on the island, introducing himself and the Village Inn and welcoming them to come in, and getting their feedback. In a day of answer machines, technology, and fast-paced impersonal service, this is a family historical restaurant that you will see nowhere else. He increased business, built closer relationships among the islanders, helped the growth of other businesses an the island. The Village Inn is a unique, and a fun experience like no other for the young and old. We live in a very cute friendly beach community. I know that people have wanted outdoor dining for years. Many other businesses have it and I feel the Village Inn has a right to it as well. I believe that Dan truly cares about the community! He has as vision of keeping the charm of the Island alive. I hope you will see the value in allowing him to do outdoor dining. People will have the opportunity to eat in beach attire,hang out on the island, and spend more money. It is good for the community and everyone. That being said, I, as a Balboa Island resident, I fully support outdoor dining at the Village Inn. As a longtime 1 Planning Commission - November 3, 2016 Item No. 3h Additional Materials Received supporter of Island Activities, including the Balboa IslaTild Wk$ got n1T0ub*5dn DinifigUsalRd mit (PA2015-016) community events, I believe that outdoor dining at this location is appropriate and should be approved. It is a positive addition and a request that has been a long time coming. Outdoor dining will not be disruptive to the residents on Marine Avenue any more than the many residents, tourists, and visitors who walk along Marine Avenue daily to get to South Bay Front. I am asking the City to please approve this permit immediately to allow this operator to upgrade his restaurant and provide this opportunity to locals and visitors alike that will bring value to Balboa Island. Please feel free to call me with any questions at 949-584-7274. Thank you for your kind consideration of approving outdoor dining for the Village Inn! Mahalo, Sandy Tipton 125 Agate Avenue#2 Balboa Island, CA 92662 949-584-7274 Daniel Miller The Village Inn,Newport Beach, CA Black Diamond Tavern, Big Bear Lake, CA Forest Lanes, Lake Forest, CA Saddleback Lanes, Mission Viejo, CA cell: 925-351-4782 2 Planning Commission - November 3, 2016 Item No. 3i Additional Materials Received The Village Inn Outdoor Dining Use Permit (PA2015-016) Subject: FW:Tonight's Hearing Concerning The Village Inn Attachments: Sharon Tetrault's Letter to Planning Commission 001jpg; Sharon Tetrault's Letter to Planning Commission 002.jpg From: ds fmailto:sharontetrault(aaol.com] Sent: Thursday, November 03, 2016 1:09 PM To: Wisneski, Brenda Subject: Tonight's Hearing Concerning The Village Inn Dear Ms. Wisneski: My name is Sharon Tetrault and I own the house at 114 Marine Ave. on Balboa Island. I am unable to attend tonight's planning commission meeting concerning The Village Inn's outdoor dining permit request. I would like my attached, two-page letter to be entered into the public record concerning the matter. Please confirm receipt. Thank you, Sharon Tetrault 949-230-9313 i Planning Commission - November 3, 2016 Item No. 3i Additional Materials Received Sharon Tetrault The Village Inn Outdoor Dining Use Permit (PA2015-016) 114 Marine Ave. Newport Beach, CA 92662 (949) 230-9313 * sharontetrault@aol.com November 3, 2016 Brenda Wisneski Deputy Community Development Director Bwisneski©newportbeachca.gov * (949) 644-3297 Re: PA 2015-016 Activity No: UP2016-012 Location: 123 and 127 Marine Avenue Dear Ms. Wisneski: I am not able to attend tonight's rescheduled public hearing and therefore request that this letter be entered into the public record concerning the 'The Village Inn Outdoor Dining Use Permit", Project No. PA2015-016; Activity No. UP2016-012. I am vehemently opposed to an amendment allowing The Village Inn to have an outdoor dining area on Marine Avenue and to relocating the public bike racks. Between the music and the loud patrons, the noise coming from The Village Inn is already at an unacceptably high level. Outdoor dining tables will require that doors be added to the Marine Avenue side of The Village Inn, thereby increasing the noise level even further. In addition to the noise pollution, residents on Marine Avenue have to deal daily with the attendant problems that spill out of The Village Inn: loud, inebriated patrons walking past our homes late at night, people standing in front of our patios smoking, late-night conversations outside our bedroom windows, etc. Even though my house at 114 Marine Ave. is half-way down the block, I can still hear music from The Village Inn on my front patio and inside the house. - continued on page 2- Planning Commission - November 3, 2016 Item No. 3i Additional Materials Received November 3, 2016 The Village Inn Outdoor Dining jjggJ:JBgft(PA2015-016) Re: PA 2015-016 Activity No: UP2016-012 The Sullivan family, who lives at 121 Marine Ave., has it the worse of any of the residents on Marine Avenue. Even with all their windows and doors shut, they still can hear the music and noise from the bar. No family should have to put up with that for the sake of a bar making more money. They have effectively been deprived of the peaceful enjoyment of their home because of The Village Inn. The city needs to be working on ways to reduce the current level of noise coming out of the bar, rather than approving something that will increase it tenfold. Ours is a residential block but for the firehouse and The Village Inn on the corners; we do not need The Village Inn encroaching even further into our residential neighborhood in order to make more money. Please do not allow any expansion of a business that is already the source of problems for the residents of Balboa Island, and, particularly, those who reside on Marine Avenue. Thank you. Sincerely, ( �G Sharon Tetrault Planning Commission - November 3, 2016 Item No. 3j Additional Materials Received The Village Inn Outdoor Dining Use Permit (PA2015-016) From: Wisneski, Brenda Sent: Thursday, November 03, 2016 2:41 PM To: Planning Commissioners Cc: Biddle, Jennifer, Torres, Michael Subject: Village Inn Attachments: 2016-11-2 The Village Inn -Acoustical Analysis Report FINAL.pdf; RESO EXTENSION 10 YEARS ABATEMENT 123 MARINE.pdf Commissioners, Attached is an acoustical analysis submitted by the applicant evaluating the noise levels generated by the outdoor seating area. It concludes that the noise levels,with the doors open and patrons on the seating area,would be lower than ambient levels (see Table 2). The previous study is included in the October 20th staff report evaluates noise levels from live entertainment. While the live entertainment is not subject to the current application, the applicant developed the analysis to respond to comments made by the Planning Commission at the public hearing in December 2015. Also attached is the Hearing Officer's determination regarding the abatement period for the encroachment which exists on 123 Marine Avenue. While this issue is not before the Planning Commission, it may be of interest to know that a 10 year extension has been granted for the encroachment. After 10 years,the area shall either be removed, another extension granted or the land use changed to allow for the commercial use. Let me know if you have any questions. See you tonight. Brenda Wisneski,AICP Deputy Connnunity Development Director (949) 644-3297 City of Newport Beach Planning Division 100 Civic Center Drive I Newport Beach,CA 92660 A responsim,!knowledgeable trauz o£pmfes malsguidiugmm =iydemlopmmtm the public inorest 1 Planning Commission - November 3, 2016 Item No. 3j Additional Materials Received The Village Inn Outdoor Dining Use Permit (PA2015-016) KFEB Acoustics The Village Inn Restaurant Attn: Daniel Miller 127 Marine Avenue Newport Beach, California 92662 Subject: Acoustical Evaluation of Patron Noise The Village Inn— Newport Beach, California Date: November 2, 2016 Dear Mr. Miller: Contact: At your request, KFEB Acoustics has prepared this letter report discussing the patron Kevin Fowler noise associated with the proposed operations of the Village Inn Restaurant. The objective of this acoustical analysis is to evaluate the patron noise for compliance Phone: with the City of Newport Beach's noise regulations. 760-331-3880 Email: Introduction kevinafowler@yahoo.com The Village Inn Restaurant is located at 127 Marine Avenue, in the City of Newport Our ref: Beach, California.The project site is zoned Mixed-Use Water Related and is VI-0002 adjacent to other mixed use, commercial and residential land uses. The adjoining parcel at 123 Marine Avenue is also under the same ownership. Therefore, the southern property line which is referenced throughout this report is the southern property line of both parcels. The Village Inn Restaurant is currently operating with indoor seating. Restaurant dining occurs during the daytime hours from 7:00 a.m. to 7:00 p.m. During the dining hours the restaurant does have operational TV's showing sporting events and can operate with the windows open. After 8:00 p.m. entertainment is allowed with up to 5 entertainers but the doors and windows on Marine Avenue and on the southerly side of the restaurant are closed. The Village Inn Restaurant is proposing an outdoor dining area along the eastern building fagade adjacent to Marine Avenue to accommodate seating for 16 patrons; it is proposed to open at 7:00 a.m. and close prior to the time any live entertainment begins. The windows and doors will remain closed during the live performances. Planning Commission - November 3, 2016 Item No. 3j Additional Materials Received The Village Inn Outdoor Dining Use Permit �PA2015-016) The Village nn Restaurant Acoustical Evaluation November 2, 2016 Operators of The Village Inn have installed an acoustical hood around the rooftop outdoor vent and have recently installed acoustical absorption panels within the restaurant. Regulatory Noise Code The Village Inn Restaurant is located within the City of Newport Beach jurisdiction, which has established noise regulations.The Village Inn Restaurant is zoned Mixed- Use Water Related and is adjacent to a mixed-use area and residential land uses. The Newport Beach noise regulations limit noise impacts at residential land uses to 55 dBA Leq during the daytime period (7:00 a.m. to 10:00 p.m.)and 50 dBA Leq during the nighttime period (10:00 p.m. to 7:00 a.m.). These thresholds are based on a 15-minute period. Impulsive noise levels, which are short duration sounds such as a horn or a shout, are limited to the noise standard plus 20 dBA. Therefore, the impulse noise level limits for the Village Inn Restaurant will be 75 dBA during the daytime period (7:00 a.m. to 10:00 p.m.) and 70 dBA during the nighttime period (10:00 p.m. to 7:00 a.m.). (For more information, please refer to Attachment 1:Relevant Excerpts from the City of Newport Beach Noise Ordinance.) Noise Methodology and Procedures Exterior Noise Modeling Software Modeling of The Village Inn Restaurant and surrounding environment was accomplished using CadnaA(Computer Aided Noise Abatement), which is a model- based computer program developed by DataKustik for predicting noise impacts under a wide variety of conditions. CadnaA assists in the calculation, presentation, assessment, and mitigation of all types of noise exposure conditions. It allows for the input of project information such as noise source data, sound barriers, sound enclosures, intervening structures, and project elevations to create a detailed CAD model, and uses the most up-to-date calculation standards to predict outdoor noise impacts for evaluating compliance regulations at property lines and other adjacent land use areas. Page: 2/6 Planning Commission - November 3, 2016 Item No. 3j Additional Materials Received The Village Inn Outdoor Dining Use Permit (lPA2015-016) The Village nn Restaurant Acoustical Evaluation November 2, 2016 Existing Ambient Noise Measurements On Tuesday, February 16, 2016 community ambient baseline noise level measurements were conducted to document the existing noise environment within the vicinity of The Village Inn Restaurant. The methodology for these measurements are presented in the previous noise study dated March 20, 2016. During these measurements, the restaurant was operating under normal dining conditions with no amplified music. The measurements were conducted between 6:00 p.m. to 7:30 p.m. prior to the start of the live performance. During these measurements the windows of the restaurant were closed. Therefore, the measured noise documents the community noise sources. Table 1 summarizes the measured ambient noise measurements. Table 1. Field Measurements of the Existing Noise Levels in the Vicinity of the Village Inn Restaurant Noise Measurement Location Measured Noise Level Measurement Description (d BA Leg) Location Interior Interior Southern Portion of 72.5 the restaurant 1 Southern Property Line 58.0 2 Western Property Line 56.0 3 Eastern Property Line 58.6 During the ambient noise measurements it was noted that the dominant existing noise environment nearby the restaurant consisted of localized vehicle traffic on Park Avenue and Marine Avenue as well as noise from pedestrians walking within the neighborhood. Aircraft overflight was also noted as a noise source in the vicinity of the restaurant. It should be noted that the existing ambient noise levels were documented to be higher than the daytime threshold. Acoustical Evaluation of the Proposed Village Inn Patron Noise The Village Inn Restaurant is proposing upgrade modifications incorporating noise reduction measures to the existing building. The proposed modifications are bulleted below. Page: 3/6 Planning Commission - November 3, 2016 Item No. 3j Additional Materials Received The Village Inn Outdoor Dining Use Permit IlPA2015-016) The Village nn Restaurant Acoustical Evaluation November 2, 2016 • A new outdoor dining area located on the eastern side of the restaurant. The new dining area shall incorporate outdoor seating for a total of 16 patrons. • The outdoor dining area will be surrounded by a 3.5 foot wrought iron fence. The southern portion of the wrought iron fence is proposed to contain a 5.0 foot plexiglass barrier to reduce the conversational noise from the patio. • The eastern wall will be replaced with a folding wall/window system that will open up to the new patio area. The windows will be a dual pane system and provide an STC rating of 34. The folding wall will be closed and completely sealed during live performance operations. • The window heights of the folding wall will be extended from the ceiling to the floor on the eastern side of the building. • The existing window on the easterly side of the building will be upgraded to a dual pane window system, which will provide an STC rating of 34. • All entrance doors will also include all-around weather-tight door stop seals and an improved threshold closure system. The transmission loss (TL)of the doors without weather-tight seals is determined mostly by sound leakage, particularly at the bottom of the door if excessive clearance is allowed for air transfer. By equipping the entrance doors with all-around weather-tight seals and a threshold closure at the bottom, the STC rating can be increased by approximately 10 points. With the incorporation of the proposed upgrade modifications and noise reduction measures, as described above, the noise levels from the interior patrons with the windows open and the proposed outdoor dining area (with 16 patrons)to the adjacent residential property lines will be below the 55 dBA daytime property line noise threshold limit and will be below the existing ambient noise levels. Table 2 summarizes the noise levels from the Village Inn Restaurant during the daytime dining period incorporating the proposed upgrade modifications and noise reduction measures. For a graphical representation of the recommended mitigation designs and results please refer to Figure 1: Patron Noise Levels. Page: 4/6 Planning Commission - November 3, 2016 Item No. 3j Additional Materials Received The Village Inn Outdoor Dining Use Permit (lPA2015-016) The Village nn Restaurant Acoustical Evaluation November 2, 2016 Table 2. Calculated Patron Noise Level Levels Noise Threshold Measured Mitigated Measurement Measurement Location Limit Ambient Calculated Location Description (dBA) Level (dBA) Noise Level (dBA) 1 Southern Property Line 55 58.0 43.0 2 Western Property Line 55 56.0 38.8 3 Eastern Property Line 55 58.6 49.5 4 Across Marine Avenue 55 ---- 53.0 5 Alley between the Village Inn and 1305 50 ---- 28.1 Park Avenue These calculations assumed an interior noise level of 72.5 dBA and 16 patrons on the patio talking at a level of 60 dBA at 5 feet. Table 2 illustrates that with the proposed modification upgrades and noise reduction measures the Village Inn Restaurant live patron noise will comply with the City of Newport Beach's daytime noise threshold limit of 55 dBA. Any impulsive noise that would occur would need to be below 75 dBA during the daytime period. Impulsive noise is noise that occurs for less than a few seconds such as a shout or a horn. The noise level of a typical person yelling is approximately 88 dBA at 1 foot. The nearest residence is located approximately 35 feet from the restaurant where the noise level from a person yelling at the referenced noise level will be 56 dBA, which is below the impulsive noise threshold. Certification This document was prepared by Kevin Fowler, INCE. The findings and recommendations of this report are based on the information available, and are a true and factual analysis of the acoustical issues associated with The Village Inn Restaurant, Newport Beach, California. All findings for noise control are based on the best information available at the time our consulting services are provided. However, as there are many factors involved and KFEB Acoustics has no control over the construction, workmanship or materials, and KFEB Acoustics are specifically not liable for final results of any recommendations or implementation of the recommendations. However the Village Page: 5/6 Planning Commission - November 3, 2016 Item No. 3j Additional Materials Received The Village Inn Outdoor Dining Use Permit (lPA2015-016) The Village nn Restaurant Acoustical Evaluation November 2, 2016 Inn owners have committed to the installation of the noise barriers as described and will accept conditions of approval requiring such. KFEB Acoustics appreciate this opportunity to provide consulting services for The Village Inn Restaurant. If you have any questions concerning this project, or would like to discuss other acoustical concerns, please contact me at(760)331-3880. Sincerely, jo� - — Kevin Fowler, INCE Senior Acoustical Scientist Figures 1. Patron Noise Level Attachments 1. Relevant Excerpts from the City of Newport Beach Noise Ordinance Page: 6/6 Planning Commission - November 3, 2016 Item No. 3j Additional Materials Received The Village Inn Outdoor Dining Use Permit (PA2015-016) Figures Planning Commission - November 3, 2016 Item No. 30 Additional Materials Received The Village Inn Outdoor Dining Use Permit (PA2015-01 ) M Noise Contour Legend 4 4o dBA f _ 45 dBA 5o dBA 55 dBA • � � � ' 6o dBA lls. J , 1 65 dBA 4. !^ S y. y■yI . 4 fY rte - S F r ' r I� w.•'. _ _ _ _ _ _ _ Y vow Ilk g The Village Inn Restaurant j Y � r M r• � �• Patron Noise Level ANN Figure i Planning Commission - November 3, 2016 Item No. 3j Additional Materials Received The Village Inn Outdoor Dining Use Permit (PA2015-016) Attachment 1 Relevant Excerpts from the City of Newport Beach Noise Ordinance el Planning CommissionP-Wovemofble0 r 3, 2016 Item No. 3j Additional Materials Received The Village Inn Outdoor Dining Use Permit (PA2015-016) (120 hits) Chapter 10.26 COMMUNITY NOISE CONTROL Sections: 10.26.005 Declaration of Policy. 10.26.010 Definitions. 10.26.015 Decibel Measurement Criteria. 10.26.020 Designated Noise Zones. 10.26.025 Exterior Noise Standards. 10.26.030 Interior Noise Standards. 10.26.035 Exemptions. 10.26.040 Schools, Day Care Centers, Churches, Libraries, Museums, Health Care Institutions— Special Provisions. 10.26.045 Heating, Venting and Air Conditioning—Special Provisions. 10.26.050 Sound-Amplifying Equipment. 10.26.055 Noise Level Measurement. 10.26.065 Proposed Developments. 10.26.070 Prima Facie Violation. 10.26.075 Violations. 10.26.080 Violations—Additional Remedies—Injunctions. 10.26.085 City Manager Waiver. 10.26.090 Noise Abatement Programs. 10.26.095 Manner of Enforcement. 10.26.100 Severability. 10.26.005 Declaration of Policy. ................................................................................................................................................................................................................................................................................................ A. In order to control unnecessary, excessive and annoying noise in the City of Newport Beach, it is declared to be the policy of the City to prohibit such noise generated from or by all sources as specified in this chapter. B. It is determined that certain noise levels are detrimental to the public health,welfare and safety and contrary to public interest,therefore, the City Council of the City of Newport Beach does ordain and declare that creating, maintaining, causing or allowing to be created, caused or maintained,any noise in a manner prohibited by, or not in conformity with, the provisions of this chapter, is a public nuisance and may be punished as a public nuisance. The ordinance codified in this chapter is effective thirty(30)days from adoption, however, all fixed noise sources existing at the date of adoption shall have ninety(90)days from the date of adoption to achieve compliance with this chapter. (Ord. 95-38§ 11 (part), 1995) 10.26.010 Definitions. ................................................................................................................................................................................................................................................................................................ The following words, phrases and terms as used in this chapter shall have the meanings as indicated here: http://www.codepublishing.com/dtSearch/dtisapi6.dll?cmd=getdoc&Docld=99&Index=D... 6/10/2013 NP e4of10 Planning Commission - ovember 3, 2016 Item No. 3j Additional Materials Received The Village Inn Outdoor Dining Use Permit (PA2015-016) 10.26.015 Decibel Measurement Criteria. ...............-...............................................-.............................................................................................................................................................................................................................. Any decibel measurement made pursuant to the provisions of this chapter shall be based on a reference sound pressure of twenty(20) micropascals as measured with a sound level meter using the A-weighted network(scale)at slow response. (Ord. 95-38§ 11 (part), 1995) 10.26.020 Designated Noise Zones. The properties hereinafter described assigned to the following noise zones: Noise Zone I — All single-, two-and multiple -family residential properties; Noise Zone II — All commercial properties; Noise Zone III — The residential portion of mixed-use properties; Noise Zone IV — All manufacturing or industrial properties. The actual use of the property shall be the determining factor in establishing whether a property is in Noise Zone I, II, III or IV provided that the actual use is a legal use in the City of Newport Beach. (Ord. 95-38§ 11 (part), 1995) 10.26.025 Exterior Noise Standards. A. The following noise standards, unless otherwise specifically indicated, shall apply to all property with a designated noise zone: ALLOWABLE EXTERIOR NOISE LEVEL (Equivalent Noise Level, NOISE TYPE OF LAND Leq) ZONE USE 7 a.m. to 10 p.m. 10 p.m. to 7 a.m. I Single-,two-or 55 DBA 50 DBA multiple-family residential II Commercial 65 DBA 60 DBA III Residential 60 DBA 50 DBA portions of mixed-use properties IV Industrial or 70 DBA 70 DBA manufacturing http://www.codepublishing.com/dtSearch/dtisapi6.dll?cmd=getdoc&Docld=99&Index=D... 6/10/2013 NP e5of10 Planning Commission - ovember 3, 2016 Item No. 3j Additional Materials Received The Village Inn Outdoor Dining Use Permit (PA2015-016) If the ambient noise level exceeds the resulting standard,the ambient shall be the standard. B. It is unlawful for any person at any location within the incorporated area of the City to create any noise, or to allow the creation of any noise on property owned, leased, occupied or otherwise controlled by such person,which causes the noise level when measured on any other property, to exceed either of the following: 1. The noise standard for the applicable zone for any fifteen-minute period; 2. A maximum instantaneous noise level equal to the value of the noise standard plus twenty (20) DBA for any period of time (measured using A-weighted slow response). C. In the event the ambient noise level exceeds the noise standard, the maximum allowable noise level under said category shall be increased to reflect the maximum ambient noise level. D. The Noise Zone III standard shall apply to that portion of residential property falling within one hundred (100)feet of a commercial property, if the intruding noise originates from that commercial property. E. If the measurement location is on boundary between two different noise zones, the lower noise level standard applicable to the noise zone shall apply. (Ord. 95-53 § 1, 1995; Ord. 95-38 § 11 (part), 1995) 10.26.030 Interior Noise Standards. ... ... ..... ... .... .. .. .._. ... ._ ............... ................. ............... .......................... ...............-................. A. The following noise standard, unless otherwise specifically indicated, shall apply to all residential property within all noise zones: ALLOWABLE INTERIOR NOISE LEVEL (Equivalent Noise Level, NOISE TYPE OF LAND Leq) ZONE USE 7 a.m. to 10 p.m. 10 p.m. to 7 a.m. I Residential 45 DBA 40 DBA III Residential 45 DBA 40 DBA portions of mixed-use properties If the ambient noise level exceeds the resulting standard, the ambient shall be the standard. B. It shall be unlawful for any person at any location within the incorporated area of the City to create any noise or to allow the creation of any noise on property owned, leased, occupied or otherwise controlled by such a person which causes the noise level when measured on any other property,to exceed either of the following: 1. The noise standard for the applicable zone for any fifteen-minute period; http://www.codepublishing.com/dtSearch/dtisapi6.dll?cmd=getdoc&Docld=99&Index=D... 6/10/2013 Planning Commission - November 3, 2016 Item No. 3j Additional Materials Received The Village Inn Outdoor Dining Use Permit (PA2015-016) RESOLUTION NO. HO 2016-### A RESOLUTION OF A HEARING OFFICER OF THE CITY OF NEWPORT BEACH APPROVING WITH A CONDITION THE ABATEMENT EXTENSION PERIOD FOR THE PROPERTY LOCATED AT 123 MARINE AVENUE (PA 2016-133) WHEREAS, Chapter 20.38.100 of the Newport Beach Municipal Code (NBMC) requires nonconforming nonresidential uses in residential zoning districts to be abated and terminated upon the expiration of time periods identified by the NBMC. Following the issuance of an Abatement Order, Chapter 20.38.100 provides that a property owner may request an extension of the abatement period in order to amortize the owner's investment in the property and avoid interference with use of the property; and WHEREAS, an Abatement Order was issued on or about August 30, 2016 by Community Development Director Kimberly Brandt, AICP, which was confirmed without change after the Hearing of the matter on October 17, 2016. WHEREAS, an application for an extension of the abatement period was filed by Dan Miller, operator of the Village Inn, on behalf of the property owner of 123 Marine Avenue, and legally described as Balboa Island Sec 4 Lot 15 Blk & Lot 16 Blk 1 Ex E 10 Ft Lots 15, requesting an extension of the abatement period specified by the NBMC Section 20.38.100. Applicant seeks an extension that will allow the continued operation of existing restaurant located at 123 and 127 Marine Avenue for ten years from the date of the Hearing Officer's decision. The residential property upon which the restaurant encroaches at 123 Marine Avenue is located in the Two-Unit Residential, Balboa Island (R-BI) Zoning District, where such nonresidential uses are not permitted; and WHEREAS, a public hearing was held on October 17, 2016, in the Corona del Mar Conference Room (Bay E-1st Floor) at 100 Civic Center Drive, Newport Beach. A notice of time, place and purpose of the meeting was given in accordance with the NBMC and other applicable laws. Evidence, both written and oral, was presented and considered at this meeting. At the close of the Hearing a period of 10 days was extended for the submittal of additional materials, at which time the Record was final and closed; and WHEREAS, the hearing was presided over by William B. Conners, a California licensed attorney experienced in municipal law and Hearing Officer for the City of Newport Beach; and WHEREAS, the Hearing Officer finds and determines as follows: 1 . PRELIMINARY LEGAL DETERMINATIONS. ' As used throughout,the term"nonconforming"refers to the status of legal nonconforming. Planning Commission - November 3, 2016 Item No. 3j Additional Materials Received The Village Inn OutdocCOirdfiblWrpdPbfailgPA2015-016) Hearing Officer Resolution Abatement Extension (123 Marine Avenue) Page 2 of 18 At the hearing on the application, a coalition of neighbors in the vicinity of the premises were represented by counsel, Robert L. Glushon, esq., who submitted several legal arguments in opposition to the application during the Hearing, and again on October 31, 2016, as permitted by the Hearing Officer at the close of the initial Hearing. Because most, if not all, of the arguments and contentions deal with threshold issues, these will be discussed at this point: A. Legal nonconforming status must be supported by validly issued building permits. The opposition challenges the authority of the City to declare that the encroachment area between 123 and 127 Marina Avenue is in fact a legal nonconforming structure, citing City and County of San Francisco v. Board of Permit Appeals (1989) 207 CA3d 1099, as authority. That case dealt with an appeal by the City and County of San Francisco of its own Board of Permit Appeals, which in turn overturned a determination by the City/County Zoning Administrator. The City/County challenged the act of the Board as being in excess of its authority. Unlike the situation at hand, the Court found the Board did not possess the legal authority to decide if the excess unit was nonconforming and thus legal to continue in existence. Under the City's ordinances, the Board would in effect be legalizing a unit that it did not have jurisdiction to create. In our matter under consideration, NBMC §20.38.030A. states: "Director's Determination. The Director shall determine the nonconforming conditions of land uses and structures." Thus, unlike the situation in the Board of Permit Appeals case where it was determined that agency seeking to legitimatize the use clearly did not have authority to do so, herein the Community Development Director had express and sole jurisdiction to make that discretionary call. Whether the Director's determination was supported by substantial evidence will be discussed below, but as an initial issue, it is clear the Director was empowered to exercise discretion in deciding the use was indeed nonconforming. Holding: With respect to the issue of determining whether the use was nonconforming or not, it was the exclusive authority of the Director alone to decide this issue. B. Was the building permit issued in 2001 "valid"? Planning Commission - November 3, 2016 Item No. 3j Additional Materials Received The Village Inn OutdocCO)rdfiblWrpdPbfailgPA2015-016) Hearing Officer Resolution Abatement Extension (123 Marine Avenue) Page 3 of 18 Opponent claims that unless the permit issued by the City in 2001 was valid, the request for Abatement is moot under the NBMC's provisions. This issue was raised again in challenging whether the nonconforming use was ever lawful in the later submittal. Absent extraordinary circumstances that might trigger compliance with the California Environmental Quality Act (CEQA), issuance of building permits are ministerial acts by the City. See Friends of Westwood v. Los Angeles (1987) 191 CA3d 259. A ministerial act refers to an action of a person, in this case building official, in a prescribed manner in obedience to a mandate of legal authority without regard to or the exercise of his or her own judgment upon the propriety of the act being done (Black's Legal Dictionary, Revised Fourth Edition, 1968). If the person seeking a building permit submitted an approved plan, demonstrated compliance with then current building codes, and paid a requisite fee, then the permit would have to be issued. In the case at hand there is evidence that the closing of the breezeway between the restaurant and the adjacent residence may have been accomplished before issuance of a permit occurred. In municipal situations, it is not a rare occurrence to have a party commence construction without securing required permits, especially building permits, as it appears was the case here. Once discovered to be constructing the encroachment without required permits, it is clear a building permit was sought and secured by the owner at the time. It is irrelevant whether there was an attempt to avoid securing of a valid permit in the first instance since it was indeed requested and issued thereafter. Even if the permit were incorrectly issued by the City in 2001, the time limit for challenging that act would have long ago expired. The general statute of limitations for lodging a dispute in that regard would have been 90 days after the incorrect action pursuant to CCP §1094.6. There is independent evidence that the building permit was and remains valid: (1) it was signed off by building staff, an indication of compliance with zoning and building regulations, (2) it references a "date of validation" of July 2001, with that term referencing the time when the permit was deemed valid, and (3) the permit itself was issued and filed as an issued building permit. Whether or not the act of closing-in the breezeway complied with then current regulations regarding the crossing of property lines with a structure is not the issue now. The permit was focused on whether or not the construction was safe and met the uniform code requirements which are not now questioned. As long as they permit was officially issued and approved, it was valid. Holding: The 2001 building permit issued by the City was and is lawful and valid. Planning Commission - November 3, 2016 Item No. 3j Additional Materials Received The Village Inn OutdocCO)rdfiblWrpdPbfailgPA2015-016) Hearing Officer Resolution Abatement Extension (123 Marine Avenue) Page 4 of 18 C. Compliance with NBMC §20.16.020.6. is mandatory and should act as a bar herein. Opposition counsel correctly references NBMC §20.16.020.B. as literally stating that securing of permits must occur before a proposed use is commenced, a project is constructed, or any activities associated with the use are commenced, established, or put into operation. Counsel suggests that the term "shall" renders the action of the City to be mandatory, and any project that proceeds without all necessary permits is invalid. Unfortunately, as a matter of law, even the use of "shall" does not, necessarily, render this provision to be mandatory. Even where the term "shall" is present and even where a reference in the code explains that term as meaning "mandatory", unless there is a penalty associated with a failure to comply the law deems such reference directory in nature, not mandatory. See for instance Cox v. California Highway Patrol (1997) 51 CA4th 1580 where the court discusses the need to look to the consequences for an agency disregarding apparent mandatory statutory language. Essentially if there is no negative impact from disregarding the statutory language, it is directory in nature unless it is otherwise clear that it was intended to be required. Herein it remains unclear whether the City Council intended that any failure to secure a building permit in advance of commencing a use or action would bar any future attempt at obtaining such a permit. My belief is the clear intent of this local ordinance is to the contrary. It certainly is directory in that it attempts to establish that necessary permits be obtained in a timely manner as much as possible, but in those instances where compliance is required after the fact, such as with respect to building permits, it is simply not the case. If you commence construction without a building permit and are discovered, you have to pay a penalty fee and can then obtain the permit without any further impediment. The ordinance does not seem to intend that a late obtaining of such a building permit would forever prohibit actual use of that permit in constructing the improvement. That would be contrary to common sense. In raising this issue, it becomes incumbent upon the opposition to establish that this provision is mandatory in all instances, and that once ignored, this provision bars all subsequent attempts at obtaining a valid permit. As noted above, I don't believe that was the intent of the Council, but in any case the issue of mandatory vs. directory was not raised by the opposition and is unpersuasive without further argument or citations. Finally, there was no showing made that this code provision was in effect in 2001 when the building permit in question was issued. It is not up to the Hearing Officer or the City Staff to research this point, but up to the party seeking to argue that it controls in this instance to do so. Lacking that showing, I believe it is up to the discretion of the Hearing Officer to determine the intent of this section and apply it to the facts of this matter. Planning Commission - November 3, 2016 Item No. 3j Additional Materials Received The Village Inn OutdocCOirdfiblWrpdPbfailgPA2015-016) Hearing Officer Resolution Abatement Extension (123 Marine Avenue) Page 5 of 18 Holding: It is found that compliance with NBMC §20.16.020.6. is not mandatory, but is in fact directory in nature. The literal interpretation suggested by Opposition would be inconsistent with the fact that uniform codes contain provisions for issuance after being discovered in violation of requirements to secure building permits prior commencing construction as long as such permits are subsequently requested and issued. D. Opposition claims there is no evidence the building permit was in fact issued with respect to the restaurant. It is curiously stated that "it is uncontested that there is no evidence whatsoever that a building permit was ever applied for or issued for an addition to the restaurant which encroaches onto 123 Marine." It is correct that the 2001 building permit does not literally seek an addition to the restaurant, but it does state the action was attaching the restaurant to the house next door, it references remodeling the rear entryway which was a clear reference to the restaurant, and most importantly the schematic diagram of the building area is labeled as part of the Village Inn. It is readily apparent that in fact the building permit was directly related to the restaurant at 127 Marine Avenue. Contained in the staff report and entered into the record is Attachment B which sets forth the 2001 Building Permit No. B2001-1972. It may be that at the time the argument was crafted by Opposition they had not seen this document, but at all times that I have been in possession of the staff report this building permit has been plainly and clearly set forth and relates to the restaurant as an encroachment into adjacent property across the property line for some sort of restaurant use. Holding: A valid building permit was issued by the City in 2001 in conjunction with the Village Inn restaurant encroachment into 123 Marine Avenue property. E. The burden of proof is on the party asserting a right to nonconforming use In a sense this is correct, but it is misplaced to assume it is the applicant for the extension of the Abatement Period that has the burden with respect to all issues. There are actually two issues at hand, with two incumbent separate burdens of proof involved. The first issue is whether or not there is a nonconforming use established under the NBMC. As set forth in A. above, Newport Beach Municipal Code §20.38.030A. states: "Director's Determination. The Director shall determine the nonconforming conditions of land uses and structures." Thus the discretionary determination of whether or not there exists a nonconforming situation falls on the authority of the Community Development Director, not the applicant for the extension of time. As such, the burden of proof rests with the Director, not the applicant. It is found that the Director Planning Commission - November 3, 2016 Item No. 3j Additional Materials Received The Village Inn OutdocCOirdfiblWrpdPbHailgPA2015-016) Hearing Officer Resolution Abatement Extension (123 Marine Avenue) Page 6 of 18 has met that burden with substantial evidence, as demonstrated in her memorandum of August 30, 2016 which details the reasons and rationale for that determination. The Director reviewed this determination after the Hearing was closed at my request due to potentially new information that she may not have considered. After reflection, the Director declined to change or revise the earlier memorandum. Perhaps more importantly, the issue is moot. Once it was found by the Director that there was a nonconforming situation under the NBMC, an opportunity to seek a review by hearing officer to seek an extension of time for required abatement of the nonconforming situation under the factual circumstances set forth in the NBMC arose. That is the purpose of the hearing that was held on October 17, 2016, at which the current arguments were raised. Unlike the issue regarding the propriety of finding nonconforming status, the issues regarding whether or not substantial evidence exists to support an extension in accord with reasons set forth in the Code does indeed rest with the applicant. Staff has the ability to recommend a preferred decision in the same manner as the rest of the public, and it is common for the applicant to concur in this recommendation as sound reasoning when it comports with their own point of view, but in the end it is up to the applicant to make the case. If the staff recommendation is well-reasoned, meeting this burden may be met by simply agreeing with that point of view. It should be noted that the Director made the decision that the encroachment was nonconforming on or about August 30, 2016. NBMC §§20.64.020 and .030 establish a system for appealing from decisions of the Director, with a statute of limitations of 14 days. It appears that much of opposition's argument is directed at this initial determination, but there is no appeal of the Director's determination allowed at this time because the time to appeal that issue to the Planning Commission has long expired. At this time that issue is moot and the determination of the Director requires deference from the Hearing Officer. Holding: The decision of the Director affirming nonconforming status to the encroachment onto the 123 Marine Avenue property stands and any appeal has been time barred since September 14, 2016. Holding: The burden of showing whether or not the Hearing Officer should grant an extension of the Abatement Period falls on the applicant to demonstrate. F. Findings for the extension are not met. This section is offered by the Opponent by argument alone as opposed to legal citations and factual findings. Planning Commission - November 3, 2016 Item No. 3j Additional Materials Received The Village Inn OutdocCO)rdfiblWrpdPbHailgPA2015-016) Hearing Officer Resolution Abatement Extension (123 Marine Avenue) Page 7 of 18 Holding: These arguments are not legal in nature and will be dealt with separately in the "findings and recommendations" sections below. G. Categorical exemption pursuant to CEQA is not appropriate. Opposition argues that staff's determination that the request for Abatement is categorically exempt under §15301 of CEQA Guidelines (existing facilities) is incorrect. It is argued that the exemption is facially wrong because based on prior arguments, the encroachment is illegal, and an illegal structure cannot be considered to be an existing structure. Facial challenges are directed at the statute in question, and consideration is given only to the text of the measure itself, not its application to particular circumstances. See Tobe v. City of Santa Ana (1995) 9 C4th 1069. In general, there can be no set of circumstances that exist under which the statute would be valid. If this is truly a facial challenge to the CEQA Guideline, it fails immediately. Herein, the categorical exemption applies to existing structures without any reference to whether that structure was created legally or not. To be facially incorrect there would have to be no existing structure on the site. Period. That is simply not the case during all relevant times herein. This argument is presented without any controlling legal authority and seems to defy logic. The encroaching structure either is there or it is not. An illegal structure has the same potential environmental impacts as one that is legal. The broad purpose of CEQA is to provide local agencies sufficient information regarding potentially significant environmental impacts that might result from project approval so that the agency might eliminate or reduce the impacts through conditions of approval. There is nothing of a legal nature that I can find that differentiates between legal and illegal structures that in fact are already in existence. I find this argument to be sophisitic. If a structure exists, the impact on a project will be the same regardless of its status. The Opposition correctly states that in some instances the categorical exemptions from CEQA themselves are subject to exceptions. In this instance staff has determined that there exists a Class 1 Categorical Exemption (existing structure) which would relieve the project from the application of a CEQA analysis. Opposition argues that an exception from the exemption is appropriate here because "there is a reasonable possibility that the activity will have a significant effect on the environment due to unusual circumstances." citing CEQA Guidelines §15300.2(c). The legal authority cited does exist, but it is inapposite herein because there are no facts to place the current situation into that exception. The "reasonable possibility" of a significant effect has to be established by plausible evidence. Opposition claims that Planning Commission - November 3, 2016 Item No. 3j Additional Materials Received The Village Inn OutdocCO)rdfiblWrpdPbfailgPA2015-016) Hearing Officer Resolution Abatement Extension (123 Marine Avenue) Page 8 of 18 the fact the encroachment constitutes a commercial use on a residentially zoned property is enough to trigger the "unusual circumstances" exception, citing to Berkeley Hillside Preservation v. Berkeley (2015) 60 C4th 1086. What is required to be shown pursuant to that case in order to invoke this exception to an exemption is basically two-fold: (1) unusual circumstances must be demonstrated, and (2) a significant environmental impact due to those unusual circumstances (Berkeley Hillside Preservation v. Berkeley (supra, 1097). The fair argument test is used to determine if there is a reasonable possibility of this significant impact. There is no logical connection between the facts that the commercial establishment encroaches on residential property, therefore it automatically results in a significant environmental impact. There is no showing that any impact, such as the noise impact that currently may exist, would not emanate from the commercial restaurant if it were contained on its own property. Likewise, there is no showing herein that noise exists to a level that would constitute a significant environmental impact. There has been no measured level, no expert showing the noise is persistent or repetitive. More is required to meet the test that a fair argument can be made that a significant impact might result from leaving the buildings in the exact same relationship that they are currently arranged. There is no cause and effect relationship demonstrated here. Holding: Based on the information that is contained in the record, I find no showing that unusual circumstances have given rise to potentially significant environmental impacts such that the Categorical Exemption relied upon was incorrect. (see Citizens for Envt'l Responsibility v. St. of CA ex rel 14th Dist. Ag. Assn. (2015) 242 CA4th 555.) The Categorical Exemption relied upon by staff was correctly applied. Holding: At all times relevant herein, there has been a structure consisting of an enclosed former breezeway between two buildings, one a commercial restaurant and the other a residential premises. H.2 No evidence that non-conforming use was ever lawful. Counsel restates his previous argument that there is no evidence the decision of the Director was lawful. As noted above, this argument is time-barred and ignores the exclusive act of jurisdiction in this regard exercised by the Director on August 30, 2016. As such, it is z Note that H. and 1.are responses to the supplemental briefing provided by Opposition Counsel On October 31, 2016. Planning Commission - November 3, 2016 Item No. 3j Additional Materials Received The Village Inn OutdocCOirdfiblWrpdPbfailgPA2015-016) Hearing Officer Resolution Abatement Extension (123 Marine Avenue) Page 9 of 18 beyond the scope of the Hearing Officer to determine. That said, I do find that there is substantial evidence presented by the Director in her August 30, 2016, memorandum, which has not been changed or revised, where she finds that the encroachment area constitutes a nonconforming use, meaning a one that was lawfully established. She cites as evidence the historic long-time use of the commercial property in the encroachment area, the aerial photos and building permits that evidence the nature and use of the storage area that crossed the property line at that time. The notion of "substantial evidence" in land use decisions generally turns on whether there is some significant amount of evidence that supports the determination, and the decision is not entirely lacking in evidentiary support. See Association for Protection, etc., Values V. City of Ukiah (1991) 2 CA4th, 720; Laurel Heights v. Regents of the University of California (1993) 6 C4th 112. 1 disagree with counsel's conclusion that there is no evidence that the use was lawful in 2001. 1 understand that in presenting his opinion he weighs the evidence in a light most favorable to his client, but in this instance I simply disagree with the conclusion that there isn't "any evidence" that supports her decision. Holding: For the reasons set forth above, I find this argument is moot due to a failure to appeal the Director's decision within 14 days of the August 30, 2016, determination. Holding: Despite the fact that the Hearing Officer has no jurisdiction to act with respect to the Director's now final decision, I do find that there exists substantial evidence to support that decision as outlined in the August 30, 2016, decision and the evidence submitted in the Hearing regarding the 2001 Building Permit submittal and approval. I. In what amounts to a restatement of a prior position, Opposition Counsel refers to their prior letter brief and once again argues that all of the findings to support the requested extension cannot be made due to a lack of supporting evidence. It is argued that the only justification for the 10 year extension offered by the applicant is to "weigh options." That is simply not the case. In the written statement submitted by the applicant in support of their request they note that: (1) they were required to purchase the adjacent residential property with the restaurant "because of the restaurant encroachment", (2) evaluate different options to address the nonconformity, (3) to avoid economic hardship, (4) removal of the encroachment would be cost-prohibitive, (5) removal would be infeasible due to its use for food preparation and storage, (6) deprivation of this use would result in a taking of the property, and (7) loss of this use would significantly impact the viability of the restaurant use. As further support for these positions is the fact that Planning Staff offered a staff recommendation to permit the 10 year extension. Despite any conclusions to the contrary, the job of Staff is to look at the pertinent facts for and against the application Planning Commission - November 3, 2016 Item No. 3j Additional Materials Received The Village Inn OutdocCO)rdfiblWrpdPbfailgPA2015-016) Hearing Officer Resolution Abatement Extension (123 Marine Avenue) Page 10 of 18 and make a professional informed decision as to what is best for the community. The applicant concurred in the Staff Recommendation and basically linked to that analysis. Between the Staff's reasoning and that of the applicant, I believe there is ample justification for the extension, primarily from an economic point of view. While not changing my opinion as stated above, after the Hearing was closed the Applicant, through their representative Carol McDermott, submitted additional information regarding the potential impacts if the extension did not issue. She stated that: (1) removal of the encroachment area would "significantly impact" the viability of the restaurant, (2) the food preparation and storage area in the encroachment is "necessary" for the on-going restaurant operation in order to achieve food sales goals, (3) the lack of prior complaints over the many years the restaurant has been in existence demonstrates a lack of adverse impacts, and (4) a 1 year extension would be insufficient to support any future renovations or redesign. This information essentially supports the prior applicant and staff findings. I would note that my analysis did take into account the fact that numerous neighbors believe that the encroachment area creates too much noise. If this were allowed to continue, it could result in a hardship to neighbors, but a condition of approval has been added to require reduction of noise emanating from this site. If applicant concurs and reduces the noise, the other factors argue in favor of the 10 year extension. 2. FINDINGS AND RECOMMENDATIONS OF HEARING OFFICER NBMC §20.38.100.4. sets forth the process for requesting an extension of the abatement period contained in the abatement order of the Community Development Director—herein one year. In general, it requires that an application for the extension be filed within 90 days prior to expiration of the abatement period—in this matter prior to May 31, 2017. It was obviously timely filed. The application must set forth the length of extension requested, and provide evidence in support of the findings that must be made to support an extension as set forth in NBMC §20.28.100.C.4.c. A hearing officer shall be utilized to make this determination. The Hearing Officer herein is empowered to approve, conditionally approve, or deny the request for the extension pursuant to NBMC §20.28.100.4.b.iii. The Resolution of decision shall include: (1) findings of fact; (2) evidence presented of economic hardship arising from the abatement proceedings; (3) the nonconformity's impact on the community; (4) and such other factors that may affect the length of the abatement period required to avoid an unconstitutional taking. Planning Commission - November 3, 2016 Item No. 3j Additional Materials Received The Village Inn OutdocCO)rdfiblWrpdPbfailgPA2015-016) Hearing Officer Resolution Abatement Extension (123 Marine Avenue) Page 11 of 18 Note that the Hearing Officer's authority extends only to determining the validity of the extension, not the underlying decision by the Community Development Director to issue an Order of Abatement. In making this decision, the Hearing Officer shall consider: (1) the length of the abatement period in relation to the owner's investment in the use; (2) the length of time the use was operating prior to the date of nonconformity; (3) suitability of the structure for an alternate use; (4) harm to the public if the use remains beyond the abatement period; and (5) the cost and feasibility of relocating the use to another site. Each of these issues is discussed separately below after the Findings of Fact applicable herein are set forth. A. FINDINGS OF FACT: Following are the factual determinations deemed pertinent to this matter: a. The current owners of the properties purchased them as two separate lots of record in early 2012. b. The property located at 123 Marine Avenue is residentially zoned and used, with the exception of the encroachment which serves the restaurant, while the adjacent property at 127 Marine Avenue is zoned and used as a commercial restaurant. c. At all times since at least 2001, and definitely at all times owned by the current property owners, the setback area between the two properties and formerly used as a covered breezeway has been enclosed and essentially joins a portion of the restaurant and part of a parking garage under a residential unit and an area in front of the garage structure. This area is being used for restaurant supporting activity, including cold storage, dry storage, and food preparation. This area is referred to herein as the encroachment. d. The enclosure of the encroachment was constructed in accordance with a City Building Permit, No. 82001-1972, issued on or about July 30, 2001. e. At all times during the period of ownership of the property by applicants, the nonconforming status of the encroachment has lawfully existed. f. On or about August 30, 2016, the Community Development Director issued notice to the property owner that the encroachment was nonconforming due to an amendment of NBMC §19.04.035 in 2008 which prohibits the construction of structures across a property line. The Director found that the original enclosure of the encroachment was lawfully established, thus legally nonconforming at that time and subject to the abatement procedures detailed in Zoning Code §20.38.100 which Planning Commission - November 3, 2016 Item No. 3j Additional Materials Received The Village Inn OutdocCOirdfiblWrpdPbfailgPA2015-016) Hearing Officer Resolution Abatement Extension (123 Marine Avenue) Page 12 of 18 required discontinuance of the encroachment within one year unless an extension was granted. This decision was not appealed. g. An application for an extension of the abatement period was filed in a timely manner by Dan Miller, Operator of the restaurant, on behalf of the property owners, seeking a 10 year extension of time to abate the nonconforming situation. h. The Hearing of the request for the extension of the abatement period was held on October 17, 2016, at City Hall. It was open to the public and afforded an opportunity for public testimony. The preliminary statements introducing this Resolution above (the WHEREAS statements) are found to be factually correct and incorporated herein by reference. i. The record of this proceeding was opened at the Hearing, and includes any and all information contained in the staff report, any writings provided to the City before, during, or after the hearing until such time as the record is closed by the Hearing Officer, along with all oral testimony made during the hearing, along with a sign-in sheet for attendees. At the close of the Hearing, the Record remained open for receipt of additional materials requested by the Hearing Officer, along with any additional responses from the applicant, the opponents, or staff. Minutes of the meeting created by staff are also included in the Record. The Record officially closed on November 2, 2016. Additional information and photos were received from: (1) Robert Glushon, esq., (2) Jim Mosher, (3) Mike Sullivan, (4) planning staff (News Splash), and (5) Applicant and representative. All of this information has been considered and is added to the record. j. During the Hearing testimony was received from several residents living near the encroachment, as well as written and oral testimony from an attorney representing a coalition of residents in the neighborhood, who all stated, among other things, that there was an emanation of annoying noise from the food preparation area within the encroachment. It was described as a hammering or banging noise which was loud enough to interfere with the quiet enjoyment of nearby properties. k. Representatives of the restaurant present at the hearing did not deny the presence of this noise or explain why it was necessary at this location, although they did agree with the staff recommendation and responded to other issues raised by speakers. I. The factual findings of the Hearing Officer in responding to preliminary legal issues raised are incorporated herein as if set forth separately. In the interest of avoiding redundancy they are not set forth herein again. s Although the application is not dated, it is clear that it was submitted within 1 Yz months of the Director's determination prior to the hearing date of October 17,2016 and is therefore timely. Planning Commission - November 3, 2016 Item No. 3j Additional Materials Received The Village Inn OutdocCOirdfiblWrpdPbfailgPA2015-016) Hearing Officer Resolution Abatement Extension (123 Marine Avenue) Page 13 of 18 B. MANDATORY ITEMS OF REVIEW AND FINDINGS. Pursuant to NBMC §20.38.100.C.4.(c) the Hearing Officer is directed to consider the following: (a.) the length of the abatement period in relation to the owner's investment in the use; (b.) the length of time the use was operating prior to the date of nonconformity; (c.) suitability of the structure for an alternate use; (d.) harm to the public if the use remains beyond the abatement period; and (e.) the cost and feasibility of relocating the use to another site. These guidelines and resulting findings are set forth following: a. The length of the appropriate abatement period considering the owner's investment in the use. Finding: The extension of the abatement period for 10 years is allowed, but with one condition. The extension is financially supported, but if it continues in its present configuration it will continue to be a source of annoyance and nuisance to nearby residences due to excess noise emitted from the activity in the encroachment area. Therefore, the extension is conditioned on owner implementing approved procedures to reduce noise emanating from the encroachment area. Such procedures could include eliminating doors and windows from this area that are not required by building code provisions, addition of sound attenuation insulation in the south walls of the structure, and likewise insulating the ceiling might assist in accomplishing this goal, too. Installing heavier insulated doors where required with automatic closing devices may help as well. The condition expressly requires creation of an approved sound reduction plan that is submitted to Community Development Staff and demonstrates a positive reduction in noise from the food preparation area. The owner is required to work with the Community Development Staff as well as the Building Department to create a plan to abate the noise that exists according to others in the neighborhood, and implement that plan within 90 days of this decision. If not substantially implemented within that time period, the extension shall be reopened and the Hearing Officer authorized to review the recommendation for extension of the abatement period at that time. Facts in Support of Finding: The applicant is requesting an abatement extension of ten years. The property was purchased in 2012 at which time it was already in violation of the NBMC and potentially subject to an abatement order. For whatever reason that order did not issue until August 30, 2016. The owner has already enjoyed four years of extended abatement status. There has been little evidence other than comments from the owner and his agents to the effect that it would be economically problematic if the extension were not granted. This ignores the fact that four years of extra advantage have already been received by the owner. It goes without saying that every owner of a business facing an abatement order that impacts square footage being Planning Commission - November 3, 2016 Item No. 3j Additional Materials Received The Village Inn OutdocCOirdfiblWrpdPbfailgPA2015-016) Hearing Officer Resolution Abatement Extension (123 Marine Avenue) Page 14 of 18 used would have a good argument that it would result in an economic hardship of some degree. The staff recommendation indicates that it is their opinion that a one year abatement period would be insufficient to allow the property owner to provide improvements to the property that may be needed. It is staffs opinion that a hardship might result if the extension were not approved. In 2012, when the property owner purchased the restaurant at 127 Marine Avenue, he was also required to acquire the property at 123 Marine Avenue. He suggests this requirement was due to the encroachment. Since the purchase the owner has implemented several interior improvements to the restaurant to update the older, outdated interior. Implicitly extending the abatement period would allow continued improvements to be made, especially those that might abate other nuisance conditions being imposed for the benefit of surrounding residents. The one year abatement period specified by the Municipal Code is not of sufficient duration to allow the property owner to explore interior renovations to redesign the kitchen, utilize the upstairs area for restaurant use, or other options. Therefore, an extension of 10 years for the abatement of the encroachment is necessary to allow continued viable use of the applicant's property and to avoid the economic hardship that might result by the abatement of the encroachment which is a functional and important component of the restaurant operation. As long as continued use of this area can reduce the noise emanating from it, the length of abatement is commensurate with the owner's investment in the use and expectation of continued viability. b. The length of time the use was operating prior to the date of nonconformity justifies the extension of the abatement period beyond the code specified one year. Finding: It is apparent that since at least 1989 the area between the two structures on the adjacent parcels were joined by a roof structure. It is somewhat in dispute when the complete enclosure of this space occurred, but definitely in 2001 when permits memorialize the current configuration. The NBMC changed in 2010 and made the use of the encroachment area which extend over the property line one of nonconformity, although staff did not issue an abatement order until 2016. In either case the property has been utilized in its current relationship for more than 15 years and probably more than 25 years. At a minimum, the current encroachment has been in its present state for many years, enough that had if it been a significant nuisance it would have been brought to the City's attention long ago. The fact that it has existed for an extensive period of time demonstrates it is a suitable use in the neighborhood, and justifies continued use beyond the one year abatement period automatically granted by the NBMC. Planning Commission - November 3, 2016 Item No. 3j Additional Materials Received The Village Inn OutdocCOirdfiblWrpdPbfailgPA2015-016) Hearing Officer Resolution Abatement Extension (123 Marine Avenue) Page 15 of 18 Facts in Support of Finding: Historic aerial photos of the encroachment are inconclusive regarding whether the structure was fully enclosed as early as 1989 due to the fact such photos only show the roof of the structure. That said, it is clear that at all times since 1989 the area has been covered, creating a structure of sorts until it was fully enclosed and in its current configuration in 2001. Building permits were issued in 2001, at which time the City of Newport Beach had notice that the encroachment area was fully encapsulated and extended across the property line. The City of Newport Beach adopted an ordinance in 2010 which requires that nonconforming uses of structures crossing property lines such as this be discontinued within one year unless an extension is granted by the Hearing Officer. While there was a significant factual dispute as to exactly when the breezeway between the two buildings was enclosed, there is no doubt that by at least the summer of 2001 the enclosure was complete and a building permit supporting the improvement issued. At all times since there is no substantial factual argument that it was used as anything but a storage and preparation area for the restaurant next door. The current owners purchased the two lots containing the restaurant and adjacent residence, along with the enclosure, in 2012. Thus the owners have had only four years to make improvements, grow the business, and basically attempt to recoup their investment based on the current configuration. In terms of business development, this is not a long time. I find that the additional period of 10 years will give them a greater opportunity to recover their investment, along with any costs of noise attenuation required by this decision. c. The existing structure is not suitable for conversion to an alternate use. Finding: It is difficult to envision what alternate use would be appropriate in the existing encroachment area. Elimination could greatly impact the existing restaurant, and the current wall of the garage area makes residential expansion or use impractical. The current use is appropriate under the circumstances. Facts in Support of Finding: The subject encroachment is located within the setback area of both the residential and commercial developments. A 3-foot setback is required for the residential parcel. It would not be appropriate for this area of the structure be used for an alternative use. The area serves the restaurant, so removal would simply create a very small buffer between the two buildings at a detriment to the commercial establishment. d. No harm to the public will result if the nonresidential uses remain beyond the one year abatement period. Planning Commission - November 3, 2016 Item No. 3j Additional Materials Received The Village Inn OutdocCOirdfiblWrpdPbfailgPA2015-016) Hearing Officer Resolution Abatement Extension (123 Marine Avenue) Page 16 of 18 Finding: As set forth in the conditional grant of extension by the Hearing Officer above, the extension is appropriate, but to avoid any undue continuation of noise problems, which could be harmful to the public, the noise attenuation condition needs to be implemented. Facts in Support of Finding: The subject encroachment has existed since at least 2001. It serves as storage, a food preparation area, and access for the restaurant from the alley. The property owner owns both affected properties and can remedy any future concerns to these parcels. There are mixed uses along Marine Avenue to the north of the property and a fire station across the street. It is anticipated that the continued use of the site will remain compatible with the surrounding land uses and will not create a negative impact to the adjacent residential uses or cause harm to the general public, assuming that the negative impacts from noise that exist at the current time are reduced. This condition is key to making this extension viable. There was substantial repeat testimony at the hearing that the encroachment area is a source of noise. Several persons testified to this fact, and it was raised in the Hearing brief of Opposition counsel. I find there is substantial evidence to support a finding that there is a frequent and unwanted amount of noise escaping from the encroachment area. It would be unfair to surrounding residents to allow the encroachment to continue in its present condition, which according to the 2001 building permits consists of wood framing with drywall covering. There is no showing that any sound insulation was utilized at all, and in fact the consistent comments regarding noise emanating from the area where food was being processed underlies this fact. The owner is really asking for what amounts to a 14 year extension given the 4 years that have expired since he could have legally been required to abate this use. It is inherently fair that if the owner is to experience a continued ability to utilize this area for his own profit, then the surrounding neighbors should be granted some relief from what is already some level of nuisance. e. The cost and feasibility of relocating the uses to another site cannot be accommodated within the one-year abatement period. Finding: If the encroachment area was to be removed or relocated, the only place on the restaurant property where this might occur is the upstairs residential area. The inherent cost of moving to this location, even if feasible at all, would be great. It is clear that the cost of moving to this location would be great, and certainly would not generate any additional income for the restaurant and definitely not something that would be recoverable in a one-year period. Facts in Support of Finding: The encroachment area is used for food preparation and storage for the restaurant. Relocation of this component of the kitchen operations Planning Commission - November 3, 2016 Item No. 3j Additional Materials Received The Village Inn OutdocCOirdfiblWrpdPbfailgPA2015-016) Hearing Officer Resolution Abatement Extension (123 Marine Avenue) Page 17 of 18 would require a complete redesign of the kitchen, reduction in seating area, and change in access. Even if storage could be relocated to the upstairs area, that would require engineering, potential revisions to the area, and a disruption of the existing operation. 3. COMPLIANCE WITH CEQA. As noted under preliminary legal issues above, this activity has been determined to be categorically exempt under the requirements of the California Environmental Quality Act under Class 1 (Existing Facilities). This class of projects has been determined not to have a significant effect on the environment and is exempt from the provisions of CEQA. This activity is also covered by the general rule that CEQA applies only to projects that have the potential for causing a significant effect on the environment (Section 15061(b)(3) of the CEQA Guidelines.) It can be seen with high probability that there is little or no possibility that this activity will have a significant effect on the environment and therefore it is not subject to CEQA. Further, it is found that there is no applicable exception to the exemption such that would trigger further analysis and review under CEQA as analyzed in some detail above. This issue has been analyzed above with respect to the challenge raised by Opposing counsel. Please refer to that analysis for further legal review. It is the opinion of the Hearing Officer that compliance with CEQA has occurred. NOW THEREFORE, BE IT RESOLVED: Section 1. Based on the record herein, the Hearing Officer of the City of Newport Beach hereby conditionally approves the requested Abatement Period Extension of ten years (PA2016-133), subject to the findings, condition, and considerations set forth above. Section 2. The Abatement Period Extension for the property located at 123 Marine Avenue, and legally described as Balboa Island Sec 4 Lot 15 Blk & Lot 16 Blk 1 Ex E 10 Ft Lots 15, is hereby extended for ten years and will expire on November 3, 2026, at which time the encroachment area shall be demolished, unless an additional extension of the abatement period is granted, or an appropriate change in the Zoning District and the General Plan Land Use Designation are approved and adopted, or a change to the Zoning Regulations pertaining to nonconforming uses or their abatement are approved and adopted prior to that date. However, if the condition relating to noise abatement is not substantially implemented within 90 days, the extension shall return to the Hearing Officer for further review. It should be noted that this extension is only in full force and effect as long as there is compliance with the required condition. Section 3. This action shall become final and effective fourteen (14) days after the adoption of this Resolution unless within such time an appeal is filed with the City Clerk Planning Commission - November 3, 2016 Item No. 3j Additional Materials Received The Village Inn OutdocCO)rdfiblWrpdPbfailgPA2015-016) Hearing Officer Resolution Abatement Extension (123 Marine Avenue) Page 18 of 18 in accordance with the provisions of Title 20, Planning and Zoning, of the Newport Beach Municipal Code, or unless there is a failure to comply with the condition attached to this approval. PASSED, APPROVED, AND ADOPTED THIS 2nd DAY OF NOVEMBER, 2016. !sJ William B. 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MU-Mm —2o,ms 203 �zna oe n.a�- e4s G._ Z M2 RBI :0, RBI ; ,;. 2" 201 o200R BI PARK AVE a i" , 2l , 12i. 122 Y2 ,t4i' f22 ,24 FF 37 2: MU W2 2, ,22 R-BI+ ,22 JR-41B BI I RBI R- R R-BI v RBI I �, U R-BI R-BI R-BI 2 BAY FRONT ALLEYS d' m OS I OS Community Development Department- Planning Division 3 Planning Commission - November 3, 2016 ting 16) Site Photographs — Village Inn 01 +I } �D_a s 07/13/2012 Community Development Department - Planning Division 4 Planning Commission - November 3, 2016 ting 16) Revisions to Application Eliminated Request for Land Use Amendment Encroachment subject to to year abatement Acoustic Analysis Noise Analysis of Current & Proposed Operations Compliance with Municipal Code Design Recommendations I. a_ Relocate Bike Racks A ® -i� ' t �` 07/13/2012 Community Development Department - Plannin Planning Commission - November 3, 2016 ting Application 16)_ Outdoor Dining Zoo square foot outdoor dining area No more than 16 seats (as conditioned) 7am to gpm or lopm Close when * , ■ „ entertainment offered Public right of way Community Development Department - Planning Division 6 Planning Commission - November 3, 2016 ting 16) Floor Plan rL:7i - awl � 6 �l i f wrwr � t �T.WR.wT �i c "• mold .7�.r i _w ai I i1 Y,wM � 1m W1 ...� CJ asav+r�w �8 LO A1SGA C. n L➢ATM4 C_- � rwe• re I � r rrr ,NL F+YY, I I Hew L FlR6Ir T!LOFLIO CK ILMI a 0 p a a c 07/2312012 Community Development Department - Planning Division 7 Planning Commission - November 3, 2016 ting 16) Conditional Use Permit m _ •'ti D E ey • �c wmwr�w S m © ---------- - - - MM ° ent Department- Planning Division 8 Planning Commission - November1 • • Outdoor Dining NMA REMOVeL PATIO II111111II IIIIIIIIII IIIIIIIIII!� IIIIIIIIII ,' 1111111111111_IIIIIIIIIIIIIIIII� III!II!,III!I� III1111111 �IIIIIIIIII -- v 200square feet Raise . • match interiordecorative metal railing attenuatingm Full height, blofold, sound • • • , v i Community - - • •ment Depar Planning Commission - November 3, 2016 ting 16) Bike Corrals _ y 1 M' t 5 ■ More than 20 bikes ■ 20o and/or 300 Marine Ave. . ■ $12, 00o contribution from Applicant ■ Install prior to issuance of building permit ■ Council to authorize relocatation Community Development Department- Planning Division 10 Planning Commission - November 3, 2016 ting 16) Existin • Regulations 2009 — Use Permit remodel and alcohol license No dancing Close at midnight Doors on Park Avenue closed after Bpm 07/13/2012 Community Development Department - Planning Division 11 Planning Commission - November 3, 2016 ting 16) Existing Regulations zoiz - Live Entertainment Permit No more than 5 musicians, Windows and doors to remain closed during entertainment, Noise levels not to exceed 6o dB(A) on sidewalk; noise spikes up to 8o db(A) on sidewalk adjacent to exterior doors, and Section 5 . 28 . 04o( B)(3) is reasonably met by not exceeding the noise levels stated above . 07/13/2012 Community Development Department - Planning Division 12 Planning Commission - November 3, 2016 ting 16) Existing Regulations Municipal Code Chapter 10 . 26 Between Between 7:OOAM and 10:00PM 10:OOPM and 7:00AM Location Interior Exterior Interior Exterior Residential Property 45dBA 55dBA 40dBA 50dBA Commercial (subject site) -- 60dBA -- 50dBA If the ambient noise level exceeds the resulting standard, the ambient shall be the standard. Community Development Department- Planning Division 13 Planning Commission - November 3, 2016 ting 16) Existing Conditions Police Department/Code Enforcement ■ Calls for Service/Complaints Related to Noise 203-2 — 6 calls 203-3 — 3- call 203-4 — o calls 203-5 — 3-2 calls 203-6 — 3 calls ■ Bar Checks / Patrol Checks Focused patrol in 203-5 Ongoing Random Bar Checks by Code Enforcement Violations ■ No Notices of Violation issued for noise concerns ■ 2015 — Unpermitted development 07/13/2012 Community Development Department- Planning Division sq Planning Commission - November 3, 2016 ting 16) Conditions of 1 . � z a c�CIFORN�' 1. Council Policy L- 21 ( #32) 2 . Relocation and installation of bike racks (#32 and #33) 3 . Outdoor hours 7am to qpm (and lopm ) (# 15) 4. Glass doors to be noise attenuated (#16) 5 . Acoustical panels ( # 17) 6. Reduce to 4 musicians ( # 19) 1. Operators License ( # 23) 07/13/2012 Community Development Department - Planning Division 15 Planning Commission - November 3, 2016 ting 16) Recommendation a.C'dt/FORN�' Adopt Resolution to Approve Use Permit Satisfaction of the required findings Inclusion of additional noise attenuation measures demonstrates compatibility with neighborhood Implementation of Land Use Policy 5 .3 . 4 - Activate sidewalks with the inclusion of outdoor seating that extends interior uses to the sidewalk 07/13/2012 Community Development Department - Planning Division 16 1I a ti 4 M Planning Commission - November 3, 2016 Item No. 31 Additional Materials Presented at Meeting The Village Inn Outdoor Dining Use Permit (PA2015-016) The Village Inn Amendment to U _. ter Outdoo inin 16 -- R4E�IJISI Il�(n D���tRS {.+'w�' I I esentation to the or Beach Planning Commission November 3 , 201-6 t'' Planning Commission - November 3, 2016 Item No. 31 Additional Materials Presented at Meeting The Village Inn Outdoor Dining Use Permit (PA2015-016) Aerial of Village Inn and Surrounding Uses I 7i4l '' i pl - k Planning Commission - November 3, 2016 Item No. 31 Additional Materials Presented at Meeting The Village Inn Outdoor Dining Use Permit (PA2015-016) The Village Inn: An Important Piece of Island History F„ rte. C - 1 Y1//11 fNi IWNi .. yp nw E Planning Commission - November 3, 2016 Item No. 31 Additional Materials Presented at Meeting The Village Inn Outdoor Dining Use Permit (PA2015-016) History of the Village Inn • Original restaurant, named Hershey's Cafe, was built in 1932 • Originally had outdoor seating • Tony Hershey opened a plant nursery adjacent to the Cafe • Property has evolved numerous times in its 8o-year history • In 1956, Hershey's Cafe became the Village Inn • In 2002, a permit was issued allowing live entertainment at the Village Inn Planning Commission - November 3, 2016 Item No. 31 Additional Materials Presented at Meeting The Village Inn Outdoor Dining Use Permit (PA2015-016) Dan Miller, Village Inn Operator Invited to serve on the Board of the BIIA and Merchants Association due to his character and integrity Enhanced the 8o-year-old restaurant, improved the menu and is working to add to the Island ambiance in a Mixed Use zone Dan and Jessica Miller Planning Commission - November 3, 2016 Item No. 31 Additional Materials Presented at Meeting The Village Inn Outdoor Dining Use Permit (PA2015-016) The Island Experience Community - { Gathering Places Planning Commission - November 3, 2016 Item No. 31 Additional Materials Presented at Meeting The Village Inn Outdoor Dining Use Permit (PA2015-016) The Island Experience Fine Dining r Experiences Planning Commission - November 3, 2016 Item No. 31 Additional Materials Presented at Meeting The Village Inn Outdoor Dining Use Permit (PA2015-016) 49 The Island Experience LIA Vibrant ; �.� P 71 cc i— G ° `- Planning Commission - November 3, 2016 Item No. 31 Additional Materials Presented at Meeting The Village Inn Outdoor Dining Use Permit (PA2015-016) Public Use on Marine Avenue • Outdoor Private Parties are frequently held on Balboa Island • BIIA and the Merchants Association hosts events on Marine Avenue extending into the loo Block: • Balboa Island Parade • Recent loo Year Anniversary • BIIA: • Sponsored parties at the 123 Marine property on Parade Day for two consecutive years • Hosts the Santa visit and refreshments during the Annual Christmas Boat Parade Planning Commission - November 3, 2016 Item No. 31 Additional Materials Presented at Meeting The Village Inn Outdoor Dining Use Permit (PA2015-016) In March 2009, the Planning Commission approved restaurant remodel including configuration of dining room and bar (UP2009-002) • Condition #30 of Use Permit stipulated that owner/operator make a good faith effort of increasing food sales to 40% or more • In 2012, when the current owner/operator purchased the properties, food sales were 17%; today they are 44% and trending upwards • Current owner/operator increased menu choices from bar food to fine dining Planning Commission - November 3, 2016 Item No. 31 Additional Materials Presented at Meeting The Village Inn Outdoor Dining Use Permit (PA2015-016) Project Objectives ■ Enhance the Island experience ■ Attenuate noise more effectively ■ Further a fine dining experience by offering al fresco seating ■ Provide a community gathering place ■ Remain consistent with ABC License and Entertainment Permit ■ Commit to additional conditions of approval Planning Commission - November 3, 2016 Item No. 31 Additional Materials Presented at Meeting The Village Inn Outdoor Dining Use Permit (PA2015-016) Proposed Outdoor Dining Plan ■ Request an Amendment to an existing Conditional Use Permit (UP2009-002) ■ Enrich Island experience with 200 square-foot outdoor dining area ■ Enhance dining with seven tables and 16 seats r co•s 127 ............... n i ' V Planning Commission - November 3, 2016 Item No. 31 Additional Materials Presented at Meeting The Village Inn Outdoor Dining Use Permit (PA2015-016) Consistency with City Planning Documents • Outdoor dining area is consistent with the General Plan, Zoning and CLUP • General Plan recommends the "...inclusion of outdoor seating or other amenities that extend interior uses to the sidewalk..." in Mixed Use Districts ■ Existing outdoor dining and seating areas along Marine • Outdoor dining at Wilma's, Caio and Barola • Informal seating on benches along the sidewalks of Marine for patrons of Starbuck's, Dad's and others Planning Commission - November 3, 2016 Item No. 31 Additional Materials Presented at Meeting The Village Inn Outdoor Dining Use Permit (PA2015-016) Outdoor Dining Near Residential Uses in Newport Beach v. x ♦ " J O S T __ � - � JLC i y • �'�- r Alta Cafe, Cannery Village El Ranchito, Corona del Mar Planning Commission - November 3, 2016 Item No. 31 Additional Materials Presented at Meeting The Village Inn Outdoor Dining Use Permit (PA2015-016) Proposed Outdoor Dining Plan Elements ■ Replace old windows along Marine Avenue with full height, bi-fold or multi-fold, noise attenuating doors with double-paned windows ■ Plexiglass barrier around southern edge of outdoor dining ■ Retain sidewalk at minimum six feet wide Relocate bike racks to i bike corrals in Blocks 200 -300 Marine -r Avenue -' `- "" ---- New bike corrals to accommodate up to 44 bikes _ J Planning Commission - November1 • Item No. Additional Materials Presented at Meeting The Village • • • • • Proposed Building Elevation 1, NEA REYXE� PATIO Planning Commission - November 3, 2016 Item No. 31 Additional Materials Presented at Meeting The Village Inn Outdoor Dining Use Permit (PA2015-016) New ADA Access at Corner ALGA Q i W Z Q C/ 53J1\<?AViLR AW aGGLY 9..0 V/!LC'ffXr T.'A0.OIEpAb 4 NEW REMODEL / � 1 CORNER PLAN 91P'Y Planning Commission - November 3, 2016 Item No. 31 Additional Materials Presented at Meeting The Village Inn Outdoor Dining Use Permit (PA2015-016) Existing Bike Racks r Planning Commission - November 3, 2016 Item No. 31 Additional Materials Presented at Meeting The Village Inn Outdoor Dining Use Permit (PA2015-016) Bike rack usage survey indicated only 19% of bike rack users were VI patrons • Bike Racks to be removed away from loo Block of Marine Avenue • New bike corrals to be installed near merchants on Marine Avenue Planning Commission - November 3, 2016 Item No. 31 Additional Materials Presented at Meeting The Village Inn Outdoor Dining Use Permit (PA2015-016) Bike Rack Relocation Plan Jm � J � � � ■ Only 19 / of people who use r�-9 bike racks in front of IMW ME AVE the Village Inn are patrons ■ New Bike racks to be relocated to 200-300 J blocks of Marine Avenue to accommodate up to 44 bikes in bike corrals with $12,000 fee by applicant Planning Commission - November 3, 2016 Item No. 31 Additional Materials Presented at Meeting The Village Inn Outdoor Dining Use Permit (PA2015-016) Potential Bike Corral Locations J s. Merchant's Association in complete support Planning Commission - November 3, 2016 Item No. 31 Additional Materials Presented at Meeting The Village Inn Outdoor Dining Use Permit (PA2015-016) Potential Bike Corral Locations i Members of BIIA Board indicated support and have some funds for new bike racks Planning Commission - November 3, 2016 Item No. 31 Additional Materials Presented at Meeting The Village Inn Outdoor Dining Use Permit (PA2015-016) Bike corrals on Marine blocks Zoo and 300 The layout for the bike corrals was voted on and affirmatively supported by the 300 Block West and East CAD Layout for Entl}IRd The 200 Block West and Sides Advisors by Jenn Bouno East Sides DERO Balboa Island Merchants CUSTOMrotluct Cycle Stoll Elite and Cycle Stall Elite 8 bike capacity JB 10/18/2016 14 bake capacity Association on Oct. 19, 2016 Im m - - - Planning Commission - November1 • Item No. Additional Materials Presented at Meeting The Village • • • • • Acoustical Analysis Conducted MeasurementNoise • tions Legend ■. .i. . . Irl ``y:''"'`'�`l�t � ` >. Village Restaurant 0 Interior Noise Measurment 0 Exterior Noise Measurment x.'-11 � . •� �.` t _,�-� � ` ■s�i �� Planning Commission - November 3, 2016 Item No. 31 Additional Materials Presented at Meeting The Village Inn Outdoor Dining Use Permit (PA2015-016) Acoustical Analysis Ambient Noise Contours prior to entertainment y �l Noise Contour Legend 4o dBA 45 dBA 5o dBA 55 dBA 6o dBA 65 dBA 7 1 i 1� , Planning Commission - November 3, 2016 Item No. 31 Additional Materials Presented at Meeting The Village Inn Outdoor Dining Use Permit (PA2015-016) Future Noise Environment with Upgraded Sound Attenuating Windows and Seals Yw Noise Contour Legend ,rt 4o dBA 45 dBA 50 dBA F 55 dBA z 6o dBA _ 65 dBA 4 Planning Commission - November 3, 2016 Item No. 31 Additional Materials Presented at Meeting The Village Inn Outdoor Dining Use Permit (PA2015-016) Patron Noise Level Contours fNoise Cootour Lmend _4o dBA r S fs�r _ r _45dBA ®5o dBA 55 dBA 6o dBA r W� • _65 dBA _ r r The Vi1hW Inn Restaurant Patton Noise Level Figure 1 Planning Commission - November 3, 2016 Item No. 31 Additional Materials Presented at Meeting The Village Inn Outdoor Dining Use Permit (PA2015-016) Key Findings of Updated Noise Study ■ Ambient daytime noise measurements nearby the Village Inn ■ Dominant existing noise environment was: • Localized vehicle traffic on Park Avenue and Marine Avenue • Noise from pedestrians walking within the neighborhood • Aircraft overflight near the restaurant Existing ambient noise levels were documented to be higher than the Noise Ordinance daytime threshold Planning Commission - November 3, 2016 Item No. 31 Additional Materials Presented at Meeting The Village Inn Outdoor Dining Use Permit (PA2015-016) Noise Study of Patron Noise Levels: Conclusion ■ With incorporation of proposed noise reduction measures: • With doors open and outdoor dining for 16 patrons, noise levels from interior and exterior patrons will be below the 55 dBA daytime noise limit and below the existing ambient noise levels at the adjacent residential property line Planning Commission - November 3, 2016 Item No. 31 Additional Materials Presented at Meeting The Village Inn Outdoor Dining Use Permit (PA2015-016) Additional Noise Attenuation • Conditions of approval: • Windows upgraded to dual paned with STC rating of 34 • Folding doors closed and completely sealed prior to entertainment • Outdoor dining patrons will be moved inside prior to entertainment • No televisions, amplified music, sound or paging systems shall be allowed in the outdoor seating area. • A 5-foot high plexiglass (or similar transparent material) shall be placed at the southerly end of the outdoor seating to further reduce noise levels of the outdoor dining. Planning Commission - November 3, 2016 Item No. 31 Additional Materials Presented at Meeting The Village Inn Outdoor Dining Use Permit (PA2015-016) New Noise Levels After Attenuation • With new noise attenuating windows and thresholds around doors: • Noise will be approximately 45 dBA at property line of 123 Marine during the nighttime, below noise ordinance requirements • In compliance with Section 7 of Entertainment Permit Planning Commission - November 3, 2016 Item No. 31 Additional Materials Presented at Meeting The Village Inn Outdoor Dining Use Permit (PA2015-016) Additional Noise Level Reduction • Per Acoustical Evaluation prepared by KFEB Acoustics in March 20, 2016 and November 2, 2o16: • Incorporating proposed upgrade modifications and noise reduction measures, noise at the adjacent residential property line will be below the 5o dBA nighttime property line noise threshold limit • With mitigation, project does NOT exceed City's noise standards Planning Commission - November 3, 2016 Item No. 31 Additional Materials Presented at Meeting The Village Inn Outdoor Dining Use Permit (PA2015-016) Entertainment Permit Stipulates No More Than " . . .five musicians and/or vocalists. . ." Entertainment style modified n Many contracted entertainers 1 + � are groups of only one, two or k_ `= three w Village Inn will formally limit - - the number of musicians to no more than four Planning Commission - November 3, 2016 Item No. 31 Additional Materials Presented at Meeting The Village Inn Outdoor Dining Use Permit (PA2015-016) Recent Improvements to Address Noise and Vibration • New noise attenuating window installed facing 123 Marine Avenue • Noise attenuating paint applied to inside surfaces of the Village Inn - ;�� oA �► 1 • Acoustical panels installed • Curtains installed • Window controls removed to prohibit patrons from opening windows • Circular noise barrier placed around roof top blower Planning Commission - November 3, 2016 Item No. 31 Additional Materials Presented at Meeting The Village Inn Outdoor Dining Use Permit (PA2015-016) Senior Code Enforcement Officer, Cassi Palmer, testified at the December 2015 Planning Commission Hearing that ". . .complaints have been made relative to base sounds but they have not violated the City's noise ordinance." Planning Commission - November 3, 2016 Item No. 31 Additional Materials Presented at Meeting The Village Inn Outdoor Dining Use Permit (PA2015-016) Since March, 2016, the following mitigation measures were taken: • Noise attenuating window installed • Noise attenuating paint applied • Noise attenuating acoustic panels installed • Fewer musicians than allowed by the Entertainment Permit perform Planning Commission - November 3, 2016 Item No. 31 Additional Materials Presented at Meeting The Village Inn Outdoor Dining Use Permit (PA2015-016) Hours of Restaurant Deliveries Applicant willing to restrict truck deliveries to no earlier than 6:0o am and not past 9 : 00 pm Planning Commission - November 3, 2016 Item No. 31 Additional Materials Presented at Meeting The Village Inn Outdoor Dining Use Permit (PA2015-016) Widespread Support • The proposed outdoor dining has support from members of the Balboa Island Improvement Association, and unanimous support from the Balboa Island Merchants Association. • The project also has extensive support from residents surrounding The Village Inn. Planning Commission - November • Item No. 31 Additional Materials Presented at Meeting The Village • • • • • Balboa Island Supporters o a u!s/20�� —� � :. �: `E.❑_ _: V �. as+t all:^e:av pl � .. . jf��/; ��� `:.. ',.� . ? -. .. � - ' .� a- rc' ....,•►4 ice:-• _. , � �r� ;•, .� �r, p t Q �; fyT�f �" �' J •yrs.,. `�. •1 �' +.J♦ �F�. D .. '�p °y, Ifs ' ° p Q _• - .- � - _ - _ .. = _ � � �� _ .. � _ �w },�O�„ " ° p ❑ ° 4 _ .. ; C�aQgl�Eart " ' .i! u'tees °� ❑ Ima Date:2/2/2016 33°36'22.21YN 11J°53'33.16"W�eleti k3 R e aIt 4467 R O Planning Commission - November 3, 2016 Item No. 31 Additional Materials Presented at Meeting The Village Inn Outdoor Dining Use Permit (PA2015-016) rM� NB1 Request Approval with Conditions v _ z K d 127 It xl I � SIS-E PLA\ Planning Commission - November 3, 2016 Item No. 31 Additional Materials Presented at Meeting Slide 4U The Village Irin n11td-A-A-Y DiniRg Use Permit (PA2015-016) CM3 Insert colored site plan here Carol McDermott, 11/02/2016 NBI Title for slide? Nancy Brown, 11/02/2016 Planning Commission - November 3, 2016 Item No. 31 Additional Materials Presented at Meeting The Village Inn Outdoor Dining Use Permit (PA2015-016) End of presentation - these slides will be hidden Planning Commission - November 3, 2016 Item No. 31 Additional Materials Presented at Meeting The Village Inn Outdoor Dining Use Permit (PA2015-016) Property Maintenance at 123 Marine • Landscapers tend to the property every Monday • Complaints about dumping refers to the remodeling period • Due to difficulties disposing of large items like booths, and arranging for a trash bin on the public street, it was determined utilizing adjacent lot was the best alternative • Booths were only on the site for 20-25 days, while being removed and disassembled • Adjacent owner also used the lot at 123 for construction mobilization during a remodel Planning Commission - November 3, 2016 Item No. 31 Additional Materials Presented at Meeting The Village Inn Outdoor Dining Use Permit (PA2015-016) Use of 123 Marine by Restaurant Employees for Smoke/Food Breaks Village Inn staff members have not been allowed on the property at 123 Marine in over 16 months Planning Commission - November 3, 2016 Item No. 31 Additional Materials Presented at Meeting The Village Inn Outdoor Dining Use Permit (PA2015-016) Acoustical Evaluation Prepared by KFEB Acoustics on March 20 , 2016 • City's noise standard for commercial is 6o dBA at night • City's noise standard for residential is 5o dBA at night • With improvements noise will be approximately 45 dBA at property line of 123 Marine during the nighttime Planning Commission - November 3, 2016 Item No. 3m Additional Materials Presented at Meeting The Village Inn Outdoor Dining Use Permit (PA2015-016) Within 3 months of certificate of occupancy and full operation of the outdoor dining, the applicant shall undertake actual noise measurements of the noise generated by the outdoor dining. The analysis shall be considered by the Planning Commission at a notice public hearing to ensure compliance with conditions of approval and the City's Noise Ordinance. Modifications to the conditions of approval may be required if the project is not in compliance.