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HomeMy WebLinkAbout15 - Appeal of the Approval of the Village Inn Use Permit and Waiver of City Council Policy L-21 located at 127 Marine Avenue (PA2015-016)N"EWPOFff REACH 'City Council Staff Report January 24, 2017 Agenda Item No. 15 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Kimberly Brandt, Community Development Director - 949-644-3232, kbrandt@newportbeachca.gov PREPARED BY: Brenda Wisneski, Deputy Community Development Director— bwisneski@newportbeachca.gov PHONE: 949-949-644-3297 TITLE: Appeal of the Approval of the Village Inn Use Permit and Waiver of City Council Policy L-21 located at 127 Marine Avenue (PA2015- 016) ABSTRACT: This item is an appeal of the Planning Commission's approval of the Use Permit that allows a 200 -square -foot outdoor dining area for the Village Inn restaurant to be located in the public right-of-way on Marine Avenue, where bike racks currently exist. The design of the dining area also requires a waiver of portions of City Council Policy L-21. To offset the loss of the bike racks, the applicant is required to fund the relocation and construction of new bike corrals in the 200 and 300 blocks on Marine Avenue. RECOMMENDATION: a) Conduct a public hearing; b) Determine that the project is categorically exempt from the California Environmental Quality Act (CEQA) Guidelines per Section 15303 - Class 3 (Construction or Conversion of Small Structures) in that the improvements associated with the outdoor dining area are considered accessory to the main structure; c) Adopt Resolution No. 2017-9, A Resolution of the City Council of the City of Newport Beach, California, Upholding the Planning Commission's Approval of use Permit No. UP2016-012 to Establish an Outdoor Dining Area Associated with an Existing Restaurant at 127 Marine Avenue (PA2015-016); 15-1 Appeal of the Approval of Village Inn Outdoor Dining Use Permit and Waiver of Council Policy L-21 January 24, 2017 Page 2 d) Waive portions of City Council Policy L-21, "Sidewalk Cafe Standards and Procedures," to allow for a six-foot wide minimum pedestrian clear width sidewalk in a potentially heavy pedestrian traffic area; to allow a barrier that would be permanently bolted in place; to allow the outdoor dining area to be maintained above the level of the existing sidewalk; and to allow the outdoor dining area to be located less than ten feet from the corner of the building; e) Require Applicant to obtain an Annual Outdoor Dining Encroachment Permit and pay all applicable fees; and f) Direct staff to relocate the existing bike racks adjacent to the Village Inn to new bike corrals in the 200 and 300 blocks of Marine Avenue. FUNDING REQUIREMENTS: Pursuant to the Planning Commission's action, Condition of Approval No. 33 of the Use Permit requires the applicant to pay $12,000 to the City for the purchase and installation of the new bike corrals and other related public improvements on Marine Avenue. DISCUSSION: Project Setting The project site is located on Balboa Island on the southwest corner of Marine Avenue and Park Avenue. Balboa Island consists of mostly residential properties, with Marine Avenue as the commercial center of the Island. Along Marine Avenue are a variety of retail sales and service uses including restaurants, ice cream and frozen yogurt shops, clothing boutiques, hair salons, and coffee shops. Fire Station No. 4 is located across the street, to the east of the property. Single-family and two -unit residences are located south of the property. The Village Inn occupies a two-story building at the corner of Marine Avenue and Park Avenue. The lot is approximately 4,500 square feet in area. The Village Inn restaurant is on the first floor with a residential unit on the second floor. The restaurant is nonconforming in terms of required off-street parking. The restaurant operates from 7:00 a.m. to 12:00 a.m. daily with a Type 47 Alcoholic Beverage Control License and live entertainment. A portion of restaurant structure, which is utilized for kitchen operations, encroaches onto the residential property to the south, at 123 Marine Avenue. The subject property and 123 Marine Avenue are owned by the same entity. The restaurant encroachment is a nonconforming use on the residential property and is therefore subject to the City's abatement procedures. On November 2, 2016, the City's Hearing Officer approved a 10 -year abatement period for the subject encroachment. 15-2 Appeal of the Approval of Village Inn Outdoor Dining Use Permit and Waiver of Council Policy L-21 January 24, 2017 Page 3 Proposed location of outdoor dining area Village Inn from a southwest view Background The building was constructed and the restaurant was established in 1933 when the City did not require a use permit. In 2002, a Live Entertainment Permit was issued allowing up to five musicians and requiring all exterior doors and windows to be closed during live entertainment events. There were no restrictions related to hours or days live entertainment could be offered. On March 19, 2009, the Planning Commission approved Use Permit No. UP2009-002, authorizing the remodel of the restaurant which included converting a portion of the dining room to bar seating. See Attachment B for Use Permit UP2009-002 and meeting minutes. The Planning Commission also found the Use Permit to be consistent with the Newport Beach Municipal Code (NBMC) related to alcoholic beverage sales. The Use Permit included the following conditions to minimize potential impacts to the surrounding neighborhood: Condition #27 — No dancing shall be permitted on the premises. Condition #29 — Closing the restaurant by midnight. The restaurant could previously operate to 2:00 a.m. Condition #30 — Planning Commission to conduct one-year review. The review was conducted on April 8, 2010 and the business was determined to be in compliance with the Use Permit; no further review was required. Condition #31 — The doors facing Park Avenue shall be used for emergency use only after 8:00 p.m. In 2012, the property was acquired by the current owner and the Live Entertainment Permit was reissued to the new owner reflecting the conditions from UP2009-002 and the 2002 Live Entertainment Permit. Today, there are no restrictions on the hours or days live entertainment may be offered. The 2012 Live Entertainment Permit is 15-3 Appeal of the Approval of Village Inn Outdoor Dining Use Permit and Waiver of Council Policy L-21 January 24, 2017 Page 4 provided as Attachment C. The conditions of Use Permit UP2009-02 and the 2012 Live Entertainment Permit would remain in effect if the subject Use Permit for outdoor dining is approved. Current Application The proposed project was scheduled for Planning Commission consideration on October 20, 2016 but was continued. On November 3, 2016, the Planning Commission approved the Use Permit to establish a 200 -square -foot outdoor dining area to be located along the Village Inn's frontage on Marine Avenue, within the public right-of- way. Planning Commission Resolution No. 2035 provides the written findings and conditions of approval (Attachment D). The project plans are provided as Attachment E. On November 17, 2016, an appeal was filed stating concerns with: 1) proximity of the outdoor dining to residences, 2) no other City outdoor dining areas which are adjacent to properties zoned residential; and 3) "code violations" from the current restaurant operations (Attachment F). Pursuant to NBMC Section 20.64.030.C.3 (Conduct of Hearing), a public hearing on an appeal is conducted "de novo," meaning that it is a new hearing and the prior decision of the Planning Commission to approve the application has no force or effect. The City Council is not bound by the Planning Commission's prior decision or limited to the issues raised by the appeal. The staff reports and meeting minutes are attached to this report for review: Attachment G — Planning Commission Staff Report Dated October 20, 2016 Attachment H — Planning Commission Staff Report Dated November 3, 2016 Attachment I — Meeting minutes from November 3, 2016 An interior wall was removed from the dining room without permits following the approval of Use Permit UP2009-002. Approval of the subject Use Permit would authorize the floor plan provided in Attachment E and bring the current floor plan into compliance. Use Permit The proposed outdoor dining area would be accessed from new glass, accordion doors that would replace the existing windows. The dining area would require a raised concrete pad in order to be at the same level as the restaurant's interior finished floor to ensure proper ADA access. The dining area also would be enclosed with a 42 -inch -high wrought iron guardrail and accommodate up to 7 tables and 16 seats. The sidewalk would be maintained at 6 -feet wide. The proposed outdoor seating area requires the relocation of bike racks that accommodate 20 bikes. The applicant explored several areas for the racks in 15-4 Appeal of the Approval of Village Inn Outdoor Dining Use Permit and Waiver of Council Policy L-21 January 24, 2017 Page 5 consideration of residents' concerns that the racks not be located near homes, and the City's interest that an equivalent number of bikes be accommodated in a central location on Marine Avenue. The need for bike racks on Balboa Island, and in particular on Marine Avenue, is recognized in the City's Bicycle Master Plan and has been discussed within the community for several years. Should the City Council uphold the Planning Commission's decision, staff is proposing that the existing bike racks be relocated into several new bike corrals along the 200 and 300 blocks of Marine Avenue. The City will design and install the new bike corrals; however, the applicant is conditioned to pay $12,000 to the City for the purchase and installation of the new bike corrals. Staff's proposed bike corral concept plans were approved by the Balboa Island Merchants Association on October 19, 2016. Staff is currently working on final plans, including exact locations and type of bike corral. Conditions of Approval: At the applicant's request, and to address concerns from neighbors regarding potential noise impacts, the Planning Commission included the following conditions of approval: Limited outdoor seats to no more than 16 seats (Condition #14) Clarified the hours of operation (Condition #15) Clarified that the outdoor dining area would be closed and not occupied when live entertainment was offered inside the restaurant (Condition #15) Detailed the required noise attenuation measures (Conditions #16 and #17) Limited Live Entertainment 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, including a financial contribution of $12,000 (Conditions #32 and #33) Pursuant to Chapter 5.25 of the Newport Beach Municipal Code, the Conditional Use Permit also requires the owner/operator to obtain an Operator License from the Newport Beach Police Department. Basis of Appeal The appellant resides at 121 Marine Avenue, which is located south of the property. The Village Inn and the appellant's property are separated by a parcel containing a single- family residence which is also owned by the property owner of the Village Inn. The appellant's concerns are discussed below: 1) Proximity of the outdoor dining to residences Staff's response. The project site is located in the Mixed Use zoning district at the southwest corner of Marine Avenue and Park Avenue. As shown in Figure 1, residentially -zoned properties containing single-family and two -unit residences are 15-5 Appeal of the Approval of Village Inn Outdoor Dining Use Permit and Waiver of Council Policy L-21 January 24, 2017 Page 6 located to the south and west. Fire Station No. 4 is located across Marine Avenue, and the nearest residence is 35 feet from the restaurant. As part of this application, the applicant had two noise assessments prepared, one associated with existing live entertainment and the other related to noise levels generated by 16 patrons dining on the outdoor patio. The studies are provided as Attachment J. The assessments concluded that the proposed project will comply with the City's noise standards. Figure 1 Zoning uistricis The outdoor dining area has been conditioned to reduce potential impacts to surrounding uses, including limiting hours of operation from 7.00 a.m. to 9.00 p.m. daily, and requiring sound -attenuated building construction. The patio doors, which are to be made of sound - attenuated material, will be closed at 9.00 p.m., or earlier if live entertainment is underway inside of the restaurant, to maintain compatibility with the surrounding residential neighborhood. 2) No other outdoor dining areas in the city which are adjacent to properties zoned residential Staff response. It is typical in the City for nonresidential properties to be located adjacent to residential uses. Restaurants, including outdoor dining, can be found in Balboa Village, Lido Village, Corona del Mar, Cannery Village, and McFadden Square. To maintain compatibility between the uses, restaurants are commonly conditioned in respect to the hours of operation and are required to close doors and windows during late evenings. The proposed dining area has been conditioned accordingly, and a noise assessment confirms the use of the outdoor dining area would comply with the City's noise standards. 3) "Code violations" from the current business 15-6 - R -BI-- ..A - -- - - RBI.. R-61 R -BI. - - _..RBI y, ..� F� - R -BI R -BI - ..< PF...- - MU -W2: .,. ... _. RBI .:R_BI -RBI PF - - MU W2 "• - -, ,.-.RBI _- .. R -BI - - R -BI R -6I" c m c ti m 0S 0S The outdoor dining area has been conditioned to reduce potential impacts to surrounding uses, including limiting hours of operation from 7.00 a.m. to 9.00 p.m. daily, and requiring sound -attenuated building construction. The patio doors, which are to be made of sound - attenuated material, will be closed at 9.00 p.m., or earlier if live entertainment is underway inside of the restaurant, to maintain compatibility with the surrounding residential neighborhood. 2) No other outdoor dining areas in the city which are adjacent to properties zoned residential Staff response. It is typical in the City for nonresidential properties to be located adjacent to residential uses. Restaurants, including outdoor dining, can be found in Balboa Village, Lido Village, Corona del Mar, Cannery Village, and McFadden Square. To maintain compatibility between the uses, restaurants are commonly conditioned in respect to the hours of operation and are required to close doors and windows during late evenings. The proposed dining area has been conditioned accordingly, and a noise assessment confirms the use of the outdoor dining area would comply with the City's noise standards. 3) "Code violations" from the current business 15-6 Appeal of the Approval of Village Inn Outdoor Dining Use Permit and Waiver of Council Policy L-21 January 24, 2017 Page 7 Staff response: The Police Department reviewed the application and provided statistical crime data related to calls for service in and around the project site. The Police Department's memos dated November 4, 2015 and April 26, 2016, are provided as Attachment K. Complaints regarding excessive noise have been made on several occasions. In response the Police Department has advised the restaurant operator, but some of the calls were "unfounded". No other violations were identified. The City's Code Enforcement officers also conduct random bar checks of the establishment and no violations warranting issuances of a citation have been identified to date. A memo from Code Enforcement is provided as Attachment K which details complaints received since December 1, 2013. The City continues to investigate complaints as they are received. Complaints filed in December 2016 related to noise, trash on the adjacent sidewalks and use of the residential garage at 123 Marine Avenue for storage. These complaints are under investigation, and no notices of violation have been issued to date. Waiver of City Council Policy L-21, Sidewalk Cafe Standards and Procedures Please note that the Planning Commission is not authorized to approve a waiver of any City Council Policy; therefore, the appeal does not apply to this applicant request. City Council Policy L-21 establishes general provisions for outdoor dining areas (Attachment L). The applicant seeks to waive the following portions of the policy as summarized in Table 1. Table 1 Citv Council Policv L-21 General Provisions Improvement Policy L-21 Proposed Project Sidewalk Width 8 feet in area with heavy 6.25 feet pedestrian traffic Barriers Sectional in nature and easily Decorative wrought iron removed barrier- affixed to concrete Sidewalk alterations No alterations, and dining Dining area to 8'/2 to 10 area to be same level as inches above the sidewalk so sidewalk as to evenly join the restaurant's interior floor Distance from building corner 10 feet 8 feet, 5'/2 inches Staff recommends waiving portions of Policy L-21, as requested by the applicant. After review and consideration of this particular segment of sidewalk, the proposed improvements provide adequate pedestrian clearance and do not diminish future rights 15-7 Appeal of the Approval of Village Inn Outdoor Dining Use Permit and Waiver of Council Policy L-21 January 24, 2017 Page 8 of the public. New bicycle corrals will be funded and installed as part of this project. Staff's recommendation includes a condition that applicant obtains an Annual Outdoor Dining Encroachment Permit, complies with all other design standards, and pays all applicable fees. Alternatives The City Council may choose to modify or deny the Conditional Use Permit and/or the requested Policy L-21 waiver. If denied, a resolution of denial is provided as Attachment M for the Council's consideration. ENVIRONMENTAL REVIEW: Staff recommends this City Council find this project exempt under from the State California Environmental Quality Act (CEQA) pursuant to Section 15303 — Class 3 (Construction or Conversion of Small Structures) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, in that the improvements associated with the outdoor dining area are considered accessory to the main structure. L1 roll 11 [$11 L1 [em Notice of this application was published in the Daily Pilot, mailed to all owners of property within 300 feet of the boundaries of the site (excluding intervening rights-of- way and waterways) including the applicant and posted on the subject property at least 10 days before the scheduled meeting, consistent with the provisions of the NBMC. Additionally, the item appeared on the agenda for this meeting, which was posted at City Hall and on the City website. ATTACHMENTS: Attachment A — Draft Resolution Attachment B — Use Permit UP2009-02 and Meeting Minutes Attachment C — 2012 Live Entertainment Permit Attachment D — Planning Commission Resolution of Approval Attachment E — Project Plans Attachment F — Appeal Attachment G — Planning Commission Staff Report, 10/20/16 (without attachments) Attachment H — Planning Commission Staff Report, 11/3/16 (without attachments) Attachment I — Planning Commission Meeting Minutes November 3, 2016 Attachment J — Noise Assessments Attachment K — Police Department and Code Enforcement Memos Attachment L — City Council Policy L-21, Sidewalk Cafe Standards and Procedures Attachment M — Draft Resolution of Denial Attachment N — Correspondences 15-8 Attachment A Draft Resolution 15-9 RESOLUTION NO. 2017- A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH, CALIFORNIA, UPHOLDING THE PLANNING COMMISSION'S APPROVAL OF USE PERMIT NO. UP2016-012 TO ESTABLISH AN OUTDOOR DINING AREA ASSOCIATED WITH AN EXISTING RESTAURANT AT 127 MARINE AVENUE (PA2015-016) WHEREAS, 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 outdoor dining area also requires relocation of existing bike racks; WHEREAS, Mr. Miller 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; WHEREAS, 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). The Coastal Land Use Plan category is Mixed Use Water Related (MU -W); WHEREAS, 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 remain in effect; WHEREAS, 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; WHEREAS, 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 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; WHEREAS, on November 3, 2016, the Planning Commission conducted a public hearing 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. At 15-10 Resolution No. 2017- Paae 2 of 9 conclusion of the hearing, the Planning Commission approved the project and adopted Resolution 2035 containing the written findings supporting the action; WHEREAS, following the Planning Commission's approval, a neighbor living adjacent to the subject property appealed the Planning Commission's approval to the City Council; and WHEREAS, on January 24, 2017, the City Council held a noticed public hearing to consider the appeal 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. Evidence, both written and oral, was presented to, and considered by, the City Council at the public hearing. NOW, THEREFORE, the City Council of the City of Newport Beach, California, hereby resolves as follows: Section 1: The City Council does hereby uphold the Planning Commission's approval of Use Permit No. UP2016-012 to establish an outdoor dining area associated with an existing restaurant at 127 Marine Avenue (PA2015-016) with the conditions of approval attached as Exhibit 'A," and incorporated herein by reference. The City Council's decision is made in accordance with NBMC Section 20.52.020(F), and is supported by the following findings and facts: 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. 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). 15-11 Resolution No. 2017 - Page 3 of 9 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: 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: 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 15-12 Resolution No. 2017- Paae 4 of 9 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 2: The City Council hereby waives portions of City Council Policy L-21, "Sidewalk Cafe Standards and Procedures", to allow for a six-foot wide minimum pedestrian clear width sidewalk in a potentially heavy pedestrian traffic area; to allow a barrier that would be permanently bolted in place; to allow the outdoor dining area to be maintained above the level of the existing sidewalk; and to allow the outdoor dining area to be located less than ten feet from the corner of the building. The City Council also require the applicant to apply for an Annual Outdoor Dining Encroachment Permit and pay all applicable fees and directs staff to relocate the existing bike racks within the public right-of-way adjacent to the Village Inn to new bike corrals in the 200 and 300 blocks of Marine Avenue. Section 3: 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 4: The recitals provided in this resolution are true and correct and are incorporated into the operative part of this resolution. Section 5: If any section, subsection, sentence, clause or phrase of this resolution is, for any reason, held to be invalid or unconstitutional, such decision shall not affect the validity or constitutionality of the remaining portions of this resolution. The City Council hereby declares that it would have passed this resolution, and each section, subsection, sentence, clause or phrase hereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases be declared invalid or unconstitutional. Section 6: This resolution shall take effect immediately upon its adoption by the City Council, and the City Clerk shall certify the vote adopting the resolution. 15-13 ADOPTED this 24" day of January, 2017. Kevin Muldoon Mayor ATTEST: Leilani I. Brown City Clerk APPROVED AS TO FORM: CITY A Y'S OFFICE Aaron C. Harp City Attorney Resolution No. 2017 - Page 5 of 9 15-14 EXHIBIT "A" CONDITIONS OF APPROVAL PLANNING Resolution No. 2017- Paae 6 of 9 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. 15-15 Resolution No. 2017 - 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. 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. 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). 15-16 Resolution No. 2017 - Page 8 of 9 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. Building 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. 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 15-17 Resolution No. 2017 - Page 9 of 9 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 effective date of the City Council authorizing 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 180 days of the effective date of the City Council action on the waiver of Policy L-21 and authorization to relocate the bike racks. 34. Within three months of certificate of occupancy and full operation of the outdoor dining area, the City shall undertake measurements of the noise generated by the outdoor dining area, at the cost to the applicant. The analysis shall be considered by the Planning Commission at a noticed public hearing to ensure compliance with the conditions of approval and the City's Noise Ordinance. Modifications to conditions of approval may be required of the project is not in compliance. 35. Prior to certificate of occupancy, the applicant shall install landscaping on-site to the greatest extent possible, as determined acceptable to the Community Development Director. 15-18 Attachment B Use Permit UP2009-02 and Meeting Minutes 15-19 RESOLUTION NO. 1782 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH APPROVING USE PERMIT NO, UP2009-002 TO ALLOW A MAJOR CHANGE IN OPERATIONAL CHARACTERISTICS OF AN EXISTING RESTAURANT AND THE OPERATION OF AN ALCOHOLIC BEVERAGE OUTLET LOCATED AT 127 MARINE AVE (PA 2009-014) WHEREAS, an application was filed by Balboa Island Village Inn, Inc., with respect to property located at 127 Marine Avenue, and legally described as Balboa Island Section 4, Lot 15, requesting approval of a use permit; and WHEREAS, the subject property is located within the Retail and Service Commercial District with a Residential Overlay and is subject to the requirements of Chapters 20,15, 20.52, and 20.82 of the Zoning Code which require a use permit for a major change in the operational characteristics of an existing eating and drinking establishment; and WHEREAS, a substantial change in the character of operation of an alcoholic beverage outlet requires a use permit under the provisions of Chapter 20.89 of the Municipal Code (Alcoholic Beverage Outlets); and WHEREAS, a use permit for an increase in the number of seats in the bar, which constitutes a major change in the operational characteristics of an existing eating and drinking establishment, has been prepared and approved in accordance with Section 20.91.035 of the Newport Beach Municipal Code based on the following findings and facts in support of such findings: Finding: That the proposed location of the use is in accord with the objectives of this code and the purposes of the district in which the site is located. Facts in Support of Finding: • The project is located in the Retail and Service Commercial (RSC) District with a Residential Overlay. The residential overlay allows all of the permitted uses of the base district with residential allowed above the first floor. The purpose of the RSC District is to provide areas which are predominantly retail in character but which allow some service office uses. The existing restaurant with alcohol sales is a retail sales use which serves residents and visitors and, therefore, is consistent with the purposes of the RSC District. • Subject to the approval of a use permit by the Planning Commission, a restaurant use with alcoholic beverage service is permitted within this district. Use permits enable the City to control certain uses which could have detrimental effects if not compatible with uses on adjoining properties and in the surrounding area. The Village Inn restaurant use with alcohol sales is compatible with the uses in this district, including the other restaurants, ice cream and frozen yogurt shops, clothing boutiques, hair salons, and coffee shops along Marine Avenue. The proposed application does not present any conflicts with the purpose and intent of this district. 15-20 Planning Con.,,iission Resolution No. Paae 2 of 7 Finding: That the proposed location of the Use Permit and the proposed conditions under which it would be operated or maintained will be consistent with the General Plan and the purpose of the district in which the site is located; will not be detrimental to the public health, safety, peace, morals, comfort, or welfare of persons residing or working in or adjacent to the neighborhood of such use; and will not be detrimental to the properties or improvements in the vicinity or to the general welfare of the city. Facts in Support of Finding: • The project site is designated as Mixed Use Water Related (MU -W2) by the Land Use Element of the General Plan. 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. • The proposed hours of operation, Sunday through Thursday from 9:00 a.m. to 12:00 a.m. and Friday and Saturday from 9:00 a.m. to 2:00 a.m, will not significantly change characteristics of the existing commercial area, and will a provide a benefit to customers by serving breakfast. • The Newport Beach Police Department has reviewed the project, has no objections to the basic operations as described by the applicant, and considers the Village Inn to be a community asset. • If the Use Permit is approved, the conditions imposed on the Village Inn will reduce any possible detriment to the community by ensuring continued consistency with the intent and purpose of Chapters 20.82 and 20.89. Finding: That the proposed use will comply with the provisions of this code, including any specific condition required for the proposed use in the district in which it would be located. Facts in Support of Finding: • Eating and drinking establishments are subject to the requirements of Chapter 20.82 of the Municipal Code. Pursuant to this Chapter, a use permit is required for a major change in operational characteristics, including the increase in the number of seats of a bar by more than 15 percent. The operator of the Balboa Island Village Inn, Inc. has applied for a building permit to remove dining room seating in order to expand the bar area. This proposed construction will reduce the net public area because a portion of the customer service area will be converted to an area used by employees. In addition, the number of seats at tables and booths will be reduced by 20 and the number of bar seats increased by 18. • Chapter 20.62 (Nonconforming Structures and Uses) of the Municipal Code allows for interior alterations to be made to structures that are nonconforming due to deficient parking. Approval of the Use Permit will not intensify the existing use because the net public area and number of seats will be reduced. Because the application only proposes 15-21 Planning Con u nission Resolution No. Page 3 of 7 interior alterations and does not intensify the use, the Use Permit may be approved without providing the parking that would otherwise be required. Further, the customers of the Village Inn often live on Balboa Island and walk to this destination. • The project has been conditioned to comply with the development and operational regulations pursuant to Section 20.89.050 of the Municipal Code as they relate to the operation of the proposed project. These conditions include restrictions on the hours of operation, and prohibition of "happy hour" reduced alcohol beverage prices that would promote sale of such beverages except when served in conjunction with food ordered for the full service menu. Employees serving alcoholic beverages will receive training in responsible methods and skills for serving and selling alcoholic beverages, the exterior of the Village Inn will be maintained free of litter and graffiti at all times, and the owner or operator will provide for daily removal of trash, litter, and debris from the premises and on all abutting sidewalks within 20 feet of the premises. WHEREAS, a public hearing was held on March 19, 2009, in the City Hall Council Chambers, 3300 Newport Boulevard, Newport Beach, California. A notice of time, place and purpose of the meeting was given in accordance with the Municipal Code. Evidence, both written and oral, was presented to, and considered by, the Planning Commission at this meeting; and WHEREAS, the project qualifies for an exemption from environmental review pursuant to Section 15301 (Class 1 Existing Facilities) of the Implementing Guidelines of the California Environmental Quality Act (CEQA), which exempts the operation of existing facilities involving negligible expansion of use; and NOW, THEREFORE, BE IT RESOLVED: Section 1. The Planning Commission of the City of Newport Beach hereby approves Use Permit No. UP2009-002, subject to the Conditions set forth in Exhibit "A". Section 2. This action shall become final and effective fourteen days after the adoption of this Resolution 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. 15-22 Planning Conunission Resolution No. Page 4 of 7 PASSED, APPROVED AND ADOPTED THIS 19th DAY OF MARCH 2009. AYES: Eaton Unsworth Hawkins Peotter Toerge and Hillgren NOES: McDaniel BY: ')D.'c&2t Barry Eat 6, Secretary 15-23 Planning Corrunission Resolution No. Page5of7 EXHIBIT "A" CONDITIONS OF APPROVAL. PROJECT SPECIFIC CONDITIONS ARE IN ITALICS 9 , The development shall be in substantial conformance with the approved site pian and floor pians, except as modified by applicable conditions of approval. 2. All proposed signs or displays shall be in conformance with Chapter 20.67 of the Newport Beach Municipal Code. 3. The project is subject to all applicable City ordinances, policies, and standards, unless specifically waived or modified by the conditions of approval. 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 approval was based on the particulars of the individual case and does not in and of itself or in combination with other approvals in the vicinity or Citywide constitute a precedent for future approvals or decisions. 6. This Use Permit may be modified or revoked by the City Council or 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. 7. 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. 8. All noise generated by the proposed use shall comply with the provisions of Chapter 90.26 and other applicable noise control requirements of the Newport Beach Municipal Code, 9. Prior to the issuance of a building permit, the applicant shall pay any unpaid administrative costs associated with the processing of this application to the Planning Department. 90. Should the business or 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. 99. Construction activities shall comply with Section 90.28.040 of the Newport Beach Municipal Code, which restricts hours of noise -generating construction activities that 15-24 Planning Corinnission Resolution No. Paae 6 of 7 produce noise to between the hours of 7:00 a.m. and 6:30 p.m., Monday through Friday and 8:00 a.m, and 6:00 p.m. on Saturday. Noise -generating construction activities are not allowed on Sundays or Holidays. 12. No outside paging system shall be utilized in conjunction with this establishment. 13. All trash shall be stored within the building or within dumpsters stored in the trash enclosure (three walls and a self -latching gate) or otherwise screened from view of neighboring properties, except when placed for pick-up by refuse collection agencies. The trash enclosure shall have a decorative solid roof for aesthetic and screening purposes. 14. The applicant shall ensure that the trash dumpsters and/or receptacles are maintained to control odors. This may include the provision of either fully self-contained dumpsters or periodic steam cleaning of the dumpsters, if deemed necessary by the Planning Department. Cleaning and maintenance of trash dumpsters shall be done in compliance with the provisions of Title 14, including all future amendments (including Water Quality related requirements). 15. Trash receptacles for patrons shall be conveniently located both inside and outside of the establishment, however, not located on or within any public property or right-of- way. 16. 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 20 feet of the premises. 17. Deliveries and refuse collection for the facility shall be prohibited between the hours of 10:00 p.m. and 8:00 a.m., daily, unless otherwise approved by the Planning Director, and may require an amendment to this Use Permit. 18. Storage outside of the building in the front or at the rear of the property shall be prohibited, with the exception of the required trash container enclosure. 19. A Special Event 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 Newport Beach Municipal Code to require such permits. 20. The applicant is required to obtain all applicable permits from the City Building and Fire Departments. 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. 15-25 Planning Commission Resolution No. Paae 7 of 7 21. Approval does not permit the premises to operate as a bar, tavern, cocktail lounge, or nightclub as defined by the Municipal Code, unless the Planning Commission first approves a use permit. 22. No alcoholic beverages shall be consumed on any property adjacent to licensed premises under the control of the licensee. 23. No "happy hour" type of reduced price alcoholic beverage promotion shall be allowed except when served in conjunction with food ordered for the full service menu. 24. Petitioner shall not share any profits or pay any percentage or commission to a promoter or any other person based upon monies collected as a door charge, cover charge, or any other form of admission charge, including minimum drink orders or the sale of drinks. 25. All owners, managers, and employees selling alcoholic beverages shall undergo and successfully complete a certified training program in responsible methods and skills for serving and selling alcoholic beverages. The certified program must meet the standards of the California Coordinating Council on Responsible Beverage Service or other certifying/licensing body, which the State may designate. The establishment shall comply with the requirements of this section within 180 days of the effective date of this use permit. Records of each owner's, manager's, and employee's successful completion of the required certified training program shall be maintained on the premises and shall be presented upon request by a representative of the City of Newport Beach 26. There shall be no on-site radio, television, video, film, or other electronic media broadcast, including recordings to be broadcasted at a later time, which include the service of alcoholic beverages, without first obtaining an approved Special Event Permit issued by the City of Newport Beach. 27. There shall be no dancing allowed on the premises. 28. Upon request of the Police Department, or with a change or transfer of the Alcoholic Beverage Control license, a security plan shall be submitted to the Police Department for review and approval. 29. The hours of operation shall be limited to between 7:00 a.m. and midnight, daily. 30. The Use Permit shall be reviewed by the Planning Commission one year after the conclusion of the appeal period. The applicant shall make a good faith effort towards a goal of increasing the percentage of food sales to 40 percent or more by the one-year review period. 31. After 8:00 p.m., the second set of doors to the west of the main entrance doors on Park Avenue shall be used for emergency use only. 15-26 CITY OF NEWPORT BEACH Planning Commission Minutes March 19, 2009 Regular Meeting - 6:30 p.m. ROLL CALL Commissioners Eaton, Unsworth, Hawkins, Peotter, McDaniel, Toerge, and Hillgrep— all present. STAFF PRESENT: David Lepo, Plahrfing Director Patrick Afford, PlaAhing Manager Aaron Harp, Assistant pity Attorney Fern Nueno, Assistant planner Jaime Murillo, Associate Planner Melinda Whelan, Assistant Planner Ginger Varin, Administrative Assistant PUBLIC COMMENTS: `t PUBLIC COMMENTS None y F. POSTING OF THE AGENDA: "4; POSTING OF THE AGENDA The Planning Commission Agenda was posted on March 13 2009. HEARING ITEMS SUBJECT: MINUTES of the regular meeting of February 19, 2009. A,. u ITEM NO. 1 Motion was made by Commissioner Hawkins and seconded by ,'�, Approved Commissioner Hillgren to approve the minutes as written. Ayes: Eaton, Unsworth, Hawkins, Peotter, Toerge and Hiflgren Noes: None Abstain: McDaniel. a� SUBJECT: Balboa Island Village Inn (PA2009-014) ITEM NO. 2 127 Marine Avenue PA2009-014 A use permit application for an existing full service restaurant to allow the Approved conversion of dining room seating into bar seating, and for the operation of an existing alcoholic beverage outlet. 15-27 NEWPORT'S -ACH PLANNING COMMISSION MwiUTES 03/19/2009 Fern Nueno gave an overview of the staff report: • The Village Inn began construction without a building permit and performed construction on Sundays, which violates City regulations; • There was a complaint with the Building Department and an inspector was sent out to the site who notified the owner that a building permit was required; • In response to a letter sent to the Department regarding dancing on site, the police were notified and stated that no dancing had been observed. • During the past few years, there has been a decline in calls for service at this site from the Police Department. • There is no requirement for a certain percentage of food sales under their ABC license. Scott Russo, attorney representing the applicant, noted: • A licensed contractor is doing the improvements. • The red tag occurred September 2008. • No intent to seek a dancing permit. • No requirement for a 50 percent food sales under their ABC license, • The application is necessary for increased business. • The area to be updated needs to be refurbished to make it conducive and pleasant for customers. Commissioner McDaniel noted his concern with the removal of the wall that acts as sound attenuation and the increased noise. Aric Toll, one of the owners of Village Inn, noted a six-foot hole will be put into a wall that spans the width of the building so that light will come in from the other side of the room. Discussion continued regarding noise, placement of the band and the configuration of the wall. Commissioner Toerge asked the applicant if he was in compliance with the conditions of his alcohol license. He was answered, yes. Commissioner Eaton suggested an additional condition for a one-year review of the application. Mr. Toll answered he would agree. Public comment was opened. Speaking in opposition: Mr. Roger Van Pelt --- Marine Avenue resident noted issues of parking, traffic, attraction of 'bar' people, has seen dancing on the premise, other restaurants in the area are making it with their quality of food, noise comes out from the establishment when the doors are opened. On the weekends, when patrons get out on the street there is smoking, fights, loud conversations, public urination and vomiting. Don Deputy — Marine Avenue resident noted his concern of noise, especially during the summer; parking and traffic problems. Page 2 of 15 15-28 NEWPORT ,--ACH PLANNING COMMISSION MnwUTES 03/99/2009 Shirley Van Pelt — Marine Avenue resident noted the configuration of the site will create a dance hall situation that will draw the drinking crowd. At Commission inquiry, she noted the sound does carry and the doors will now be opened and that will further impact both the sidewalk traffic and noise. With the quality and type of food she does not feel this will work for the betterment of the surrounding residences. Mike Sullivan — Marine Avenue resident noted his concern that this establishment is becoming more of a bar than a restaurant. In doubling the bar space what would that lead to? In a restaurant you do not hear the screaming which I hear at night with my windows closed. He has not called the police or complained about it. He has to pick up the trash in the mornings. It should be a restaurant, and if you approve this, there should be a commitment to improve the food and less noise. There is dancing there on the weekends. He noted his support of the restaurateur. Speaking in support: Ken Cowan -- Crystal Avenue resident noted he enjoys the food at the bar, has not seen any fights or public nuisances as previously described. At Commission inquiry, he stated the dining area is dark and nobody goes in there. Michael Kranz — Diamond Avenue resident noted he frequents the establishment and that the new seating will be a benefit. Lori Kranz -- Diamond Avenue resident noted her support of the application. Food quality is not the issue. This establishment is an asset to the community and people are friendly. Spencer Stepuvicke — as a past employee of the Village Inn, noted it is an asset to the community, the owner is very friendly and has provided games for the adults; it is a good place and hopes that it will become viable with the addition of the seats and new lighting features that will open the place up. Mr. Toll noted that last year he sold close to $400,000 in food with a full service menu. The operation will not change with the improvements. Public comment was closed. Commissioner Eaton noted: • Approval of this application would give the City the ability to impose conditions on the use that are not present now such as LEAD training; • A one-year review with a report on the amount of food sales would give the opportunity if additional conditions need to be imposed; • This is licensed as a restaurant. Commissioner Hillgren asked if anything else will be changed in the space other than opening the wall. Page 3 of 15 15-29 NEWPORT`.-ACH PLANNING COMMISSION M,,4UTES Mr. Toll answered a counter top, opening and a couple of televisions along with paint and finishing touches are all planned to match the other side. He stated that he has no objections to the conditions contained in the staff report and would agree to a weekend restriction of opening at 9:00 a.m. At Commission inquiry, Mr. Lepo noted that this is an old liquor license and the regulations have since changed. When that license was issued there was no minimum food sales requirement. This was not licensed as a bar; they were expected to serve food. Commissioner Unsworth asked if there had been sound testings. Commissioner McDaniel noted there was quite a bit of testing done as this place had been an issue on the Island for a very long time. Recently, improvements had been done on the premises such as new glass and a reconfiguration. Noise does spill out with doors opening and closing. That is not the problem; it is once the patrons leave the premises and go into the community it wakes the whole area up, which is not the responsibility of the owner. Chairman Peotter asked if there were restrictions on live entertainment. Ms. Nueno answered that live entertainment is allowed with no more than five musicians or vocalists using amplified music or microphones limited with certain decibel limits. Chairman Peotter asked about the hours between midnight and 2 a.m. Mr. Toll noted he would agree to a condition restricting those hours during the weekend if he was granted the conversion of bar seating in the dining room. Commissioner Toerge noted if this project is not allowed, then it is status quo. It was suggested that LEAD training and other modifications to the business to address the concerns of the Commission; how could this operation be improved? Mr. Toll noted he is proud of the current operation and works very hard. The Police Department knows we control our patrons and the control of liquor service and the establishment is in good standing with the ABC. Commissioner Toerge asked if the food percentage will change if this application was granted. Would you agree to a 50 percent food sales? Mr. Toll answered now people do not use that area. He would not agree to the food percentage; however, it is a goal but he has not achieved it yet. At Commission inquiry, he noted the doors in the remodeled area should be there for use. After hours is different as they will be closed for noise containment. He agreed to a condition that after S p.m. those doors will be used for emeraencv use onlv. 03/19/2009 Page 4 of 15 15-30 NEWPORT t-_ACH PLANNING COMMISSION MiojUTES Commissioner Hawkins asked if the applicant would agree to a 40 percent food to alcohol ratio with an annual report back to the Planning Commission. Mr. Toll agreed. Scott Russo noted there will be an annual review. If necessary, Mr. Tali will agree to cut back those hours; however, ten percent ($100,000) of his business comes during those hours. The reason for this request is that the Village Inn is not a viable business and has not been one since the Tolls took over. This change is necessary as the Village Inn has to turn a profit and must become a viable enterprise. Detective Dave Stark noted the Police Department would support the time change closing at midnight as it would enhance public safety and addresses concerns previously stated. The problems occurring at 2 a.m. would go away and alleviate the neighbors' concerns if this place closes at midnight. Commissioner McDaniel noted he does not support this application. Points have been made if this was approved that conditions could be applied. However, the Village Inn will no longer be a restaurant, it will be a bar. It clearly is, indicated that with the televisions installed it will change the nature of that establishment. Whether it is profitable or not, is not an issue for Commission consideration. I believe changing the closing hours will be a help. Commissioner Unsworth asked what recourse the Commission would have in a year's time with a review. Assistant City Attorney Harp answered different conditions could be added in order to address those violations. Motion was made by Commissioner Eaton and seconded by Commissioner Hawkins to adopt resolution approving UP2009-002 with the following modifications: • Restriction of hours of operation not past midnight Friday and Saturday nights. One-year review by the Planning Commission of the operational characteristics with a request for information on the amount of alcohol sales. Commissioner Hawkins noted this is a difficult issue due to the small location with nearby adjacent neighbors. Any restaurant operation serving alcohol will have a noise impact and that is problematic. As a member of the City's Economic Development Committee, he noted their concerns with the current economic situation. The new hour restriction will result in a benefit and the annual review will allow further conditions if necessary. He noted his support of the motion. 03/19/2009 Page 5 of 15 15-31 NEWPORT, _ACH PLANNING COMMISSION MngUTES 03/19/2009 Commissioner Hillgren noted his concern of this becoming a bar. He noted his support of the Village Inn as a restaurant that serves alcohol. The reduction of hours is an important step in confirming the genuine intent to operate a restaurant that serves alcohol. He proposed an amendment to the motion to have a goal of 40 percent food sales for the annual review. The maker and the second of the motion agreed. Commissioner Hawkins asked staff's opinion regarding food sales percentages. Mr. Lepo answered to the extent that provides the Commission with indication of this retaining a restaurant rather than a bar, that would be up to you to decide the percentage they show. Short of an outside review of the data, you will have whatever data that is submitted by the applicant. Commissioner Toerge noted we want to see improvement and these movements are helping this project become more compatible and helping the applicant become more successful. If there have been no complaints within a year and the applicant wants to stay open later, then that may be a possibility. Mr. Harp noted a violation of a goal would not be an enforceable condition. When they would come back in a year, you would look at if they had breached some of the conditions that were imposed upon them. Discussion continued on the findings and the need for evidence for enforcement. Chairman Peotter proposed to opening earlier at 7.00 a.m. Both the maker and second of the motion agreed. Chairman Peotter then proposed that the doors on the west side on Park Avenue to be used as emergency exit only after 8:00 p.m. Both the maker and second of the motion agreed. Ayes: Eaton, Unsworth, Hawkins, Peotter, Toerge and Hillgren Noes: McDaniel Excused.• None '''SUBJECT: Balboa Inn Hotel/Sienna Restaurant (PA2008-197) ITEM NO.3 105 Main Street PA2008-197 The applicant is requesting _,an amendment to Use Permit No. 3158 to: 1) reduce Approved and reconfigure the floor area allocai;ed for restaurant dining; 2) expand the venue or private events with live entertainmenf"tocinrplude the use of the covered courtyard; 3) extend the hours for private events with r've,eptertainment; 4) increase the number of private events with live entertainment permitfed•per month and remove a restriction that prohibits such events from occurring during the""months of July and August; and 5) allow live entertainment for the patrons of the restaurant within the covered courtyard Jaime Murillo, Associate Planner, gave an overview of the staff report. -------------- Page G of 15 15-32 Attachment C 2012 Live Entertainment Permit 15-33 -1 r0 RN _\Y CHARLES KINST LER VILLAGE INN t� ----rte-r~ztA�rlvl�� NEWPORT BEACH, CA 92662 CITY OF NEWPORT BEACH ADMIN'ISTRATIVE SERVICES Revenue Division July 3, 2012 PERMIT TO CONDUCT LIVE ENTERTAINMENT The City of Newport Beach does hereby authorize live entertainment activities to be conducted at the above indicated facility. This permit is issued to the entity fisted above, and is not transferable to any other entity. The approval of this permit is contingent on the compliance with the regulations for operation as defined by Newport Beach Municipal Code Section 5.28, the Use Permit associated with this property and the following conditions for operation 1, The permittee must meet the condilbns for issuance of the permit, 2. The establishment shall be operated in a legal and orderly manner. 3. Permiltee mus(comply with all conditions of the Use Permit, 4. Live entertainment shall comply with the requirements of Municipal Code Chapter 5,28. Compliance with Section 5.28.040(6)(3) is reasonably met by not exceeding the maximum levels set forth in condition 5, 5. Live entertainment shall consist of no more than five musicians and/or vocalists using amplified instruments and microphones. 6. The live entertainment shall be confined to the interior of the building with performances located on the stage as shown on the plans submitted with the application. 7 Music or noise from the establishment for which the permit was issued shall not interfere with the peace and quiet of the neighborhood. 8. Noise levels from live entertainment shall be controlled so as not to exceed 60 dB(A) on the public sidewalk adjacent to the exterior doors and 50 dB(A) at the centerline of the public alley between the Village 1rm and 1305 Park Avenue while the doors are closed. Noise spikes up to 80 db(A) on the public sidewalk adjacent to the exterior doors and up to 70 db(A) at the centerline of the public alley between the Village Inn and 1305 Park Avenue are permitted during patron ingress and egress. 9. All exterior doors and windows shall remain closed during live entertainment activities except to allow the ingress and egress of patrons. 10. After 8:00 p.m., the second set of doors to the west of the main entrance doors on Park Avenue shall be used for emergency use only. 11. There shall be no dancing allowed on the premises. 12. Every place of entertainment shall have a manager on the premises at all times when entertainment is performed. 13. The permiltee, or any person associated with him as principal or partner, or in a position or capacity involving total or partial control over the establishment for which this permit is issued, shall not be convicted of a criminal offense involving moral turpitude. Approved by: - Date: cc: Code 'Enforcement Revenue Mal— Police anag r—Police Department Planning Department ;3300 Neivlaoi-( Boulevard - Post Office Box 1768 • NexNg)orl Be�icli, Calif-orriia 92658-8915 'telephone: (949) 644-3141 • Fax: (949) 644-3073 - %vww.newporlbeachca.f;ov. 15-34 Attachment D Planning Commission Resolution of Approval 15-35 RESOLUTION NO. 2035 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 of the public hearing was given in accordance with the Newport Beach Municipal Code 15-36 Planning Commission Resolution No. 2035 Paae 2 of 8 (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 Genera! 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. 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). 15-37 Planning Commission Resolution No. 2035 Page 3 of 8 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 public sidewalk would be 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 Findinq: 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 15-38 Planning Commission Resolution No. 2035 Paqe 4 of 8 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 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 3rd DAY OFNOVEMBER, 2016. AYES: Hillgren, Kramer, Lawier, Weigand and Zak NOES: None ABSTAIN: None ABSENT: Dunlap and Koetting Aw Pete Zak, Se 15-39 Planning Commission Resolution No. 2035 Page 5 of 8 EXHIBIT "A" CONDITIONS OF APPROVAL PLANNING 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. 15-40 Planning Commission Resolution No. 2035 Page 6 of 8 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 limited to 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. 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). 15-41 Planning Commission Resolution No. 2035 Page 7 of 8 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. Building 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. 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, andlor restrooms. Accessible upgrades shall be limited to twenty percent (20%) of the value of the work for outdoor dining. 15-42 Planning Commission Resolution No. 2035 Paae 8 of 8 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 effective date of the City Council authorizing 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 180 days of the effective date of the City Council action on the waiver of Policy L-21 and authorization to relocate the bike racks. 34. Within three months of certificate of occupancy and full operation of the outdoor dining area, the City shall undertake measurements of the noise generated by the outdoor dining area, at the cost to the applicant. The analysis shall be considered by the Planning Commission at a noticed public hearing to ensure compliance with the conditions of approval and the City's Noise Ordinance. Modifications to conditions of approval may be required of the project is not in compliance. 35. Prior to certificate of occupancy, the applicant shall install landscaping on-site to the greatest extent possible, as determined acceptable to the Community Development Director. 15-43 Attachment E Project Plans 15-44 _- -_ff77_- OFF i E7CIT MEN EH L r--F-i -Fl--I L -F-1 TJI L -F -1 -- Fl- -1 F -F --1--7--T L_LJ L_L--JI JI L_L__J_J L—L__L_J I L_J I I L_JTL_J� ❑�❑ E%IT \ (F)FIREPLALE S' -ID" L_J L_J /^v (E)VILLA6E INN >L_ L -J L-JL_JL-JL-J< RESTAURANT ENTERTAINMENT \ — _—_--� AREA - FE :11 4a" n< , > L - J1 L J L -J IF -1 \� n< e > nC\ /i> ^ v </ r� v /, / f\ v ,A/v / v /Vv / r r L -J J \/\v/ / j>v ^<'\ t> v v v v q 1 4 r - E BAR < /\ J i\ L_JI 25_SEA S. _ IF--I LJ j F= -1 < > \/ i '\ v < ,./> F— _,fir -, r <L -J, 9 nv�/ I II < / /\ 1 L__JI v <� /> v`// ^</' >� (E)EAST VININ6 < ROOM aN J �I ' >� l 0 2 L_J J SEATS v> <,I n> 01/// n� r L_J (E)STAGE TO BE 1 40VW L - :,J I -LL--- n n > E STOR. (E)D15HAASHING �- C\` w / (E)OPPIGE -- FE �11J n E Y, N L J E STOR. J- J <\ ><\ \ > / I L (E)KITGHEN < \�</ > � � \ / \ / L J (E)17ISHAA5HIN6 MEN v IIS (E)COOLER 4 _� _ m (E)STORAGE I (E)HALLAAY (E)GARAGE A/ 2NO STORY APARTMENT ABOVE Ir I < L J n n n n a o v EXITDOOR (E)GOOIGLIINE (EMWOMENGAFF ETL VW50, M. —xIT E%IT v (E)FoovPREP. n L - - - - - - - - - - iiiiiiiiiiI, ----- - (E)FREEZER UP Emm (E)COOLER 14'-I lye" AYA.III , expressly reserves As con— Iarrosa gM and orserpmpet, rights In Aroseplans, Mereplens em notto rtempretlucad charged orugretlIn arrylocn or mannery afsoever, noramlM1eyb on assigned anylM1iN party, wMoul first ontonmgtlre expmss wM@npermissim antlwnsenl of JAYA. TRIIA%. 0 m 5'-2" Lf 29'-0.yz' (E.1515N 3061 SP (E)KITGHEN -J (E)OFFIGE IIS SF I I < TOTAL I_J NiPATIO 200 SF J < v� <1 /\ --I 1249 SF n n C FI JI SEATING AE57 DINING ROOM < > EAST DINING ROOM ?4 SEATS BAR FIREPLACE � ° '��'�, �;�,EiNTERTAINMEN v• (WYeST VININ6 � U ROO AREA 42 SEA- L I LI j _J v v v --Tl--1 I 7-71 I I I 1 1 I r -r I I r- I I I I LJ— -1 I I I I I MEN EH L r--F-i -Fl--I L -F-1 TJI L -F -1 -- Fl- -1 F -F --1--7--T L_LJ L_L--JI JI L_L__J_J L—L__L_J I L_J I I L_JTL_J� ❑�❑ E%IT \ (F)FIREPLALE S' -ID" L_J L_J /^v (E)VILLA6E INN >L_ L -J L-JL_JL-JL-J< RESTAURANT ENTERTAINMENT \ — _—_--� AREA - FE :11 4a" n< , > L - J1 L J L -J IF -1 \� n< e > nC\ /i> ^ v </ r� v /, / f\ v ,A/v / v /Vv / r r L -J J \/\v/ / j>v ^<'\ t> v v v v q 1 4 r - E BAR < /\ J i\ L_JI 25_SEA S. _ IF--I LJ j F= -1 < > \/ i '\ v < ,./> F— _,fir -, r <L -J, 9 nv�/ I II < / /\ 1 L__JI v <� /> v`// ^</' >� (E)EAST VININ6 < ROOM aN J �I ' >� l 0 2 L_J J SEATS v> <,I n> 01/// n� r L_J (E)STAGE TO BE 1 40VW L - :,J I -LL--- n n > E STOR. (E)D15HAASHING �- C\` w / (E)OPPIGE -- FE �11J n E Y, N L J E STOR. J- J <\ ><\ \ > / I L (E)KITGHEN < \�</ > � � \ / \ / L J (E)17ISHAA5HIN6 MEN v IIS (E)COOLER 4 _� _ m (E)STORAGE I (E)HALLAAY (E)GARAGE A/ 2NO STORY APARTMENT ABOVE Ir I < L J n n n n a o v EXITDOOR (E)GOOIGLIINE (EMWOMENGAFF ETL VW50, M. —xIT E%IT v (E)FoovPREP. n L - - - - - - - - - - iiiiiiiiiiI, ----- - (E)FREEZER UP Emm (E)COOLER 14'-I lye" AYA.III , expressly reserves As con— Iarrosa gM and orserpmpet, rights In Aroseplans, Mereplens em notto rtempretlucad charged orugretlIn arrylocn or mannery afsoever, noramlM1eyb on assigned anylM1iN party, wMoul first ontonmgtlre expmss wM@npermissim antlwnsenl of JAYA. TRIIA%. 0 m 5'-2" Lf 29'-0.yz' (E.1515N 3061 SP (E)KITGHEN 466 5F (E)OFFIGE IIS SF (E)STORAGE -707 SF TOTAL 4552 Br- FNEW NiPATIO 200 SF RESIDENTIAL (EJAPT ABOVE REST. 1244 SF TOTAL 1249 SF LOT AREA C 127 MARINE AVE. 4415 SF SEATING AE57 DINING ROOM 42 SEATS EAST DINING ROOM ?4 SEATS BAR FIREPLACE � ° '��'�, �;�,EiNTERTAINMEN v• V W > co S cn c cUN0 W 70 L0 0 ZD roNy �QF4o)a LTJ JN CSU ONm � U SPKk. AREA q it EVENING ENTERTAINMENT ARRANGEMENT Al EXISTING BIKE RACKS LEGEND: (ALSO, SEE SHEET A-1) �i (E) PROPERTY LINES M) SIDEWALK �3 ROOF OVERHANG ABOVE ® TABLES AND CHAIRS, TYP. ALL OUTDOOR PATIO AREA E5 PATH OF TRAVEL, 1:12 MAX. SLOPE RE57ARANT (E)RESTAURANT 3061 SP (E)KITGHEN 466 5F (E)OFFIGE IIS SF (E)STORAGE -707 SF TOTAL 4552 Br- FNEW NiPATIO 200 SF RESIDENTIAL (EJAPT ABOVE REST. 1244 SF TOTAL 1249 SF LOT AREA C 127 MARINE AVE. 4415 SF SEATING AE57 DINING ROOM 42 SEATS EAST DINING ROOM ?4 SEATS BAR 25 SEATS NEW PATIO 16 SEATS TOTAL I5"I SEATS NEW REMODEL O� F I RST FLOOR FLAN SCALE: I/4"=1' -O" � 11, Z Z REVISION DATE co Lu Z go CID C4 M a I QQ F- LLI Lu C J J>2� cc Q V W > co S cn c cUN0 W 70 L0 0 ZD roNy �QF4o)a LTJ JN CSU ONm � U Z Z co Lu Z go CID C4 M a QQ F- LLI Lu C J J>2� J F O.LAGE INN -2 15-45 P (E) 5t�n 6 ° (E)51 GN �JRb" FLUSH WITH (E) STREET (E)CONC. SIDEWALK(f)SLOPE DN. 1:12 MAX. o (E) ADA RAMP (F) ADA - - - - r n (E)5TREETLIGHT HIGH VOLTAGE VAULT a lY (E)51GN . I---- - ----I . N I I I I \ 0- r AJ IY ID Q ju I_--_1 I--_-� N I I I I \ 1, 5 5" II / Ir I I I - I t_Ittt _ tt 4'-9, I� II I I o z O I w I NEW REMODEL CORNER PLAN 5-,4L7- /Z"= r_O REMOVE (E) PLANTER AND REPAIR SIDEWALK, PLANTER AND ACCESSIBLE RAMP AS REQUIRED BY THE CITY OF NEWPORT BEACH (E) ROOF OVERHANG NEW 36" HIGH RAILING (SEE EXTERIOR RAILING ELEVATION BELOW) BICYCLE R,;i 5PECIS OR 51M1LAR Simple Security The Sinop Rack Is a proven de9(Jn Thai prcvtdes high s Ai and easy bi Prolong . The HWO Rack o52s thick pipe CcMnA TlDn and The Ibl i ai of Fin: bend makes Me HOOP an aTVadw aini Nnttioi bike Tack Thls bike tack can alsu be TAT on Tai for aleblh(y and Is popular In bike renals d GZ016 Dam (E)RE5TAURAN7 FIN15H FLOOR 36" HIGH DECORATIVE METAL RAILING NEW REMODEL FA710 (APPROX. 80% OPEN, 10%REQUIRED) e RAILII EAST ELEYA71ON SCALE: I/2"=1' -O" JAYA. Ti, expressly reserves As cannon lawcopyAgM and oMu property rii In tow Trans, Thaeeplans to ri I narrowed. chri or ugiofIn anylorm or mannerwM1a6ors-, nor son toy b I assigned toanyiM1ird paJy, vorr Wsi wo innglM1e a a press vmi@nwrison- eno-rani of JAY A. TRL 0 VA Z W CS z Z N NO. REVISION DATE F- LL]Oj C�7 L o 2 Q N �� LU , qJ NQl�no OU�a (� �'O TO U �.� WONO N Q JNrornm \ Jr0 ,0 Q ONm � U 0 VA Z W CS z Z N Ai I Z N F- LL]Oj C�7 L o H W W CS z Z J Wag Q >�m m YCO Z 00 �aCO) LU UJ U�� W W Ua� M CO) 06 DATE: 8/29/16 DRAWN BY: TRUAX PROJECT NO. THE VILLAGE INN SHEET A-3 15-46 aro W Q 3: m F- YCO Z 00 �aCO) LU UJ U�� W W Ua� M CO) 06 DATE: 8/29/16 DRAWN BY: TRUAX PROJECT NO. THE VILLAGE INN SHEET A-3 15-46 Attachment F Appeal 15-47 p6 - 1O`.,6,. n NYU C, Appeal FORN�P , �F Appeal Application City Clerk's Office 100 Civic Center Drive / P.O. Box 1768 Newport Beach, CA 92658-8915 T (949) 644-3005 Appeal the Decision of: ❑ Hearing Officer - NBMC §20.64 ❑ Operator License - NBMC §5.25.060 Attention: City Manager) ❑ Planning Commission - NBMC §20.64 ❑ Zoning Administrator (Development Agreements) - NBMC 15.45.080 ❑ Other Clerk's Date & Time Stamp RE(-Y7!\/E, '!Eta _7914 NOV 17 Pr's 2: 26 r ^r r Applicable Appeal Fees PurI ia Master Fee Schedule a t4d�5- =' It Hearing Officer -$1,506.00 "`�` Operator License - $692.00 Planning Commission - $1,506.00 Zoning Administrator - $1,506.00 o iso Other - $ Appellant Information: Name(s): MIKE SO L L! V A N Address: /21 / AR/NE AVE t5 City/State/Zip: A15WPO RT- -1-�EA C N f CA �2 6 62 - Phone: 2Phone: 90 6 73- L/ Lf I/ Fax: Email: SU LLI VA+J P140 % o e ROADRUNNER COM Appealing Application Regarding: Name of Applicant(s): V/1 -LAT - NN Date of Decision: A/0V 3.9 20/6 Project No.: Pq 2O Is - 0/6 Activity No.: Site Address: / 2 7 IWA R I N e RVQ. Description of application: V/ L L A C,c INS! HAS APPO F -a FOR OUT DOOR DIA11 ON T/1C SIDE of 7-11el c' L3uli-plNG W/'FRE Til E Ci -rV 'L31 KE RA[ K I S, Th 5V WA 01 r� %d C -1v j5 7HeM iHAr SfDEwAI-K SPACE To CONSTR a cf AN A'bD I-r,om TO TMF,R Reason(s) for Appeal (attach a separate sheet if necessary): Tf/E PES173 C- /V 5 of '7-1q 1-3ZO k OF MARNE 4JE. UAIA.WMOUSL.X OPPOSED, Too CL05E To POME5 /`i0 07-RFR OUT D009 E)IA.ilNG I Clry/moiQCcTLV AyiA- cc'Nr To A/DMi 5 11/A RE51DcA/7-1AL ZONE. % MAA(V CODE VIaLAT10N5 Fk'om 7HFse owNERs, Signature of Appellant: J?n Date: NOV. 17, 2 0 16 FOR OFFICE USE ONLY: / Date Appeal filed and Administrative Fee received: Q7% . R 20 d.ty Clerk cc: Department Director, Deputy Director, Staff File aEWpo F:IUserslClerklSharedlFormslAppeal Application e� 15-48 Attachment G Planning Commission Staff Report, 10/20/16 (without attachments) 15-49 CITY OF NEWPORT BEACH PLANNING COMMISSION STAFF REPORT October 20, 2016 Meeting Agenda Item 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 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 bikes which would be relocated to a designated area at 123 Marine Avenue. If approved, the City Council will consider the encroachments associated with the outdoor dining area, in accordance with Council Policy L-21. 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; 2) Adopt Resolution No. approving Conditional Use Permit No. UP2015-012 to establish an outdoor dining area associated with The Village Inn located at 127 Marine Avenue (Attachment No. PC 1); and 15-50 15-51 The Village Inn Outdoor Dining Planning Commission, October 20, 2016 Page 2 LOCATION ON-SITE NORTH SOUTH EAST WEST GENERALPLAN Mixed Use Water Related Residential — Two Unit Mixed Use Water Related Residential — Two Unit Public Facility Residential — Two Unit ZONING Mixed Use Water Related Residential — Two Unit Mixed Use Water Related Residential — Two Unit Public Facility Residential — Two Unit CURRENT USE Restaurant/Residential Residential Unit (Vacant Real Estate Office Two Units Fire Station Residential 15-52 VICINITY MAP Y� -+v -,214 215 1 214+ + - �fr�a215 2131Y2 . 3 213 0 241 �� 212 -y 213 + :. 213 ..k j - �9f209�208 Il_2 e 16 as°. 207 ■1i°2pfi . 2074, 206 205 If', 2Q4 .203 ! 20'4 ZOS 112 ', 1 �.�. � _1..��i, - I 203 202 T 203 4! 0 1204 � 20f _ � �'1y-40 1.304 1��8 � � 201' II! II . • - r r a 7 PARK AVE x * a u z 8 1205 .,b207 12.7 a 126"r 1305: 1, �I 137 1 , r�, _ ,r� X127 r f 24 A S' 4 125. II y,`24 w� �'�`12 �L 23 �' � 122',!2 122 123 � 7_7 X122 9 f�21 3 118 11'.9 '�;2,y +`- 118. 119,12 p... �� i _119 I, � 1 118 k 171112 11b r 114 !`•1 2 �!2 �r'�m�►'x� �1�114, 'Yi � ��; ,T5 �., ILS "Jon, GENERAL PLAN ZONING ., ,RT •. RT .,. RT RBL.„ RBI .. 7_1 MU ..e. R -BI...: ^*RT'°R-BI ., RT ,•, PF2. , RT - -M— RBI°; . - • - :,• =R$1 >. ,. RT .. ..• .., ... _ .., .. .,. ` PF -W2, - rye _ . ... T=3 - . RT ,., a, w.RT µMU RBI ,_ , R -BI R -BI R -BI "'RBI - PAlirc AVL n .. ,. v» ❑ PF PF c a RT Ell, r..:.. MU W2 PF -' .� �. RT.:.-' •:, , .. ,r .. ., RBI .r. ,•. -- �- . .,. .. ,. RT„ �� R -BI RSI u ,. - �14 RBI" ,YR -BI ,w ."RBI ., .. RT RT' RT ..- m L -n A,. m - - RBI.: Ir. os = g LOCATION ON-SITE NORTH SOUTH EAST WEST GENERALPLAN Mixed Use Water Related Residential — Two Unit Mixed Use Water Related Residential — Two Unit Public Facility Residential — Two Unit ZONING Mixed Use Water Related Residential — Two Unit Mixed Use Water Related Residential — Two Unit Public Facility Residential — Two Unit CURRENT USE Restaurant/Residential Residential Unit (Vacant Real Estate Office Two Units Fire Station Residential 15-52 The Village Inn Outdoor Dining Planning Commission, October 20, 2016 Page 3 INTRODUCTION Prosect Setting The project site is located on Balboa Island on the southwest corner of Marine Avenue and Park Avenue. Balboa Island consists of mostly residential properties, with Marine Avenue as the commercial center of the Island. Along Marine Avenue are a variety of retail sales and service uses including restaurants, ice cream and frozen yogurt shops, clothing boutiques, hair salons, and coffee shops. A fire station is located across the street, to the east of the property. Single-family and two -unit residences are located south of the property. The Village Inn occupies a two-story building at the corner of Marine Avenue and Park Avenue. The lot is approximately 4,500 square feet in area. The Village Inn restaurant is on the first floor with a residential unit on the second floor. The restaurant is nonconforming in terms of required off-street parking. The restaurant operates from 7:00 a.m. to 12:00 a.m. daily with a Type 47 Alcoholic Beverage Control License and live entertainment. A portion of restaurant structure, which is utilized for kitchen operations, encroaches onto the residential property to the south, at 123 Marine Avenue. This property is improved with an upper level residential unit and attached two car garage. The restaurant encroachment is a nonconforming use on the residential property and is therefore subject to the City's abatement procedures. The subject property and 123 Marine Avenue are owned by Charles Kinstler who purchased this property in April 2012. Background The restaurant was established when a use permit was not required. In 2002, a permit was issued allowing for live entertainment at The Village Inn. On March 19, 2009, the Planning Commission authorized the remodel of the restaurant which included converting dining room seating into bar seating by approving Use Permit No. UP2009- 002. The Planning Commission also found the Use Permit to be consistent with provisions related to Alcoholic Sales in accordance with the Municipal Code. The Use Permit included conditions to minimize potential impacts to the surrounding neighborhood which include: Condition #27 — No dancing shall be permitted on the premises. Condition #29 — Closing the restaurant by midnight. The restaurant could previously operate to 2:00 a.m. 15-53 The Village Inn Outdoor Dining Planning Commission, October 20, 2016 Page 4 Condition #30 — Planning Commission to conduct one-year review. The review was conducted on April 8, 2010 and the business was determined to be in compliance with the Use Permit. Condition #31 — The doors facing Park Avenue shall be used for emergency use only after 8:00 p.m. A revised Live Entertainment Permit was issued in 2009 to include the following conditions (Attachment PC 5): Condition #5 — Live entertainment shall consist of no more than five musicians. Condition #9 — All exterior doors and windows shall remain closed during live entertainment events. 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 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. The Planning Commission expressed concerns with increased noise created by the outdoor dining area and open doors, and uncertainty with the location of the bike racks. Minutes from the December 3, 2015 Planning Commission meeting are provided as Attachment PC 3. To allow further consideration of the subject applications, the applicant withdrew both applications. Project Description The applicant requests a Conditional Use Permit to establish a 200 square foot outdoor dining area in front of the restaurant located at 127 Marine Avenue. The windows along the front elevation would be replaced with glass, accordian doors. The area would be improved with a raised concrete pad in order to be at the same level as the finished floor of the restaurant for ADA access. The dining area would be enclosed with a 42 - inch -high wrought iron guardrail and accommodate up to 7 tables and 16 seats. The sidewalk would be maintained at 6 -feet wide. The conceptual plans for the outdoor dining area are provided as Attachment PC 8. The proposed location is within the public right-of-way which currently is occupied by racks to accommodate 20 bikes. The applicant proposes to relocate upgraded bike racks to accommodate the same number of bikes onto 123 Marine Avenue and establish an access easement for the public's use of the racks. The area would be 12'x135' in size, is situated along restaurant property line and would be bordered by landscaping. Details of the bike area are depicted on the site plan. 15-54 The Village Inn Outdoor Dining Planning Commission, October 20, 2016 Page 5 DISCUSSION Establishment of the outdoor dining area constitutes a major change to operations, therefore, an amendment to the Use Permit is required. Locating the bike racks on the adjacent property does not require a Use Permit or other discretionary approval. The proposed encroachment will require review and approval by the City Council to waive specific elements of Council Policy L-21 (Sidewalk Cafe Standards and Procedures). Areas for the Council's consideration are 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. General Plan and Coastal Land Use Plan Consistency 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. Outdoor dining areas are 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. The proposed project is also consistent with the CLUP designation, which is intended to provide for commercial areas with limited residential development permitted above the first floor. Zoning Consistency The restaurant property at 127 Marine Avenue is designated as Mixed Use Water Related (MU -W2) by the Zoning Code. Eating and drinking establishments are permitted within this district subject to the approval of a use permit. An addition to the restaurant was previously completed which encroaches onto 123 Marine Avenue. The property at 123 Marine Avenue is developed with a two-story, single-family residence and is zoned Two -Unit Residential, Balboa Island (R -BI). The City is unable to locate building permits for the building addition, however, aerial photos indicate the encroachment has been in place prior to 1989. To remedy this issue, the applicant previously applied to amend the residential property to MU -W2 and merge the properties. The Planning Commission considered the application on December 3, 2015 but expressed concerns with the land use change and directed staff to explore other options which would allow the property owner to maintain the encroachment. Non-Confirmina Status of 123 Marine Avenue After considering several options, it was determined that the best course was to determine that the encroachment was a legal, nonconforming on the basis that it is a non-residential use on a residential property. This approach allows the property owner to request an extended abatement period (typically up to 10 years) to allow them to 15-55 The Village Inn Outdoor Dining Planning Commission, October 20, 2016 Page 6 consider broader options, which may include redesigning the restaurant, applying for a land use change, or requesting an additional extension. The Community Development Director issued a Determination of Nonconforming Status on August 30, 2016, provided as Attachment PC 4. Nonconforming uses are subject to the abatement procedures detailed in Zoning Code Section 20.38.100 and shall be discontinued within one year unless an extension is granted by the Hearing Officer. Abatement extensions have been granted for as long as 10 years. The City's Hearing Officer is scheduled to consider the 10 year extension on Monday, October 20, 2016. The results will be shared at the Planning Commission meeting. Parking No parking is provided for either the restaurant or the residential unit on the second floor. Chapter 20.40.040 (Off -Street Parking Spaces Required) of the Municipal Code excludes outdoor dining areas which are less than 25 percent of the interior net public area, or 1000 square feet, whichever is less. The proposed area is approximately 200 square feet; therefore no parking is required for the establishment of an outdoor dining area. Hours of Operation The restaurant operates 7:00 a.m. to 12:00 a.m. daily. The outdoor dining area is proposed to be open beginning at 7:00 a.m. and closing when live entertainment starts. Similar to other outdoor dining areas in mixed use zones, a condition has been included in the draft resolution requiring the doors leading from the restaurant to the outdoor patio to be closed prior to live entertainment commencing. Similarly, to ensure the glass doors provide noise attenuation, a condition has been included requiring the glass to be sound -rated. The specific hours of the outdoor dining area is proposed as follows: Winter - Sunday to Thursday 7 a.m. to 9 p.m. Summer, Weekends (Friday and Saturday), Major Holidays or Comunity Events 7 a.m. to 10 p.m. The outdoor dining area shall be closed when live entertainment is offered, which may be earlier than the hours shown above. Acoustical Analysis The applicant commissioned a noise analysis to evaluate the live performance operations and provide design mitigation. The analysis is provided as Attachment PC 5. The report recognizes that the property has been upgraded to incorporate the following noise reduction measures which results in noise levels at adjacent residential properties to be below the 50 dBA nighttime standard. 15-56 The Village Inn Outdoor Dining Planning Commission, October 20, 2016 Page 7 Existing windows upgraded with dual pane system with a STC rating of 34 Southern door replaced with an insulated metal door Weather -tight door stop seals and improved thresholds installed in all entrance doors Although noise levels meet the standards, to maximize the effective of noise reduced measures, the analysis further recommends the following: Install interior acoustical absorption panels to reduce interior noise levels. Ensure folding windows seals at all edges are maintained in good condition (top, bottom and between windows). Maintain, in good condition, air tight seals at all entrance doors using industry standard Pemko door seals and threshold system products. These recommended improvements have been included as conditions of approval. Police Department Review The Police Department reviewed the application and provided statistical crime data related to calls for service in and around the project site. The Police Department's memos dated November 4, 2015 and April 26, 2016, are provided as Attachment PC 6. Complaints regarding excessive noise have been made on several occasions. In response the Police Department has advised the restaurant, but some of the calls were "unfounded". No other violations were identified. The Police Department concludes that, should the Use Permit be approved, the change in business operation would require that an Operator License be issued by the Police Chief. A security plan will be required with the License. The Operator License will provide for enhanced control of noise, loitering, litter, disorderly conduct, parking/circulation and other potential disturbances resulting from the establishment, and will provide the Police Department with means to modify, suspend, or revoke the operator's ability to maintain late hour operations. Conditions of approval have also been submitted by the Police Department. Relocation of Bike Racks Establishment of the outdoor dining area would displace twenty (20) existing bike racks which are highly used by the community, not just patrons of Village Inn. Several alternative locations were considered with the need to establish the same number of racks. The following describes the locations considered and why they were rejected: Park Avenue, adjacent to Village Inn — rejected because inadequate area. Racks would encroach onto sidewalk. 15-57 The Village Inn Outdoor Dining Planning Commission, October 20, 2016 Page 8 Fire Station property — rejected due to lack to space to accommodate racks for 20 bikes. Disperse along 200 and 300 Marine Avenue — detailed analysis was conducted of this option to determine if location and spacing requirements would meet the need. Although adequate space was identified to accommodate more than 20 bikes, it was rejected by the City's Public Works department due to concerns with an overabundance of other items in the right-of-way (i.e., benches, newspaper racks). The bike racks are proposed to be relocated on 123 Marine Avenue. The area would be approximately 420 square feet and would be oriented along the Village Inn structure. The area would be concrete with landscape screening along the southern edge. While discretionary approval is not required to establish the bike racks, concerns have been raised from adjacent neighbors regarding increased activity and noise closer to their homes. Therefore, neighborhood compatibility should be discussed. The existing bike racks are located approximately 40 feet from the nearest residence, which is at 121 Marine Avenue. The proposed location would be approximately 20 feet from this residence. The bike racks are heavily used. However, there is no evidence that they encourage loitering or generate high levels of noise, other than members of the public conversing with one another. Nevertheless, in an effort to address the neighbors concern, the applicant proposes additional landscaping along the border of the bike area for increased screening. In addition, mature landscaping exists along the southern property line to screen the residence at 121 Marine Avenue. The location of the bike racks may also encourage riders to be more courteous of their surroundings, as compared to the previous location. The bike racks will be located at the front of a residential property which may make it more apparent that noise levels should be minimized. The proximity of the outdoor seating area and restaurant patrons may also inhibit misuse. Use Permit Findings Pursuant to Section 20.52.020 of the Municipal Code, the Planning Commission may approve an application for a use permit if the following findings are made: 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; 15-58 The Village Inn Outdoor Dining Planning Commission, October 20, 2016 Page 9 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. The proposed outdoor dining area is consistent with the purpose and intent of the General Plan, Coastal Land Use Plan and Zoning Code. The existing restaurant serves residents and visitors and is conditionally permitted in the Mixed Use Water Related district. The outdoor dining area has been conditioned to reduce potential impacts to surrounding uses, including limiting hours of operation from 7:00 a.m. to 9:00 p.m. daily, and requiring sound attenuated materials. Doors to the patio, which are to be made of sound attenuated material, will be closed after 9:00 p.m. to maintain compatibility with the surrounding neighborhood. No violations warranting issuance of a citation have been identified. The business will continue to be required to comply with the conditions of Use Permit UP2009-002 and the City's noise ordinance. Summary The applicant requests a Conditional Use Permit to establish an outdoor dining area. Appropriate conditions of approval have been created to minimize potential impact on surrounding uses and the required finding can be made. AltPrnati\/Pc 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 2). Environmental Review The project is categorically exempt under Section 15303, of the State CEQA (California Environmental Quality Act) Guidelines — Class 3 (Construction or Conversion of Small Structures) in that the improvements associated with the outdoor dining area are considered accessory to the main structure. Public Notice 15-59 The Village Inn Outdoor Dining Planning Commission, October 20, 2016 Page 10 Notice of this application was published in the Daily Pilot, mailed to all owners of property within 300 feet of the boundaries of the site (excluding intervening rights-of- way and waterways) including the applicant and posted on the subject property at least 10 days before the scheduled meeting, consistent with the provisions of the Municipal Code. Additionally, the item appeared on the agenda for this meeting, which was posted at City Hall and on the City website. Prepared by: K I /I h I WisnesKi, ,ICP, Deputy Director ATTACHMENTS PC 1 Draft Resolution Approving Use Permit PC 2 Draft Resolution of Denial for Use Permit PC 3 Planning Commission Meeting Minutes, December 3, 2015 PC 4 Director's Determination PC 5 Acoustical Evaluation, KFEB Acoustics, March 20, 2016 PC 6 Police Department Memo, November 4, 2015 and April 26, 2016 PC 7 Site Photos PC 8 Project Plans 15-60 Attachment H Planning Commission Staff Report, 11/3/16 (without attachments) 15-61 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 meeting at the request of the applicant alternative bike rack locations. The link accessed at the end of this report. October 20, 2016, Planning Commission to allow them additional time to assess to October 20, 2016 staff report may be 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). 15-62 The Village Inn Outdoor Dining Planning Commission, November 3, 2016 Page 2 REVISIONS Riker PArkc 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) 15-63 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 Proceedin 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 rinciples. 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 15-64 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. Altarnativac 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: WisnesKi, V\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 15-65 Attachment I Planning Commission Meeting Minutes November 7, 2016 15-66 IV. V. VI VII. NEWPORT BEACH PLANNING COMMISSION AGENDA CITY COUNCIL CHAMBERS — 100 CIVIC CENTER DRIVE THURSDAY, NOVEMBER 3, 2016 REGULAR MEETING — 6:30 P.M. CALL TO ORDER - The meeting was called to order at 6:30 p.m. PLEDGE OF ALLEGIANCE — Chair Kramer ROLL CALL PRESENT: Chair Kory Kramer, Secretary Peter Zak, Commissioner Bradley Hillgren, Commissioner Ray Lawler and Commissioner Erik Weigand ABSENT: Vice Chair Peter Koetting, Commissioner Bill Dunlap Staff Present: Deputy Director Brenda Wisneski; Assistant City Attorney Michael Torres; City Traffic Engineer Tony Brine; Police Civilian Investigator Wendy Joe; Senior Code Enforcement Officer Cassie Palmer; Principal Planner Jim Campbell; and Administrative Support Specialist Jennifer Biddle PUBLIC COMMENTS None. REQUEST FOR CONTINUANCES Deputy Director Wisneski reported the applicant requested Item Number 4 be tabled and re -noticed for a future date. Motion made by Chair Kramer and seconded by Commissioner Hillgren to continue Item Number 4. AYES: Kramer, Zak, Hillgren, Lawler, Weigand NOES: None ABSTAIN: None ABSENT: Koetting, Dunlap CONSENT ITEMS ITEM NO. 1 MINUTES OF OCTOBER 20, 2016 Recommended Action: Approve and file Chair Kramer added an amendment regarding CEQA impacts to his written amendments. Motion made by Commissioner Lawler and seconded by Commissioner Hillgren to approve and file the minutes of the Planning Commission meeting of October 20, 2016, as amended. AYES: Kramer, Zak, Hillgren, Lawler, Weigand NOES: None ABSTAIN: None ABSENT: Koetting, Dunlap PUBLIC HEARING ITEMS ITEM NO. 2 GELSON'S SUPERMARKET CONDITIONAL USE PERMIT (PA2015-214) Site Location: 1660 San Miguel Drive Principal Planner Campbell reported the Planning Commission first reviewed the application on September 22, 2016, at which time it was tabled for the applicant to provide additional information. A small restaurant and outdoor patio would be added to the front of the store in the area of the existing coffee bar 1of10 15-67 seating. The applicant has provided additional details and drawings to show the proposed design. The use would operate with a Type 41 Alcoholic Beverage Control license. The hours of operation would be 11:00 a.m. to 9:00 p.m. The application has been amended to include off-site employee parking for 40 parking spaces at a nearby church on Pacific View Drive. A parking waiver would apply to Sunday when parking at the church would not be available. The patio would encompass approximately 750 square feet and could be accessed through the store. Staff provided findings for formalizing of the off-site parking arrangement, which has been working effectively since late 1999. Staff felt all the findings in the Municipal Code could be met to approve a conditional use permit for the small restaurant including off-site parking and a parking waiver for Sunday. Chair Kramer and Secretary Zak, Hillgren, and Lawler advised that they had not had any ex parte communications with the applicant. Commissioner Weigand indicated he had had email communications. Brett Engstrom, on behalf of Gelson's Market, believed the applicant had provided all the information the Commission sought. The applicant requested a conditional use permit for Type 41 and Type 86 licenses, approval of off-site parking, and a parking waiver for Sunday. Chuck Mayhew, on behalf of Gelson's Market, indicated project plans followed the Irvine Company's scheme for the center. The applicant proposed retention of existing landscaping. Paulette Alexander, on behalf of the Irvine Company, had worked with the applicant on conceptual plans and would work closely with Gelson's on the final design. In response to Commissioner Weigand's question, Ms. Alexander stated there had been no parking issues with the existing tenants. She did not believe there would be an increase in customers to cause issues in the future. Chair Kramer opened and closed the public hearing with no comments made. Commissioner Hillgren appreciated the applicant's response to the Commission's comments from the previous meeting by addressing the issues and submitting a more comprehensive application. Motion made by Commissioner Hillgren and seconded by Secretary Zak to adopt a Resolution to approve Conditional Use Permit UP2015-048. AYES: Kramer, Zak, Hillgren, Lawler, Weigand NOES: None ABSTAIN: None ABSENT: Koetting, Dunlap ITEM NO. 3 THE VILLAGE INN OUTDOOR DINING USE PERMIT (PA2015-016) Site Location: 123 and 127 Marine Avenue Deputy Director Wisneski reported the Commission first considered the application in December 2015. The Village Inn was located in the Mixed -Use zone of Balboa Island. A residential unit was located above the restaurant use. Since December 2015, staff had eliminated the need for a land use amendment. The Hearing Officer determined the encroachment should be abated within ten years from the action taken today. At the end of ten years, the encroachment could be removed, the abatement period could be extended, or a land use change could occur. A noise analysis was completed which identified measures to attenuate noise from live entertainment and determined that noise could be mitigated to comply with the noise ordinance. A second noise analysis regarding noise from indoor and outdoor diners concluded there were no impacts. Bike racks would be relocated from the original proposed location. The applicant requested a conditional use permit for outdoor dining along Marine Avenue. The outdoor dining area would be approximately 200 square feet, contain 16 seats, and operate from 7:00 a.m, to 9:00 p.m., but would close at 10:00 p.m. on Fridays and Saturdays between Memorial Day and Labor Day, federal holidays and community events. The outdoor dining area would close when live entertainment was offered. Because the outdoor dining area was located in the public right-of-way, it would be subject to City Council approval. The Commission should determine whether the use was compatible with the neighborhood. Deputy Director Wisneski reviewed details of the site plans and elevations. Staff was considering locating bike corrals along Marine Avenue adjacent to existing crosswalks. Conditions of approval 2of10 15-68 required the applicant to contribute $12,000 towards installation and maintenance of the bike corrals and to install bike corrals prior to issuance of building permits for the outdoor dining area. Staff felt it was important to maintain the current bike racks until the new bike corrals were installed. Approval of the project was conditioned upon the Council providing direction to staff to pursue a bike corral option. Deputy Director Wisneski summarized prior use permits issued, noise complaints, notices of violation, and critical conditions of approval. Staff recommended approval of the use permit to establish outdoor dining. General Plan Policy 5.3.4 encouraged outdoor dining in this type of environment in that it activated sidewalks and outdoor spaces. In response to Commissioner Lawler's inquiries, Deputy Director Wisneski advised that a building permit for the project could not be issued until the new bike corrals were installed. Staff did not support Ms. McDermott's proposed amendment to include a timeframe in the condition of approval. In response to Secretary Zak's questions, Deputy Director Wisneski reported the definitions of restaurant and bar were based on the type of license. A Type 47 license indicated a restaurant with a bona fide eating establishment. The applicant could install doors and windows that opened with no outdoor seating area by obtaining a building permit. A use permit was triggered only by a change in operation. In response to Chair Kramer's request for information regarding noise complaints, Police Civilian Investigator Joe indicated the Police Department received two calls for service in 2016 from unknown callers. When patrol arrived on the scene, noise levels were acceptable. In 2015, the Police Department received four excessive noise complaints in three nights, all from anonymous callers. Patrol confirmed excessive noise on two of those occasions. Patrol conducted eight self -initiated visits; officers reported excessive noise on one of those visits. When an officer determined noise levels were excessive, he would tell the business to quiet down. Usually the noise would decrease, and the officer would not issue a notice of violation. This was the typical response to noise complaints when the Police Department and a business had a good working relationship. The Police Department had a good relationship with the Village Inn. There was no evidence the Village Inn had an over - service problem. In the past 12 months, there was no evidence that any police contact because of drunk in public resulted from the Village Inn. In response to Chair Kramer's inquiries, Senior Code Enforcement Officer Palmer explained that spot checks of businesses occurred once a month and these spot checks were not in response to complaints. Code Enforcement Officers had not found any noise violations. A live entertainment permit had specific requirements to control noise from bands. Code Enforcement Officers always found the Village Inn in compliance with ordinances. Officers carried and used sound meters to determine whether noise levels were in compliance. Code Enforcement Officers had not issued any notices of violation of the noise ordinance to the Village Inn. The public called either the Police Department or Code Enforcement with noise complaints. If complaints were made outside business hours, the Police Department would respond. When Code Enforcement noticed an influx of complaints for the same business, they would ask patrol to go by the business more often. If needed, Code Enforcement Officers would follow-up with the business during regular business hours. Other complaints about the Village Inn concerned property maintenance, but officers found nothing to warrant issuing a notice of violation. In response to Chair Kramer's question regarding correspondence of a legal nature, Assistant City Attorney Torres noted one letter received from an attorney representing some local residents. He had reviewed it with Community Development Director Brandt and Deputy Director Wisneski. They did not believe the letter raised any issues that caused concerns from a legal perspective. Chair Kramer reported he had met with the applicant on-site and had several communications with the applicant's consultant. Secretary Zak reported he had had several conversations with the applicant's consultant, had visited the site, and spoken on the phone with residents. Commissioner Lawler reported he had spoken with the applicant's consultant. Commissioner Hiilgren reported he had met with the applicant's consultant on-site and had telephone conversations. Commissioner Weigand reported he visited the site with the applicant's consultant. 3of10 15-69 Dan Miller, applicant, remarked that the Village Inn was a link between the traditional and modern impacts of Balboa Island and Newport Beach and a place where people gathered to represent the community. His team prepared a thorough, well -considered, and inclusive picture of his intentions for outdoor dining including the limitations to which he agreed. In response to noise complaints, he obtained professional acoustic data and created solutions that would positively impact noise. He had worked with the City to provide solutions that improved the neighbors' perceived impressions of bike racks. Surveys indicated approximately 20 percent of bike rack users entered the Village Inn. The Village Inn's business model was shifting to facilitate more daytime dining. In order to thrive, the Village Inn needed to align with both local residents' and tourists' expectations. He shared his personal and business background. The Village Inn was a part of the infrastructure of the community, and its presence increased both property values and community values. The Village Inn was a restaurant with cocktail service that provided warmth, substance, and a meeting place. Approval of the application was in direct correlation to the requests and needs of the community. He supported staffs recommendations, findings, and conditions of approval. Carol McDermott, consultant for the applicant, felt the history of the site was an important part of the discussion and related a brief history of the site. The applicant was working to add to the island ambience in a mixed-use zone. Balboa Island Improvement Association (BIIA) and the Merchants Association hosted events along the 100 block of Marine Avenue and sponsored parties on the site. The applicant had changed the menu from bar food to fine dining and increased food sales. The applicant wanted to attenuate noise more effectively, further the fine dining experience, continue to provide a community gathering place, remain consistent with licenses and permits, and to commit to additional conditions of approval. The outdoor dining plan was 16 seats in the location of the existing bike racks. The applicant worked with the City and contacted bike -friendly cities to find a good, alternative location for bike racks. The General Plan recommended outdoor seating, and the City Council had approved a number of locations for outdoor dining within the public right-of-way and waived the Policy L-21 requirements. The applicant proposed new windows and a Plexiglas barrier around the southern edge of the outdoor dining area to attenuate noise. Sidewalks would remain at a minimum width of 6 feet. The wrought iron fencing was required by the ABC license and would provide some safety. The majority of bike rack users were shoppers In the merchant area. Proposed locations for bike corrals were in the 200 and 300 blocks of Marine Avenue, The proposed bike corrals would accommodate 44 bikes, and the $12,000 fee would more than replace the existing bike racks. The Merchants Association unanimously supported the bike corrals. Ms. McDermott explained sound contours in relation to noise levels. The ambient noise level resulted from vehicle and pedestrian traffic and aircraft and was determined to be greater than the daytime threshold contained in the noise ordinance. Noise modeling indicated noise from interior and exterior patrons would be below the noise limit and the existing ambient noise level. Improvements included window upgrades and seals for doors. The applicant would instruct entertainers to delay performances until outdoor diners could be brought inside. No amplified televisions or paging systems were allowed in the outdoor area. With noise attenuation, noise levels would be approximately 45 dB at the property line of 123 Marine during the nighttime, thereby complying with the noise ordinance and the entertainment permit. The applicant had modified its entertainment style in response to residents' requests. The applicant had installed new windows facing 123 Marine, applied noise -attenuating paint, installed acoustical panels, hung curtains, and removed window controls in an effort to reduce noise. Noise complaints had been made, but officers found no noise violations. The applicant would agree to no truck deliveries prior to 6:00 a.m. and after 9:00 p.m. Support for the project was wide spread. She requested the Commission approve the use permit and add language regarding the applicant's contribution for bike corrals and a time period for installing bike corrals. In response to Commissioner Hillgren's inquiries regarding landscaping, Ms. McDermott advised that she had not prepared plans for landscaping, but she would submit them for staff or Commission approval. The area of enhanced landscaping was located at the corner. The existing vertical element and ground cover would be enhanced. There was no room to place planters in the outdoor dining area. In response to Secretary Zak's questions, Ms. McDermott explained that the number of doors was needed to serve the outdoor tables. The space was too small to access all tables by only one door. The doors would give the exterior a finished look and provide noise attenuation, which would improve the situation. The applicant wanted the outdoor dining area to make it readily apparent the building was a restaurant, to enhance the island feeling of being outdoors, to increase food sales, and to reduce bar service. Interior acoustical panels were installed around the entire building. The acoustical consultant was not present, but he had submitted an updated report. Measurement of patron noise was based on modeling rather than empirical evidence. 4 of 10 15-70 Commissioner Lawler stated the Commission's role was to review the noise study and determine whether it was factual. Secretary Zak noted adjacent residences could be impacted by noise. Chair Kramer advised that the matter before the Commission was the amendment to the conditional use permit to allow a 200 -square -foot outdoor dining area at the front of the restaurant. The Commission was concerned with land use rather than Code Enforcement. Chair Kramer opened the public hearing. Michele Caston supported outdoor dining at the Village Inn. Corona del Mar was more beautiful with the addition of outdoor dining. The wide sidewalk could accommodate a few tables. Outdoor dining was allowed at the site in the 1930s and 1940s. Changes to the doors and windows would reduce the noise. Allowing a few outdoor tables with restrictions was reasonable. Michael Lawler looked forward to outdoor dining at the Village Inn. Conditions of approval were well thought out. He supported the project and urged the Commission to approve it. Jack Callahan felt the Village Inn was an institution on Balboa Island. The applicant cared about Balboa Island and Newport Beach, Outside dining was a great idea and fit the Balboa Island lifestyle. He had no reservations about the applicant's plans to enhance the dining experience. The additional bike racks were a good idea. Peter Bergman recalled discussions at the December hearing on the item. He could not believe he was hearing the same proposal again. The Village Inn was not a restaurant with alcohol; it was a bar that served food, a nightclub with live music at night. He asked the Commission to vote against the use permit. Tina Sullivan stated multiple and repeated violations of a restaurant's use permit and the City's Municipal Code should disqualify an establishment from seeking a use permit and special privileges such as outdoor dining. The owners had violated every rule of common decency toward neighbors. The Village Inn had violated Sections 16, 17, 18, 22, and 23 of its use permit; any one violation authorized the City Manager to revoke the entertainment permit. The Village Inn had violated or continued to violate Sections 3, 6, 7, 8, 9, and 11 of its entertainment permit. The Village Inn routinely violated Municipal Code 5.28.040 Section B3. The Village Inn wanted the City to give it the sidewalk for expansion. The entire block of residents opposed the expansion. A member of the public advised that the Village Inn was a restaurant where he took his children. Outdoor seating was a great idea. The restaurant was family oriented. The expansion should be approved. The owner would address any issues that came up. Ellis Morcos remarked that the proposed project was not an improvement and would have a negative impact on homes on Marine Avenue. Residents had good relationships with previous owners of the Village Inn. One could not trust the current owners to obey rules. Outdoor dining was noisy, and the proposed doors would direct noise to residences. Residents with rental units would have difficulty renting those units because of noise. People had paid to install and maintain the benches where the bike racks were proposed. A member of the public suggested moving the bike racks would result in more bikes riding down Marine Avenue, which might not be a good idea. Placing bike racks at the crosswalks could reduce motorists' view of pedestrians. Bike racks were needed and used on the Island. Tommy Crosson believed the noise issue had gotten better. Residents should support businesses and allow the applicant to demonstrate his ability to improve the situation. Tom O'Brien read from the City Charter regarding conditional use permit and mitigations. Outdoor dining seemed to conflict with the section of the Charter. He questioned whether mitigations could be implemented if the noise study was wrong. Outdoor dining was placed on 10 -foot sidewalks in the 200 and 300 blocks of Marine Avenue. The sidewalk outside the Village Inn was 6 feet wide. He opposed the proposed project. Yarri Apollroth felt the bike racks were an eyesore and suggested they be placed across from the restrooms at the fire station. A nice patio rather than the bike racks would enhance the view for residents. The owner would care for the people on Marine Avenue. 5of10 15-71 Lynne O'Brien opposed the Village Inn's plans for outdoor dining. The Village Inn was located in a residential block of Marine Avenue. The proposed outdoor dining area would be only 40 feet from the two nearest residential properties. She read Chapter 20.50.080, Paragraphs 3 and 5. The proposed dining area was too narrow to accommodate both tables and chairs and pedestrian traffic. Policy L-21 prohibited outdoor sidewalk dining within 10 feet of a crosswalk. The proposed dining area was located within 10 feet of a crosswalk. The owner could reinstate the original Village Inn addresses of 1307 and 1309 Park Avenue and install doors on the Park Avenue side. The project was inappropriate for the neighborhood. Brian Moss had had no issues with sound from the Village Inn; although, he lived six or seven houses away. The proposed project would enhance the character of the restaurant, Marine Avenue, the Island, and Orange County. He supported the application. Lee Short suggested the owner could have problems with moving patrons inside from the patio tables. The owner should consider the effect of noise on the firemen across the street. Jay Truax recalled the applicant indicating entertainment would be delayed while patrons moved indoors. Only one street seemed to be complaining. People had left the restaurant because there was no outdoor dining. He recommended the Commission approve the use permit. Tim Hamilton supported outdoor dining for the Village Inn. The owner would have to police the doors to ensure noise was not an issue. The negative impacts on the community would be minimal, and the Commission should support the project. The bike racks could be placed at the fire station. Sixteen chairs would not be a huge noise concern. He believed the overall community supported the expansion. Pat O'Sullivan had viewed videos of noise violations at the Village Inn. As a retired Newport Beach police officer, he would take action against such violations. Residents would not welcome any additional noise. Shane Sullivan advised that nightclub music from the Village Inn had disturbed his family for four years. At times; he could not do his homework because of the noise. Just two days ago, his family heard music inside their living room. He played a recording of noise from the Village Inn. Mike Sullivan remarked that he gave up on Code Enforcement Officers and Police Officers doing anything about the noise. He had videos taken inside his home with windows closed of music from the Village Inn. Additional videos were taken from the street. The Municipal Code stated noise must be contained within the building, Deliveries were made as early as 3:00 a.m... The Commission had not listened to the recordings. Video recordings showed people dancing in the street and on the stage and screaming with the band. Darin Friend reported the Village Inn had never been quieter. The owner no longer hired large bands. The current owner was the most considerate the Village Inn had had. Charles Kinsler, owner, had received a letter of support from the neighbor living closest to the Village Inn and read the letter. Don Abrams felt placing the bike racks at the crosswalks was a terrible idea, because it would be dangerous for pedestrians. The Village Inn was noisy during the summer time. The people inside the restaurant rather than outside would create the noise. He suggested a friendly meeting of parties to find a compromise. Steve Rosansky, Newport Beach Chamber of Commerce, supported the project. Dan Miller was a good operator of the property and had agreed to restrictions. The noise ordinance was in effect. The operator's license was another tool for the City to prevent Code violations. Jim Simpkins had not heard any noise from the Village Inn. Mr. Miller was a man of good character. The residents of Marine Avenue should meet with Mr. Miller to reach a compromise. Susan Bartoletti had not heard any loud music from the Village Inn on her nightly walks. Residents could hear noise made by other residents. Homes were located close to one another on the Island. Ms. McDermott voiced her regret that neighbors opposed the project despite efforts to reduce noise. The sign prohibiting dancing was required by the entertainment permit. Bike racks were not owned by the City, but they S of 10 15-72 were located on the City right-of-way. No one knew who owned the bike racks. The City Traffic Engineer would have to approve the location and safety of bike racks. The Village Inn was located in the mixed-use portion of Marine Avenue. The outdoor dining area would be located 37 feet, 60 feet, and 75 feet away from the three nearest neighbors. The applicant would work with staff regarding conditions of approval. Chair Kramer closed the public hearing. In response to Secretary Zak's inquiry, Deputy Director Wisneski reported an operator's license was a condition of approval because the applicant was amending its use permit and because the business was open beyond 11:00 p.m. Condition of Approval 23 required an operator's license, which was issued by the Police Department. Police Civilian Investigator Joe advised that the operator's license was a way to support the CUP and to give enforcement. Fines under a CUP were minimal and did not have an impact. The operator's license was created so that police could prohibit serving alcohol after 11:00 p.m. or with live entertainment. In response to Commissioner Lawler's questions regarding videos and violations, Police Civilian Investigator Joe reported the Police Department had not seen the videos. This was the first she had heard of videos. The Police Department had been to the Village Inn on numerous occasions. On the Police Department's eight visits to the Village Inn, officers could not find evidence to support a noise violation. The videos would have been helpful. The Police Department received only two complaints in 2016. The Police Department had no evidence there was a significant problem. Deputy Director Wisneski indicated she had reviewed the videos with the Assistant City Manager. The oldest videos were taken within Mr. Sullivan's residence in 2012, and it was apparent he could hear music at that level. The recent videos were taken from the sidewalk outside the establishment. One could hear music from the sidewalk, but that in itself was not a violation. Section 5.28 of the Municipal Code talked about sound levels not emanating beyond the building edge. However, the live entertainment permit qualified the Code section by stating the noise shall not exceed 60 decibels on the public sidewalk. It was difficult to determine whether the noise exceeded 60 decibels in the videos. Staff maintained that they had not been able to document any violations. Senior Code Enforcement Officer Palmer stated restaurant and bar checks were conducted the prior week. When ambient noise decreased, noise from the Village Inn was barely audible. The ambient noise level by far exceeded the interior noise level. Unfortunately, complaints to Code Enforcement were made four to six years after the incidents occurred. As of the current date, there were no violations of the sound ordinance. Senior Code Enforcement Officer Palmer did not wish to speculate as to whether the videos documented noise violations. She could not state the video heard during public comment was a violation without having been present to take a sound reading at the time of the incident, In response to Commissioner Hillgren's inquiries, City Traffic Engineer Brine reported staff had just begun to review locations for bike racks. Staff shared concerns regarding visibility of sidewalks and would review locations to maximize visibility and lessen impact to parking. Staff had not previously installed bike corrals, so they were uncertain about the length of time to receive them once ordered or the length of time needed to hire a contractor to install them. Staff estimated installation would require four months. Staff would verify the Merchants Association's support for the bike corrals. The minimum sidewalk width under Americans with Disabilities Act (ADA) requirements was 48 inches. The sidewalk would be 6 feet wide after installation of the dining area and would comply with ADA requirements. Secretary Zak remarked that he voted against the use at the December meeting because of the finding regarding the general welfare of persons residing or working in the neighborhood of the proposed use. He heard the concerns of adjacent neighbors opposing the use. Most Commissioners wanted businesses to thrive. Earlier, he had inquired about opening windows and the wall to achieve the outdoor effect without having outdoor seating, to which the applicant answered yes. The positive aspects outweighed a direct denial of the use. The building would be upgraded substantially, The conditions of approval included many restrictions. He recommended including conditions of approval regarding hours of deliveries and conducting noise measurements within three months of full operation of the outdoor dining area. Commissioner Hil[gren is a supporter of outdoor dining in Newport Beach because it benefits both the customers and the restaurant operators. Opening the sidewalk for public use represents a gift of real estate which is owned by the residents of Newport Beach. In exchange for using public space, he expected the applicant to provide something in return. It is important for the improvements at the Village Inn to be of high quality because Marine Avenue and Balboa Island represent an important location in the city. The proposed wrought iron fencing and lack of landscaping looks cheap and does not create an appropriate appearance for the end of this iconic commercial district. He encouraged Commissioners to consider a condition of approval to require an 7of10 15-73 enhancement to the outdoor dining area. The new doors will provide sound attenuation which is a benefit the community and a reason to support the application. The proposed locations for the bike racks is also better for use by the public than the current location. The requirement for the Village Inn to secure an operator's license provides a needed too[ for code enforcement and he encouraged residents to complain about violations at the time they are observed so the city's code enforcement officers can respond to their issues. A requirement to conduct noise tests after operations begin was good. Commissioner Lawler felt the Commission was sympathetic to nearby neighbors. The applicant had made great strides since the prior meeting. Proposed improvements were significant. The Commission should vote based on facts rather than speculation or opinion. The use was clearly consistent with Land Use Element 5.3.4. Secretary Zak's additional condition of approval was appropriate. Commissioner Hillgren's condition of approval regarding landscaping was appropriate as well. Commissioner Weigand believed the applicant had worked hard on the application, but he also was sympathetic to residents' concerns. The applicant had agreed to conditions. The proposed location for bike racks was beneficial for residents and the community. Promoting more bike use was positive for the City. Balboa Island was a major tourism component to the City. The Council had to approve the sidewalk encroachment and the location of bike racks. The existing permit restricted deliveries between 10:00 p.m. and 8:00 a.m. If there were violations, residents needed to complain to the City. He wanted staff to provide an update on the location of bike racks. He concurred with the applicant's request regarding a payment of $12,000 within 30 days of the Council's authorization but not the request regarding 120 days. Chair Kramer believed the conditions of approval were key, particularly in this application. He encouraged the maker of a motion to include the various conditions of approval discussed. All commercial property uses were required to comply with City noise regulations. The Village Inn had to comply with the noise ordinance, and not doing so was a code enforcement action rather than a denial of a valid use. Tension between residential and commercial uses was common. Residential uses located near commercial uses were sometimes inconvenienced. Commercial uses shifted over time to meet market demands. As long as the use complied with rules, those uses should be accommodated. The City must enforce those rules. In response to Secretary Zak's request, Commissioner Hillgren stated the Commission did not need to review a landscape plan. That area should be landscaped in a sufficient manner and approved by the Director of Community Development. He encouraged the applicant to improve the wrought iron railing. Landscaping would help the appearance of that. In response to Secretary Zak's question, Deputy Director Wisneski reported the existing use permit was more restrictive than the applicant's proposal for hours of truck deliveries. The existing use permit did not allow deliveries prior to 8:00 a.m. Secretary Zak concurred with Commissioner Weigand to accept the applicant's revision to the effective date in the condition of approval regarding bike racks but not the 120 -day limitation. Commissioner Hillgren asked if there was an outside time period for installation of bike racks. City Traffic Engineer Brine indicated a four-month time period was staff's best estimate. Staff would make every effort to install bike corrals in the four-month period. Commissioner Weigand did not want the street to be without bike racks for any period of time. People would lock their bikes to fences and street signs, and the bikes would be a nuisance. He wanted a firm time period. Perhaps bike racks could be placed at the fire station or on Park Avenue. Chair Kramer did not believe it would be prudent to tie the whole thing to the bike rack issue. In response to Commissioner Weigand's questions, City Traffic Engineer Brine was much more comfortable with a period of six months. Assistant City Attorney Torres advised that staff recommended the removal of bike racks be tied to installation of bike corrals. Staff did not state a time period. The goal would be to install new bike corrals as quickly as possible. 8of'10 15-74 Secretary Zak agreed to a period of six months. In addition, the City would conduct noise tests at the applicant's expense once the outdoor seating area was operational. Deputy Director Wisneski added that the noise analysis would include a range of locations and times to demonstrate typical activity. Motion made by Secretary Zak and seconded by Commissioner Hillgren to adopt a Resolution approving Use Permit Number UP2016-912 to establish an outdoor dining area associated with an existing restaurant at 127 Marine Avenue with revisions and amendments as discussed. In response to Commissioner Weigand, City Traffic Engineer Brine clarified that staff would provide an update regarding the bike racks at four months. Chair Kramer inquired whether the applicant agreed to the conditions of approval as discussed. AYES: Kramer, Zak, Hillgren, Lawler, Weigand NOES: None ABSTAIN: None ABSENT: Koetting, Dunlap ITEM NO.4 DAWSON RESIDENCE (PA2015-224) Site Location: 2741 Ocean Boulevard This item was tabled. VIII. STAFF AND COMMISSIONER ITEMS ITEM NO. 5 MOTION FOR RECONSIDERATION None. ITEM NO. 6 COMMUNITY DEVELOPMENT DIRECTOR'S REPORT Deputy Director Wisneski reported the AutoNation application was withdrawn; therefore, the Planning Commission's decision to deny the project stood. On November 7, the Council would hear the adoption of the Local Coastal Program for the first time. Staff held a study session with the City Council, which went well. The following day, the Coastal Commission would vote on the City's categorical exclusion order. If progress continued, the City could begin implementing coastal development permits early in 2017. The City Council meeting the following week would be held on Monday rather than Tuesday. The Planning Commission's next meeting would be November 17. Planning Commission meetings for December 22nd and January 5th would be canceled. ITEM NO. 7 ANNOUNCEMENTS ON MATTERS THAT THE PLANNING COMMISSION MEMBERS WOULD LIKE PLACED ON A FUTURE AGENDA FOR DISCUSSION, ACTION, OR REPORT None. ITEM NO.8 REQUESTS FOR EXCUSED ABSENCES None. IX. ADJOURNMENT — 9:14 p.m. 9of10 15-75 The agenda for the Planning Commission meeting was posted on Friday, October 21, 2016, at 12:23 p.m. in the Chambers binder, on the digital display board located inside the vestibule of the Council Chambers at 100 Civic Center Drive and on the City's website on Friday, October 21, 2016, at 12:09 p.m. 10 of 10 15-76 Attachment J Noise Assessments 15-77 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 Dear Mr. Miller: At your request, KFEB Acoustics has prepared this letter report discussing the patron 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 with the City of Newport Beach's noise regulations. Introduction The Village Inn Restaurant is located at 127 Marine Avenue, in the City of Newport Beach, California. The project site is zoned Mixed -Use Water Related and is 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. Date: November 2, 2016 Contact: Kevin Fowler Phone: 760-331-3880 Email: kevinafowler@yahoo.com Our ref: VI -0002 15-78 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. The Village Inn Restaurant Acoustical Evaluation November 2, 2016 Page: 2/6 15-79 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 (dBA Leq) Location Interior Southern Portion of Interior 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 neiahborhood. Aircraft overfliaht was also noted as a noise source in the vicinitv 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. The Village Inn Restaurant Acoustical Evaluation November 2, 2016 Page: 3/6 15-80 • 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. The Village Inn Restaurant Acoustical Evaluation November 2, 2016 Page: 4/6 15-81 The Village Inn 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 15-82 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, Kevin Fowler, INCE Senior Acoustical Scientist Figures 1. Patron Noise Level Attachments 1. Relevant Excerpts from the City of Newport Beach Noise Ordinance The Village Inn Restaurant Acoustical Evaluation November 2, 2016 Page: 6/6 15-83 Figures 15-84 -1 W iL w I, Cs i 11 F Noise Contour Legend C 4o dBA _ 45 dBA C So dBA C 55 dBA C 6o dBA _ bs dBA Attachment 1 Relevant Excerpts from the City of Newport Beach Noise Ordinance 15-86 Pagel of 10 (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: 15-87 http://www. codepublishing. com/dtSearch/dtisapi6. dll?cmd=getdoc&Docld=99&Index=D... 6/10/2013 Page14 of 10 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, 111 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: 15-88 http://www. codepublishing. com/dtSearch/dtisapi6. dll?cmd=getdoc&Docld=99&Index=D... 6/10/2013 ALLOWABLE EXTERIOR NOISE LEVEL (Equivalent Noise Level, Leq) NOISE TYPE OF LAND 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 15-88 http://www. codepublishing. com/dtSearch/dtisapi6. dll?cmd=getdoc&Docld=99&Index=D... 6/10/2013 Page's of 10 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; 15-89 http://www. codepublishing. com/dtSearch/dtisapi6. dll?cmd=getdoc&Docld=99&Index=D... 6/10/2013 PA2015-016 09-01-16 Submittal KFEB Acoustics The Village Inn Restaurant Attn: Daniel Miller 127 Marine Avenue Newport Beach, California 92662 Subject: Acoustical Evaluation and Design Recommendations The Village Inn — Newport Beach, California Our ref: The Village Inn Restaurant is located at 127 Marine Avenue, in the City of Newport VI -0002 Beach, California. The project site is zoned Mixed -Use Water Related and is adjacent to other mixed use, commercial and residential land uses. The adjoining parcel at 123 Marine Avenue is also under the same ownership and included in the current applications on file with the City. 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. The restaurant contains a musical performance stage located indoors and adjacent to the eastern wall. The restaurant utilizes the stage for live performances and amplified music. The live performances occur from 7:00 p.m. to 10:00 p.m. on Tuesdays and Sundays and from 7:00 p.m. to 11:30 p.m. on Wednesdays through Saturdays. When the live performances are scheduled to begin, restaurant staff ensure that all of the windows and doors are closed. 15-90 Date: March 20, 2016 Dear Mr. Miller: Contact: At your request, KFEB Acoustics has prepared this letter report discussing the Kevin Fowler acoustical evaluation of The Village Inn Restaurant located in Newport Beach, California. The objective of this acoustical analysis is to evaluate the restaurant live Phone: 760-331-3880 performance operations and provide mitigation designs to comply with the City of Newport Beach's noise regulations. Email: kevinafowler@yahoo.com Introduction Our ref: The Village Inn Restaurant is located at 127 Marine Avenue, in the City of Newport VI -0002 Beach, California. The project site is zoned Mixed -Use Water Related and is adjacent to other mixed use, commercial and residential land uses. The adjoining parcel at 123 Marine Avenue is also under the same ownership and included in the current applications on file with the City. 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. The restaurant contains a musical performance stage located indoors and adjacent to the eastern wall. The restaurant utilizes the stage for live performances and amplified music. The live performances occur from 7:00 p.m. to 10:00 p.m. on Tuesdays and Sundays and from 7:00 p.m. to 11:30 p.m. on Wednesdays through Saturdays. When the live performances are scheduled to begin, restaurant staff ensure that all of the windows and doors are closed. 15-90 PA2015-016 09-01-16 Submittal 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 live entertainment begins. The windows and doors will remain closed during the live performances. Operators of The Village Inn have installed an acoustical hood around the rooftop outdoor vent as well as purchased acoustical absorption panels that are planned to be installed 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.). (For more information, please refer to Attachment 1: Relevant Excerpts from the City of Newport Beach Noise Ordinance.) The Permit to Conduct Live Entertainment for The Village Inn states that "Noise levels from live entertainment shall be controlled so as not to exceed 60 dB(A) on the public sidewalk adjacent to the exterior doors and up to 50 d(B)A at the centerline of the public alley between the Village Inn and 1305 Park Avenue while the doors are closed. Noise spikes up to 80 d(B)A on the public sidewalk adjacent to the exterior doors and up to 70 d(B)A at the centerline of the public alley between the Village Inn and 1305 Park Avenue are permitted during patron ingress and egress." Noise Methodology and Procedures Field Noise Measurement Methodology On Tuesday, February 161h, 2016 sound level measurements (dBA Leq, A -weighted) were conducted to document the live performance operations from 7:00 p.m. to 10:00 p.m. Prior to the start of the live performance, 15 minute baseline community ambient noise measurements were conducted at the eastern property line, southern property line and at the western property line. Once the live performance started noise measurements were conducted at these same pre -defined locations as well as at receptor locations across from Marine Avenue and at two residential locations south of The Village Inn Restaurant. The Village Inn Restaurant Acoustical Evaluation March 20, 2016 Page: 2/10 15-91 PA2015-016 09-01-16 Submittal A single sound level meter was deployed within the enclosed southern portion of the restaurant to document the interior noise levels during the live performances. The interior noise measurements were conduct simultaneously with the exterior measurements of the ambient environment and live performance. All noise measurements were collected in full 1/3 frequency octave band spectrum. Each measurement was recorded for a full continuous 15 -minute time period. During the on-site noise measurements, start and end times were recorded, along with any other significant community noise sources in the area. Noise Measurement Equipment The following equipment was used at the project site to measure existing noise levels: Larson Davis Model 824 Sound Level Meter Larson Davis Model 831 Sound Level Meter Larson Davis Model CA200 Calibrator Hand-held magnetic compass, microphone with windscreen, tripods Distance measurement wheel, digital camera Each sound level meter was field -calibrated prior to and following the noise measurement to ensure accuracy. All sound level measurements conducted and presented in this report are made with a sound level meter that conforms to the American National Standards Institute (ANSI) specifications for sound level meters (ANSI SIA -1983 [R2001]). All instruments are maintained with National Bureau of Standards traceable calibrations, per the manufacturers' standards. 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 The Village Inn Restaurant Acoustical Evaluation March 20, 2016 Page: 3/10 15-92 PA2015-016 impacts for evaluating compliance regulations at property lines and other adjacent land use areas. 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. 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. Table 1 summarizes the measured ambient noise measurements. Noise level measurement locations are illustrated in Figure 1 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 (dBA Ley) Location Interior Southern Portion of Interior 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 existing noise environment nearby the restaurant consisted of localized vehicle traffic on Park Avenue and Forest Boulevard 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. Live Performance Noise Measurements Upon completion of documenting the existing community ambient noise measurements on Tuesday, February 16, 2016, the live performance started at approximately 7:40 p.m. During the noise measurements of the live performance the restaurant windows and doors remained closed once the entertainment began. Noise 09-01-16 Submittal The Village Inn Restaurant Acoustical Evaluation March 20, 2016 Page: 4/10 15-93 PA2015-016 level measurements were conducted at 6 separate locations for 10 to 15 minute continuous time durations. Table 2 summarizes the noise level measurements of the live performance. Noise level measurement locations are illustrated in Figure 1. Table 2. Field Measurements of The Village Inn Restaurant Live Performance Operations. 09-01-16 Submittal The Village Inn Restaurant Acoustical Evaluation March 20, 2016 Noise levels measurements made within the interior of the restaurant adjacent to the southern wall. It should be noted that the exterior noise levels decreased as the nighttime period became later. This is primarily due to the decrease in traffic noise along Marine Avenue and Park Avenue. The measurements showed that at locations 1 and 2 the live performance at The Village Inn Restaurant became the primary noise source. The on-site field acoustical field technician noted that as the measurements moved farther away (Locations 5 and 6) the noise from the live performance because less audible where community noise became the primary noise source. Based on the noise level measurements presented in Table 2, it was determined that the noise levels contribution at the adjacent property lines (Measurement Locations 1 through 4) from the live performances is approximately 55 dBA. Based on this determination the noise levels generated by the existing live performance operations are shown to be at or below the Newport Beach daytime noise threshold limit of 55 dBA Leq, but will exceed the nighttime noise threshold limit of 50 dBA Leq. The nighttime exceedance would only occur if the live performances operate past 10:00 Page: 5/10 15-94 Interior' Exterior Noise Measurement Location Measurement Measured Measured Measurement Description Period Noise Level Noise Level Location (dBA Leq) (dBA Leq) 1 Southern Property Line 19:40 — 19:55 85.0 58.5 2 Western Property Line 19:58 — 20:13 86.8 56.9 3 Eastern Property Line 20:17 — 20:32 87.7 58.0 4 Across Marine Avenue 20:34 — 20:49 88.1 56.9 5 Across Marine Avenue 20:51 — 21:04 88.4 55.5 South of the Restaurant 6 115 feet South of the 21:06 — 21:14 88.9 54.8 Restaurant 1 Southern Property Line 21:16 — 21:28 89.7 55.8 2 Western Property Line 21:31 — 21:46 88.7 56.4 Noise levels measurements made within the interior of the restaurant adjacent to the southern wall. It should be noted that the exterior noise levels decreased as the nighttime period became later. This is primarily due to the decrease in traffic noise along Marine Avenue and Park Avenue. The measurements showed that at locations 1 and 2 the live performance at The Village Inn Restaurant became the primary noise source. The on-site field acoustical field technician noted that as the measurements moved farther away (Locations 5 and 6) the noise from the live performance because less audible where community noise became the primary noise source. Based on the noise level measurements presented in Table 2, it was determined that the noise levels contribution at the adjacent property lines (Measurement Locations 1 through 4) from the live performances is approximately 55 dBA. Based on this determination the noise levels generated by the existing live performance operations are shown to be at or below the Newport Beach daytime noise threshold limit of 55 dBA Leq, but will exceed the nighttime noise threshold limit of 50 dBA Leq. The nighttime exceedance would only occur if the live performances operate past 10:00 Page: 5/10 15-94 PA2015-016 p.m. Also, it should be noted that the existing operations comply with the 60 dBA required by the Permit to Conduct Live Entertainment. Noise Model Calibration Information collected from the site visit, along with restaurant plans, were used to create a virtual, three-dimensional model of The Village Inn Restaurant using the Cadna A noise modeling software. Virtual sound sources used were characterized in terms of location, acoustic directivity and power capabilities to properly represent the live performance operation. Based on the noise level measurements collected on Tuesday, February 16'", 2016, it was determined that the noise levels contribution at the adjacent property lines (Measurement Locations 1 through 4) from the live performances is approximately 55 dBA. Therefore, the model was calibrated based on the 55 dBA noise level associated with Measurement Locations 1 through 4. The computer model yielded noise level predictions that are very comparable with those measured during the site visit. The computer model demonstrated acoustic properties that closely emulate the actual environment. Within the model there were several identified discrepancies that may be due to a number of factors which include: variations in the quality of construction, deviations in the absorption coefficients assigned from actual absorption properties of surfaces, and low - frequency limitations of geometric acoustic prediction techniques. Table 3 compares the outdoor measurement noise levels to the calculated noise model levels. For a graphical representation of the existing restaurant noise levels please refer to Figure 2: Existing Noise Levels. Table 3. The Village Inn Restaurant Noise Model Calibration Results 09-01-16 Submittal The Village Inn Restaurant Acoustical Evaluation March 20, 2016 Page: 6/10 15-95 Live Calculated Noise Measurement Location Performance Noise Difference Measurement Description Noise Level (dB) Location Contribution (dBA Ley) (dBA Ley) 1 Southern Property Line 55.0 56.8 1.8 2 Western Property Line 55.0 53.6 1.4 3 Eastern Property Line 55.0 55.0 0.0 Page: 6/10 15-95 PA2015-016 09-01-16 Submittal The Village Inn Restaurant Acoustical Evaluation March 20, 2016 Acoustical Evaluation of the Proposed Village Inn Modifications with Noise Reduction Measures The Village Inn Restaurant is proposing upgrade modifications incorporating noise reduction measures to the existing building. The proposed modifications are bulleted below. Figure 3 illustrates the proposed upgrade modifications. A new patio area located on the eastern side of the restaurant. The new patio area shall incorporate outdoor seating for a total of 16 patrons. The eastern wall will be replaced with a folding wall/window system that will open up to the new patio area. 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 windows will be upgraded to a dual pane window system, which will provide an STC rating of 34 (see Attachment 2). The southern door will be replaced with a new insulated metal door. 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. New 9 foot high storage will be built as an extension of the southern portion of the restaurant. With the incorporation of the proposed upgrade modifications and noise reduction measures, as described above, the noise impacts to the adjacent residential property lines will be below the 50 dBA nighttime property line noise threshold limit. Table 4 summarizes the noise levels from the Village Inn Restaurant during live performance operations incorporating the proposed upgrade modifications and noise reduction Page: 7/10 15-96 Live Calculated Noise Measurement Location Performance Noise Difference Measurement Description Noise Level (dB) Location Contribution (dBA Leq) (dBA Leq) 4 Across Marine Avenue 55.0 1 53.4 1 1.6 Acoustical Evaluation of the Proposed Village Inn Modifications with Noise Reduction Measures The Village Inn Restaurant is proposing upgrade modifications incorporating noise reduction measures to the existing building. The proposed modifications are bulleted below. Figure 3 illustrates the proposed upgrade modifications. A new patio area located on the eastern side of the restaurant. The new patio area shall incorporate outdoor seating for a total of 16 patrons. The eastern wall will be replaced with a folding wall/window system that will open up to the new patio area. 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 windows will be upgraded to a dual pane window system, which will provide an STC rating of 34 (see Attachment 2). The southern door will be replaced with a new insulated metal door. 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. New 9 foot high storage will be built as an extension of the southern portion of the restaurant. With the incorporation of the proposed upgrade modifications and noise reduction measures, as described above, the noise impacts to the adjacent residential property lines will be below the 50 dBA nighttime property line noise threshold limit. Table 4 summarizes the noise levels from the Village Inn Restaurant during live performance operations incorporating the proposed upgrade modifications and noise reduction Page: 7/10 15-96 PA2015-016 measures. For a graphical representation of the recommended mitigation designs and results please refer to Figure 4: Upgrade Modification Noise Impacts. Table 4. Upgrades Modification Calculated Noise Level Impacts Noise Measurement Location Threshold Calculated Measurement Description Limit (dBA) Noise Level Location (dBA)l 1 Southern Property Line 50 47.7 2 Western Property Line 50 32.5 3 Eastern Property Line 50 46.0 4 Across Marine Avenue 50 44.0 5 Alley between the Village 50 26.0 Inn and 1305 Park Avenue 1 The eastern folding wall as well as the all doors and windows are closed and sealed. Table 4 illustrates that with the proposed modification upgrades and noise reduction measures the Village Inn Restaurant live performance operations will comply with the City of Newport Beach's nighttime noise threshold limit of 50 dBA. However, to maximize the effectiveness of the noise reduction measures the following is recommended: Complete the installation of the interior acoustical absorption panels. This will help reduce the reflect noise within the restaurant. By controlling the reflective sound within the restaurant the interior noise levels can be reduced by 1 to 2 dB. Ensure that the folding wall seals are maintained in good condition. The seals should be replaced if any damage occurs. Ensure that the top and bottom of the folding wall is completely sealed. It is further recommended that all entrance doors maintain air tight seals using the industry standard Pemko (www.pemko.com) door stop seals and threshold system products (see Attachment 3). Ensure that the door and window wall seals and thresholds are maintained in good condition. The seals and/or thresholds should be replaced if any damage occurs. 09-01-16 Submittal The Village Inn Restaurant Acoustical Evaluation March 20, 2016 Page: 8/10 15-97 PA2015-016 09-01-16 Submittal 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. 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, Kevin Fowler, INCE Senior Acoustical Scientist The Village Inn Restaurant Acoustical Evaluation March 20, 2016 Page: 9/10 15-98 PA2015-016 Figures 1. Noise Measurement Locations 2. Existing Noise Impacts 3. Proposed Project Upgrade Modification 4. Upgraded Modification Noise Impacts Attachments 1. Relevant Excerpts from the City of Newport Beach Noise Ordinance 2. Proposed Window Sound Transmission Data 3. Door Stop Seals and Threshold System Products 09-01-16 Submittal The Village Inn Restaurant Acoustical Evaluation March 20, 2016 Page: 10/10 15-99 PA2015-016 09-01-16 Submittal Figures 15-100 PA2015-016 09-01-16 Submittal Attachment 1 Relevant Excerpts from the City of Newport Beach Noise Ordinance 15-101 PA2015-016 09-01-16 Submittal t C Lem The Village Inn Restaurant O Interior Noise Measurment 0 Exterior Noise Measurment PA2015-016 % r .9 09-01-16 Submittal r Noise Contour Legend r 4o dBA 45 dBA y' 5o dBA r 55 dBA 6o dBA 65 dBA � F ■ PA2015-016 09-01-16 Submittal CL ?5.CXi' carr, ts� ra• v.rn � LJ Fa I �y lu L J r � � > .VIIIi!- I _z 51 TE PLAN SGALE= 'Jllb'71'�s' �I �� I o ■■ rr ■r ■ ■■r■■�tL■■rr#■■■rr■r ■rrr■ �■ F.. r■1t`r■■i "now `BE" ME■�rr�rr rr■rr■■r■rr■rr■r■■rrrrrWMEMMMSrrr■r rrrr■rrrrrrr■■rr■rr■■rrr■■ ` rrr■■fir■r■r■rTrERIN WRIEN ii■r ■ - -- MMM■■■H■■Ml■!r■■rr■■rrrr■rr --- � � y i w orroorrrrrrrr�rorrrrrr IIIIIIIIIIIIIIIIt EAST ELEVATION NEA - - ■rwwrrrrrw■s■rwwrr■wrw■■■wr -� OPEN 4E5TAIUFZANT -'"O4A------ -- -- --— ---- r. 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SPAGESPAGE 4C1 h ' i I 51 TE PLAN SGALE= 'Jllb'71'�s' �I �� I o ■■ rr ■r ■ ■■r■■�tL■■rr#■■■rr■r ■rrr■ �■ F.. r■1t`r■■i "now `BE" ME■�rr�rr rr■rr■■r■rr■rr■r■■rrrrrWMEMMMSrrr■r rrrr■rrrrrrr■■rr■rr■■rrr■■ ` rrr■■fir■r■r■rTrERIN WRIEN ii■r ■ - -- MMM■■■H■■Ml■!r■■rr■■rrrr■rr --- � � y i w orroorrrrrrrr�rorrrrrr IIIIIIIIIIIIIIIIt EAST ELEVATION NEA - - ■rwwrrrrrw■s■rwwrr■wrw■■■wr -� OPEN PA2015-016 09-01-16 Submittal s e� `r_ Noise Contour Legend o 4o dBA 45 dBA 5o dBA 55 dBA 6o dBA 65 dBA 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. 09-P1499bLtQf 10 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: 15-106 http://www. codepublishing. com/dtSearch/dtisapi6. dll?cmd=getdoc&Docld=99&Index=D... 6/10/2013 PA2015-016 09-b'1WAIO 10 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, 111 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: 15-107 http://www. codepublishing. com/dtSearch/dtisapi6. dll?cmd=getdoc&Docld=99&Index=D... 6/10/2013 ALLOWABLE EXTERIOR NOISE LEVEL (Equivalent Noise Level, Leq) NOISE TYPE OF LAND 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 15-107 http://www. codepublishing. com/dtSearch/dtisapi6. dll?cmd=getdoc&Docld=99&Index=D... 6/10/2013 PA2015-016 09Twtlrhiof 10 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; 15-108 http://www. codepublishing. com/dtSearch/dtisapi6. dll?cmd=getdoc&Docld=99&Index=D... 6/10/2013 PA2015-016 09-01-16 Submittal Attachment 2 Proposed Window Transmission Data 15-109 PA2015-016 MAGIC WINDOWS PARALLEK SIH CASEMENT WINDOW (BLIND OPEN) Sound Transmission Lass 70 STC 34 60 X491 20 10 09-01-16 Submittal 01 100 125 160 204 250 315 400 500 630 800 1000 1250 1600 2000 2500 3150 4000 One -Third Octave Band Center Frequency jhz] Sound'frensmKsion Lass s7c Contour CfTT.T j 71�'[iii:l �l:�i'i[�1'►T1Ii I �I�I'►'I��Ii i� Report No. 102081321CRT-001a Page 5 of 7 April 16, 2015 PA2015-016 GENERAL 09-01-16 Submittal The sound -insulating property of a partition element is expressed in terms of the sound transmission loss. The procedure for determining this quantity is to mount (and perimeter seal) the test specimen as a partition between two reverberation rooms. Sound is introduced in one of the rooms (the source room) and measurements are made of the noise reduction between source room (10,000 cu .ft.) and receiving room (16,640 cu. ft.). The rooms are so arranged and constructed that the only significant sound transmission between them is through the test specimen. The test opening is constructed such that it is approximately one inch larger in size than the test specimen. The specimen is placed in the test opening an a half-inch bead of "DUX -SEAL", a dense, non -hardening, clay -like material, to isolate it from the supporting base. The space between the test specimen and the wall opening is sealed on bath sides employing the same sealing material. The purpose of the Sound Transmission Class (STC) is to provide a single figure rating that can be used for comparing the sound -insulating properties of partition elements used for general building design purposes The higher the rating (STC) the greater the sound insulating properties of the partition. The purpose of the Outdoor -Indoor Transmission (RITC) is to provide a single number rating that can be used for comparing building facade designs, including walls, doors, windows and combinations thereof. This rating is designed to correlate with subjective impressions of the ability of building elements to reduce the overall loudness of ground and air transportation noise. It is intended to be used as a rank ordering device. EQUIPMENT Equipment Calibration Date Due Date S1N Model Brand Asset Microphone Calibrator 313012015 3/3012016 2130586 4231 BrUel and K aJr A227 Pulse Analyzer 313012015 313012016 2519258 7539 Bruel and �jwr P446 Microphone/Pre - DF 10/2/2014 1012{2015 2381159 4942 gruel and K"ayr 6449 Microphone/Pre - DF 911512414 9115/2015 2381160 4942 Bruel and Kjmr 8450 DESCRIPTION OF TEST SPECIMEN The test specimen consisted of a 23 518 inch wide by 59 inch high Magic Windows Paraflex SIH Casement Window. The window weighed 42 1/2 pounds. The sample was equipped with an internal solid blind. The window was tested with the blind open and closed. A drawing of the assembly (supplied by the client) is on the next page. Report No. 102081921 CRT -001 b Page 2 of 7 April 16, 20115 15-111 PA2015-016 REMARKS 1, Ambient Temperature 2. Relative Humidity: CONCLUSION 70°F 31% 09-01-16 Submittal The test method employed for this test has no pass -fail criteria; therefore, the evaluation of the test results is left to the discretion of the client. Date of Tests: April 7, 2015 Report Approved by: Brian Cyr Engineer Acoustical Testing Attachments: None Report No. 102081921CRT-001b Report Reviewed By: James R. Kline Engineer/Quality Supervisor Acoustical Testing Page 7 of 7 April 16, 2415 15-112 PA2015-016 REPORT 09-01-16 Submittal 3933 US ROUTE 11 CORTLAND, NEW YORK 13045 Order No. 192081921 Date: April 16, 2015 REPORT NO. 102081921 GRT -001 b SOUND TRANSMISSION LOSS TESTS AND CLASSIFICATION OF A MAGIC WINDOWS PARALLEX SIH CASEMENT WINDOW (STANDARD GLASS) RENDERED TO CANADIAN THERMO WINDOWS INC. 75 ROUNDTREE DAIRY ROAD WOODBRIDGE ON L4L 6C8 INTRODUCTION This report gives the results of Sound Transmission Loss tests and the determination of the Sound Transmission Class on a Magic Windows Parallex SIH Casement Window. The sample was selected and supplied by the client and was received at the laboratories on March 27, 2015. The sample appeared to be in new, unused condition upon arrival. AUTHORIZATION Signed Intertek Quotation No. 500589471 TEST METHOD The specimen was tested in accordance with the American Society for Testing and Materials designation ASTM E90-2009, "Standard Test Method for Laboratory Measurement of Airborne Sound Transmission Loss of Building Partitions", and classified in accordance with the American Society for Testing and Materials designation ASTM E413-2010, "Classification for Rating Sound Insulation" and ASTM Standard E1332 -10a entitled, "Standard Classification for Rating Outdoor -Indoor Sound Attenuation". This report Is for the excluslve use of Intertek's Client and Is provided pursuant to the agraemani between Intertale and Its Client, Intertek'r responsibillly and liability are limitod to the farms and conditions of the agreement. Intortok assumes no Ilablifty to any party, other than to the Client In accordance with the agreement, for any Ides,. expense or damage occasioned by the use of this report. Only the Cllont Is authorized to copy of di5lrlbule this. report and then only in Its entirety. Any use dt the Iratertek nano or one of Its marks for the sale or advertisement of the taslad rnaterlal, product or servlca must first he approved In writing by Intanok. The obsarvatlons and test results In this report are relevant only to the sample testad. This report by Ilaolf does not Imply that the material, product, or eervlce Is or line ever been under an Inlertek certlficalion program. Measurement uncertainty budgets have oxen determined for applicable test methods and am a Vatl'abte rlpOft MCILLO6t. 15-113 PA2015-016 09-01-16 Submittal Attachment 3 Door Stop Seals and Threshold System Products 15-114 PA2015-016 PEMKO U*q- : OA 3/16 if 3/11 (4.8) (19.1) _ door bottom 1/411 neoprene (N) —► (84) threshold (sill) 313N 09-01-16 Submittal Copyright © 2008 Pemko Manufacturing Co. All rights reserved. Reproduction in whole or in part without the express written permission of Pemko Manufacturing Co. is prohibited. 313 N PDF Rev 1 - 05.25.08 15-115 PA2015-016 PEMKO ASSAABUN IlhermoPlastic (P) 3�8 {9.5) 1�4n 515 . {6 .4) {9.5) P50- 09-01-16 Submittal Copyright © 2008 Pemko Manufacturing Co. All rights reserved. Reproduction in whole or in part without the express written permission of Pemko Manufacturing Co. is prohibited. P50 PDF Rev 1 - 05.14.08 15-116 Attachment K Police Department and Code Enforcement Memos 15-117 OF NEWPORT BEACH POLICE DEPARTMENT ,4' DETECTIVE DIVISION BEACH �/ 43 MEMORANDUM TO: Brenda Wisneski, Deputy Community Development Director FROM: Wendy Joe, Police Civilian Investigator DATE: October 17, 2016 SUBJECT: The Village Inn Outdoor Dining and Land Use Amendments 127 Marine Avenue Use Permit No. UP2015-006 (PA2015-016) Below is a list of calls for service recorded since the Police Department's previous memo dated April 16, 2016. Patrol officers have responded to 7 calls for service to and around the Village Inn at 127 Marine Avenue. One of those calls was regarding loud music or excessive noise which was quiet when the officer arrived. Listed below are the dates and dispositions of the calls; • 0412612016, 10:31 p.m. — Medical Aid (Fire only, PD not required) • 05/03/2016, 9:58 p.m. — Loud Music complaint from a neighbor; was quiet upon PD arrival i 05/1012016, 7:22 p.m. — Medical Aid (Fire only, PD not required) • 06125/2016, 8:57 a.m. — Stolen vehicle; unfounded • 07119/2016, 11:00 p.m. — QUI driver near the Village Inn i 0812012016, 10.48 a.m. — Stolen Bicycle from the bike racks,. report taken • 09128/2016, 9:14 p.m. — Officer flagged down near the Village Inn; however the call did not involve the location. The Police Department's request for conditions remains consistent with the previous memorandums dated November 4, 2015 and April 26, 2016. If you have any questions as to the content of this memorandum, please contact me at (949)644-3705 or wioe@nbpd.org. Wendy' Police Ci Tian Investigator, Special Investigations 15-118 Memorandum CITY OF NEWPORT BEACH COMMUNITY DEVELOPMENT DEPARTMENT 100 Civic Center Drive Newport Beach, California 92660 949 644-3200 newportbeachca.gov/community development To: Brenda Wisneski, Deputy Community Develeopment Director From: Cassi Palmer, Senior Code Enforcement Officer Date: October 17, 2016 Re: 127 Marine Ave. Code Enforcement has received the following complaints since December 01, 2013: 9/1/2016: Complaint that construction and painting have occurred over the last month. o Findings: No further construction at this time, paint performed and allowed. 5/23/2016: Complaint regarding unpermitted advertised Beer garden for 6/5/2016 event. o Verbal warning requiring special event permit if outdoor event was to occur. o Site investigation on 6/5/2016 demonstrated no outdoor event occurred. 3/16/2016: Complaint regarding noise from The Village Inn. o Request for Police Patrol evening check: 3/19/2016. PD reported observations of no dancing. Music was not audible from across building with the exception of when the front door was opened for patron ingress/egress. 5/30/2015: Complaint regarding property maintenance of the adjacent property (125 Marine). o 6/2/2016: Meeting with owner at site. Verbal warning to remove unnecessary items from public view (newspaper, ladder, etc.). o 7/1/2015: Property maintenance reported as improved (newspapers, ladders, etc.). 2/19/2015: Complaint regarding: Unpermitted construction, dancing, property maintenance, use of adjacent property, and audible music from interior. o Correction letter issued on March 20, 2015. o Notice of Violation issued on June 9, 2015. 9/8/2014: Complaint regarding the adjacent property (125) as an outdoor patio without approval from the City of Newport Beach. o No violation observed. Met with PO regarding use of property for special events. 7/19/2014: Complaint of loud music on Saturday nights. o Bar check on 7/19/2014 revealed low volume music; not excessive. RP updated. 7/17/2014: Complaint regarding "blatant code violations, etc." o No further information was provided regarding alleged violations. If you have any questions on this memo, please do not hesitate to contact me. Cassi Palmer Senior Code Enforcement Officer Community Development Department Tmplt:-02/05/15 15-120 OFFf ' ,. ' NEWPORT BEACH POLICE DEPARTMENT 0 DETECTIVE DIVISION 43 �l MEMORANDUM TO: Brenda Wisneski, Deputy Community Development Director FROM: Wendy Joe, Police Civilian Investigator DATE: April 26, 2016 SUBJECT The Village Inn Outdoor Dining and Land Use Amendments 127 Marine Avenue Use Permit No. UP2015-006 (PA2015-016) At your request, the Police Department has reviewed the project application for the Village Inn, located at 127 Marine Avenue, Balboa Island. Per the project description, the applicant is applying for an amendment to change the land use designation from residential to mixed-use for 123 Marine Avenue, which is a residential lot abutting the existing restaurant. The application also Includes an amendment to allow a 240 -square foot outdoor dining area on Marine Avenue, which would include proposed accordion doors on the Marine Avenue side of the building. Should the conditional use permit be amended, an Operator License will be required per the municipal code. The applicant maintains a Type 47 (On -Sale General - Eating Place) Alcohol Beverage Control license. Statistical Crime Data Attached is a report compiled by Newport Beach Police Department Crime Analyst Caroline Staub, which provides detailed statistical information related to calls for service in and around the applicant's current place of business at 127 Marine Avenue. The Police Department divides the City into areas referred to as Reporting Districts. This allows the Police Department to create statistical data, as well as better communicate officer locations while policing. The proposed applicant location is within Reporting District (RD) 42 which encompasses Balboa Island. RD 42 is not a high crime area; however, alcohol issues are a concern in this area. • In 2015, RD 42 was 36% under the city-wide average of reported crime • In 2015, 38% of arrests in RD 42 were directly related to alcohol 15-121 Village Inn UP2015-006 Over -Saturation The applicant premise is located within census tract 0630.06. This census tract has an approximate population of 2,831 with 14 active ABC licenses. That is a per capita ratio of 1 license for every 202 residents. Per the Business and Professions code, we compare this per capita ratio to Orange County's per capita ratio of 1 license for every 505 residents_ This location meets the legal criteria for undue concentration. These same figures are presented utilizing Reporting District criteria instead of census tract criteria below: • RD 42 has 11 on -sale ABC licenses • RD 42 has 3 off -sale ABC licenses • RD 42 is over the Orange County per capita ratio of 1 to 505 • RD 42 is over saturated with a total per capita ratio of 1 license for every 197 residents Comments and Recommendations Since the Police Department's previous memo dated November 4, 2015 was written, patrol officers have responded to 6 calls regarding loud music or excessive noise. One neighbor made 3 calls, another neighbor made 1 call, and the remaining two were made anonymously or were unrecorded by police dispatch. Listed below are the dates and dispositions of the calls: • 11/6/2015, 11:15 p.m. — advised • 11115/2015, 7:42 p m. — unfounded • 11/20/2015, 9:41 p.m. —advised • 12/15/2015, 8:57 p.m. — unfounded • 12/19/2015, 11:01 p.m. -- unfounded • 03/12/2016, 6:31 p.m. — advised Should the conditional use permit be amended, an Operator License will be required per the municipal code. A security plan will be required as an addendum to the License. As part of the security plan, the Police Department will request the Village Inn install security cameras with a one-month recording retention. The Police Department requests City Staff and the Planning Commission evaluate the following recommendations (these recommendations have been duplicated from the Police Department's previous memo dated November 4, 2015): • The Police Department anticipates the addition of the outdoor patio will exacerbate any existing noise concerns. If this project is approved, the Police Department suggests no exterior amplified music or loudspeaker of any kind be used on the patio. Given the close proximity to homes in the neighborhood, we recommend the outdoor patio be closed by 9.00 p.m. daily. Proper signs indicating, "No Alcohol Beyond this Point" should be displayed, and a barrier of at least 36" should be constructed around the patio perimeter. The patio, as well as all windows and doors, should be closed during live music. 15-122 Village Inn iJP2015-006 • Condition #25 of the restaurant's existing conditional use permit requires all employees serving alcoholic beverages complete a certified training program in responsible methods and skills for serving and selling alcoholic beverages. Records of such training shall be maintained and made available to the police department upon request. On 1110312015 1 spoke with applicant Dan Miller, who advised he could not be sure which of his employees were certified Mr. Miller last conducted in-house training on the topic approximately 18 months ago. He has required certified training of his employees in the past, but it was closer to 2012 when he acquired the business. Given that [in 2014] 61% of arrests in RD 42 are alcohol related, the police department expects this condition to be met moving forward. Update: After speaking with Dan Miller on April 25, 2016, he reported 10 out of 12 staff members (servers and bartenders) are LEADS certified. The remaining two are newly hired and will be scheduled for training shortly. 4 Mr. Miller has indicated the restaurant's quarterly gross sales of food are 44% and his beverage is 56% of his total sales. He reports this food sales figure is up from 17% when he acquired the business. As common practice, City Staff applies to new restaurants what is known as the 50150 condition within the industry. The condition requires the quarterly gross sales of alcoholic beverages shall not exceed the gross sales of food during the same period. The Police Department acknowledges the positive direction Mr. Miller is taking and recommends this condition be imposed to bring consistent with current common practice. Update: On April 25, 2016 Dan Miller reported his current food to beverage ratio remains consistent at 44% food and 56% beverage. • The Police Department recommends the Village Inn be required to install security cameras with a one-month recording retention, It is our experience that cameras in conjunction with proper signage will not only deter, but help us to solve crime. CONDITIONS OF APPROVAL, Police Department requests all existing conditions of approval remain, and the following conditions be added (these conditions have been duplicated from the Police Department's previous memo dated November 4, 2015): 1 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. 2 There shall be no reduced price alcoholic beverage promotions after 9.00 p.m 3. There shall be no dancing allowed on the premises. 15-123 Village Inn UP2015-006 4. Food service from the regular menu must be available to patrons up to thirty (30) minutes before the scheduled closing time. 5. Strict adherence to maximum occupancy limit is required. 6. No exterior amplified music, public address speakers, outside paging system, loudspeaker, sound system, or other noise generating device shall be utilized in conjunction with this restaurant. 7. The operator of the restaurant facility shall be responsible for the control of noise generated by the subject facility. All noise generated by the proposed use shall comply with the provisions of Chapter 10.26 and other applicable noise control requirements of the Newport Beach Municipal Code. If you have any questions as to the content of this memorandum, please contact Investigator Wendy Joe at (949)644-3705 or wjoe@nbpd.org. Joe P010 Civilian Investigator, Special Investigations c v V Brad Miller Sergeant, Special Investigations Jay Short Lieutenant, Detective Division David W. McGill Deputy Chief S 15-124 rr CN&ion T. Lewis Subject: 127 Marine Ave 25 Subject RD: 0 not applicable 2,325 RD42 0, Adjacent RD: 0 2 936 R D43 46 Adjacent RD: 29 3 2,380 R D41 10 Adjacent RD: 197 30 2,941 RD12 23 Newport Beach 102,056 California not available National aotovailable NEWPOKT BEACH POLICE DEPAI-TMENT C Rr&mP, A natys&k u nt X 870 Santa Barbara Drive - Newport Beach - CA 92660 • 949-644.3791 2015 CRIME AND ALCOHOL-RELATED STATISTICS 1 0 not applicable 1 0 0, 0 0 2 not applicable 58 46 2,104.50 29 3 8 0 10 14 197 30 23 2,944.06 23 5 3 0 5 3 340 72 110 4,324.32 91 18 17 0 7 12 139 56 92 3,899.72 79 6 27 1 26 28 51 2,339 3,841 2,739.65 3,523 449 666 28 1,185 438 194 1,104,901 notovatlable 2,955.13 1,217,089 155,285 89,901 15,673 not available 97,653 381 9,443,212 notovoilable 3,052.79 11,205,833 1,117,852 414,854 321,125 not available not applicable not applicable Summary for Village Inn at 127 Marine Ave (RD42) In 2015, RD42 had a total of 104 reported crimes, compared to a city-wide reporting district average of 163 reported crimes. This reporting district is -59 crimes, or -36%, UNDER the city-wide average. The number of active ABC licenses in this RD is 14, which equals a per capita ratio of one license for every 197 residents. Orange County averages one license for every 505 residents and California averages one license for every 381 residents. This location is within an RD that is OVER the Orange County and OVER the California per capita averages of ABC licenses. Part l Crimes are the 8 most serious crimes as defined by the FFBi Uniform Crime Report - Homicide, Rape, Robbery, Aggravated Assoult, Burglary, Larceny -Theft, Auto Theft, and Arson. This report reflects City of Newport Beach raw crime data for 2015, through December 31, before unfounded crimes are removed. California and National crime figures ore based on the 2014 Uniform Crime Report which is the most recent edition. Crime Rate refers to the number of Part 1 Crimes per 100,000 people. Number of Active ABC Licenses is the total of all types of retail licenses known to the NBPD as of 01/07/2016. All Population figures taken from the 2010 US Census, 4/26/2416 15-125 Additional Information Petty Theft BAR CHECK DISTURBANCE MUSIC VolumeDISTURBANCE TALKING RD'RD43 DRUNK IN PUBLIC Burg/Theft From Auto KEEP THE PEACE LOUD ANIMAL 'NOISE VolumePATROL CHECK RD'RD41 PETTY THEFT REPORT Burg/Theft From Auto SUSPICIOUS PERSON Simple Assault 15-126 Attachment L City Council Policy L-21, Sidewalk Cafe Standards and Procedures 15-127 SIDEWALK CAFE STANDARDS AND PROCEDURES PURPOSE L-21 These standards and procedures are adopted pursuant to Chapter 13.18 of the Municipal Code in order to encourage appropriate outdoor activities in the public right- of-way, to ensure that the space used for outdoor dining in the public sidewalk will serve a public purpose, to ease the process of obtaining permission to operate an outdoor dining facility, and to ensure adequate space for pedestrians on the sidewalk adjacent to sidewalk cafes. DEFINITIONS Sidewalk Caf6. An outdoor dining area on a public sidewalk where patrons may consume food and/or beverages provided by an abutting food service establishment. Such establishments may either provide table service in the outdoor dining areas or sell take-out items to be consumed in the outdoor dining area. These regulations do not apply to outdoor dining on private property. GENERAL PROVISIONS A. Permit required. Outdoor dining on a public sidewalk may occur only pursuant to a Sidewalk Cafe License Encroachment Permit (hereinafter "Encroachment Permit-). B. Prohibited locations. Outside dining will not be permitted on sidewalks designated by City Council resolution as shared bicycle and pedestrian facilities. C. Permit transfer. An Encroachment Permit may be transferred to a subsequent operator of the same establishment subject to approval by the Public Works Director and payment of an Encroachment Permit transfer fee established by the City Council. Prior to approval of the transfer the Public Works Director may modify the terms of the permit as deemed appropriate to protect public health, safety and welfare. D. Zoning requirements. Outdoor dining on a public sidewalk shall be subject to the requirements and limitations set forth in Section 20.82.050 (Accessory Outdoor Dining) of the Municipal Code. An Encroachment Permit may be processed concurrently with an Accessory Outdoor Dining Permit. 1 15-128 L-21 E. Conditions of approval. The Public Works Director shall have the authority to apply conditions to the approval of Encroachment Permits as appropriate to ensure compliance with the provisions of this policy. Standard conditions of approval are provided in this Council Policy. In addition to these standard conditions, special conditions may be applied as deemed appropriate by the Public Works Director. F. Authority of the Public Works Director; Appeal. The location and configuration of any sidewalk cafe shall be subject to approval by the Public Works Director, who shall consider public safety issues unique to the pedestrian and vehicular needs of the specific location when reviewing Encroachment Permit applications. Notwithstanding any other provisions of this policy, the Public Works Director shall have the authority to deny any Encroachment Permit application or revoke any existing permit if it is determined to be detrimental to public health, safety or general welfare. The decision of the Public Works Director may be appealed to the City Manager by the applicant. The decision of the City Manager shall be final. G. Indemnification. The Permittee shall defend, indemnify and hold the City and its employees harmless from and against any loss or damage arising from the use or existence of the improvements or encroachment authorized under an Encroachment Permit. H. Insurance, The Permittee shall obtain and maintain in force comprehensive general liability, broad form property damage and blanket contractual liability insurance in a combined single limit amount, per claim and aggregate, of at least one million dollars ($1,000,000.00) covering the Pemlittee's operations on the sidewalk. Such insurance shall name, on a Special Endorsement form, the City, its elected and appointed boards, officers, agents and employees as additional insureds. A Certificate of Insurance shall contain provisions that prohibit cancellations, modifications, or lapse without thirty (30) days prior written notice to the City. I. Revocation. The Public Works Director may revoke this permit at any time if it is determined that continued operation of the sidewalk caf6 is detrimental to the public interest or the Permittee is in violation of conditions to the permit. 2 15-129 L-21 J. Abatement. In the event that the Permittee fails to abide by the terms and conditions of this permit, the Public Works Director may summarily abate any prohibited improvements and the Permittee shall pay all costs incurred by the City in such abatement. K Inspection. The Public Works Department may inspect improvements within the public right-of-way at any time without notice to the Permittee. L. Indemnification. The Permittee shall defend, indenuufy and hold the City and its employees harmless from and against any loss or damage arising from the use or existence of the improvements or encroachment authorized under this permit. M. Insurance. Permittee shall obtain and maintain in force comprehensive general liability, broad form property damage and blanket contractual liability insurance in a combined single limit amount, per claim and aggregate, of at least one million dollars ($1,000,000) covering the applicant's operations on the sidewalk. Such insurance shall name, on a Special Endorsement form, the City, its elected and appointed boards, officers, agents and employees as additional insureds. A Certificate of Insurance shall contain provisions that prohibit cancellation, modifications, or lapse without thirty (30) days prior written notice to the City. N. Permit limitations. This permit is issued in conformance with Newport Beach Municipal Code Chapter 13.18 and Council policy L-21 relating to outdoor dining on public sidewalks. However, issuance of this permit does not imply that all governmental agency requirements for starting a new restaurant or expanding an existing one have been satisfied. Business owners are responsible for securing and complying with all required licenses and permits from other agencies including the state Alcoholic Beverage Control Board, the County Health Department, and the City of Newport Beach. Sale of alcoholic beverages in outdoor dining areas shall comply with Section 10.04.010 of the Newport Beach Municipal Code and Council Policy K-7 (Determination of Convenience and Necessity of Alcoholic Beverage Outlets). O. No alterations. The floor of the outdoor dining area shall be maintained at the same level as the sidewalk, and no alterations to the sidewalk or coverings on the sidewalk (e.g., borings for recessed sleeves) shall be installed unless expressly approved by the Public Works Director. c 15-130 L-21 P. Disabled access. The outdoor dining area shall be accessible to the disabled, and buildings adjacent to these dining areas shall maintain building egress as defined by the Uniform Building Code and State of California Title 24 Disabled Access Standards. Q. Marra eg ment. Restaurant management shall operate the outdoor dining areas in compliance with the terms and conditions of this permit and shall not delegate or assign the responsibility. The Permittee shall ensure that sidewalk caf6 patrons do not disturb persons on the adjacent right-of-way by loud, boisterous, and unreasonable noise, offensive words or disruptive behavior. R. Maintenance. Restaurant management shall keep the outdoor dining area clear of litter, food scraps, and soiled dishes and utensils at all times. Trash receptacles shall be provided in outdoor dining areas used for consuming take-out items unless public trash receptacles located nearby are determined to be adequate by the Public Works Director. At the end of each business day, establishments are required to clean (sweep and wash) the entire sidewalk in and around the outdoor dining area and remove debris to a closed receptacle. No debris shall be swept, washed, or blown into the sidewalk, gutter or street. If disposable materials are used, the establishment shall comply with all applicable City recycling programs. Awnings and umbrellas shall be washed whenever they are dirty and, in any event, no less than two times each year. Private trash receptacles shall be emptied daily. S. Furniture removal. When the establishment stops serving for the day and patrons already seated in it leave, further seating in the outdoor dining area shall be prohibited and the outdoor dining furniture shall be removed from the right- of-way ightof-way unless otherwise approved in the Encroachment Permit. T. Plans and permits. All City -approved plans and permits for the outdoor dining area shall be kept on the premises for inspection at all times when the establishment is open for business. U. Smoking. Restaurant management may permit smoking in the outdoor dining area consistent with all applicable statues and regulations. Management may also prohibit smoking in the outdoor dining areas. 4 15-131 L-21 V. Permit transfers. This permit may be transferred to a subsequent operator subject to approval by the Public Works Director and payment of a transfer fee as established by the City Council. Prior to approval of a transfer the Public Works Director may modify the terms of the permit as deemed appropriate to protect public health, safety and welfare. W. Termination. Upon termination of the Encroachment Permit, the Permittee shall immediately remove the barriers around the outdoor dining area, return the sidewalk to its original condition, and remove all personal property, furnishings, and equipment from the sidewalk. Any personal property remaining on the premises shall be removed pursuant to the laws of the State of California and the City. X. Locations where sidewalk cafes are prohibited. Sidewalk Cafes shall be prohibited in Shared Bicycle/ Pedestrian Facilities. Locations of shared bicycle/ pedestrian facilities are as follows: Campus Drive - south side Irvine Avenue - east side Jamboree road - west side Mac Arthur Boulevard - east side Ocean Front Riverside Avenue - North side San Joaquin Hills Road - south side San Miguel Drive - west side San Miguel Drive - both sides APPLICATION PROCEDURE Von Karman Ave. to Jamboree Rd. Orchard Ave. to Bristol St. Eastbluff Dr. North to Campus Dr. Jamboree Rd. to Campus Dr. F St. to McFadden Place & westerly line of Ocean Front parking lot to 36th St Cliff Dr. to 150 feet north of Avon Ave. MacArthur Blvd. to Marguerite Ave. Port Sutton Dr. to San Joaquin Hills Rd. San Joaquin Hills Rd. to Avocado Ave. A. An Encroachment Permit shall be required for all encroaching furniture and improvements. The application shall be filed with the Public Works Department on a form provided by the Public Works Department. The application shall be 5 15-132 L-21 signed by the owner of the property, or his authorized agent. Authorized agents shall submit written authorization. The application shall be accompanied by a site plan, drawn to scale and fully dimensioned, which accurately depicts the location, height, nature and extent of all proposed improvements and objects within the encroachment zone. All fixed features such as tree wells, sign posts, parking meters, fire hydrants, news racks, etc. within twenty feet (20') of the encroachment zone shall be depicted on the site plan. B. Prior to issuance of the Encroachment Permit the applicant shall provide both the Certificate of Insurance and the completed standard Special Endorsement in a form meeting the approval of the Public Works Director and the City Attorney. TERM Valid encroachment permits shall remain in effect until modified or revoked. SIDEWALK CAFE DEVELOPMENT STANDARDS A. Horizontal Clearance. A clear, continuous pedestrian path not less than six feet (6') in width shall be required for pedestrian circulation outside of the outdoor dining area, provided that the Public Works Director may require more than six feet (6') if necessary to protect the public safety. Areas with heavy pedestrian traffic may be required to maintain a minimum of eight feet (8') clear width on the sidewalk. As used herein, pedestrian path means a continuous obstruction - free sidewalk area, paved to City standards, between the outside boundary of the dining area and any obstruction, including but not limited to parking meters, street trees, landscaping, street lights, bus benches, public art, and curb lines. These requirements may be modified at the discretion of the Public Works Director in locations where unusual circumstances exist and where public safety would not be jeopardized. B. Allowable uses. An outdoor dining area may incorporate street trees or street furniture, provided that the required pedestrian path is maintained outside of the outdoor dining area. C. Setbacks from corners, streets and alleys. When an outdoor dining area is located at a street corner, a ten -foot (10') setback from the corner of the building shall be maintained along both frontages. When an outdoor dining area is located adjacent to a driveway or an alley, a five-foot (5') setback shall be maintained from the driveway or alley. These requirements may be modified at 6 15-133 L-21 the discretion of the Public Works Director in locations where unusual circumstances exist and where public safety would not be jeopardized (e.g., the sidewalk adjacent to the proposed outdoor dining area is wider than usual or the perimeter of the building has an unusual configuration). D. Extensionto__a_dja_cent properties. Subject to approval of the Public Works Director and the limitations of NBMC Sec. 20.82.050, an outdoor dining area may extend onto the sidewalk in front of an adjacent business with the written consent of both the adjacent business owner and property owner. DESIGN STANDARDS A. Barriers. No barrier shall be required if the applicant proposes to limit the outdoor dining area to one row of table and chairs abutting the wall of the establishment and if no alcohol will be served. Establishments that serve alcoholic beverages in the outdoor dining area shall provide a physical barrier that meets the requirements of this policy and of the Alcoholic Beverage Control Board. Barriers should compliment the building facade as well as any street furniture and be somewhat transparent (such as wrought iron) and shall be able to withstand inclement weather. Barriers must be 70% transparent and shop drawings showing the design must be submitted to the Public Works Department for approval upon request. Barriers shall conform to the Public Works Department installation standards and be removable. Barriers and furniture shall be removed at the end of each business day unless otherwise approved by the Public Works Department. Barriers shall be designed to be sectional in nature and easily removed by no more than two people. Barriers may be anchored through the use of recessed sleeves and posts, by wheels that can be locked into place, or weighted bases, however, when they are removed, the resulting surface must be flush with the sidewalk. The height of any barrier shall not exceed three feet six inches (3'6"). 7 15-134 Lr21 B. Awnings and Umbrellas. The use of awnings over the outdoor dining area and removable table umbrellas may be permitted, provided they do not interfere with street trees. No portion of an awning shall be less than eight feet (S') above the sidewalk and no portion of an umbrella shall be less than seven feet (T) above the sidewalk. Awnings may extend up to five feet (5') from the building front or cover up to fifty percent (50%) of the outdoor dining area, whichever is less. Awnings shall have no support posts located within the public right-of- way. A building permit must be obtained prior to installation of an awning. Heaters, electrical lighting, and/or planting shall not be attached to the awning structure. C. Lighting. Outdoor lighting fixtures should compliment the style of the building. Lighting fixtures shall not be glaring to motorists or pedestrians on the adjacent right-of-way, and shall illuminate only the outdoor dining area. Outdoor lighting may be installed on the facade of the building. Electrical fixtures shall not be permitted in the public right-of-way. Lighting shall be installed by a licensed electrician under an electrical permit from the Building Department. Battery operated lamps or candles will be permitted. D. Desigg. The design, material, and colors used for chairs, tables, umbrellas, awnings and other fixtures should compliment the architectural style and colors of the building facade and street furniture. E. Si 1s. Notwithstanding any other provision in the Municipal Code, signs and logos shall be permitted on umbrellas in outdoor dining areas. F. Heaters. Portable propane heaters shall be allowed within the outdoor dining area. G. Landscaping. Any landscaped pots or planters, if desired, shall be placed within the permitted barrier. Such planters shall be portable and not line the barrier in a continuous fashion. The height of planter and plantings shall not exceed 42 - inches. Barriers and awnings may not be planting with vines. All planters and pots must be placed on the interior of the barrier. Plants shall be properly maintained and stressed or dying plants shall be promptly replaced. Because plant fertilizers contain materials that can stain the pavement, water drainage from any plants onto the adjacent sidewalk shall not be allowed. Potted plants shall have saucers or other suitable systems to retain 15-135 L-21 seepage and be elevated to allow for air flow of at least one inch (1") between saucers and sidewalk. FEES A. Application fee. An application fee established by resolution of the City Council shall be paid at the time an Encroachment Permit application is submitted to the Public Works Department. B. Transfer fee. A transfer fee established by resolution of the City Council shall be paid at the time an Encroachment Permit transfer application is submitted to the Public Works Department. C. Annual use fee. An annual use fee established by resolution of the City Council shall be paid upon annual renewal of an Encroachment Permit. No use fee shall be charged during the first year of operation. VIOLATION/ REMEDY In the event that a Permittee fails to abide by the provisions of this policy or the terms and conditions of an encroachment permit, the Public Works Director may summarily abate any encroachment or improvement that is in violation of this policy. The Permittee or property owner shall pay all costs incurred by the City in abating the encroachment or improvement. The Permittee or property owner may appeal the decision of the Public Works Director to the City Manager. The determination of the City Manager with respect to abatement shall be final. Adopted - March 11, 1996 Corrected - May 28,1996 Amended - March 22,1999 Amended - April 23, 2002 Note: This policy was adopted as L-19 on 3-11-96, however this number was already assigned to Leased Street Lights (approved 2-26-96). 9 15-136 Attachment M Draft Resolution of Denial 15-137 ATTACHMENT K RESOLUTION NO. 2017- A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH, CALIFORNIA, OVERTURNING THE PLANNING COMMISSION'S APPROVAL OF USE PERMIT NO. UP2016-012 TO ESTABLISH AN OUTDOOR DINING AREA ASSOCIATED WITH AN EXISTING RESTAURANT AT 127 MARINE AVENUE (PA2015-016) WHEREAS, 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 outdoor dining area also requires relocation of existing bike racks; WHEREAS, Mr. Miller 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; WHEREAS, 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). The Coastal Land Use Plan category is Mixed Use Water Related (MU - W); WHEREAS, 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 remains in effect; WHEREAS, 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; WHEREAS, 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 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; WHEREAS, on November 3, 2016, the Planning Commission conducted a public hearing in the Council Chambers located at 100 Civic Center Drive, Newport Beach. A notice 15-138 Resolution No. 2017- Paae 2 of 3 of time, place and purpose of the public hearing was given in accordance with the NBMC. At conclusion of the hearing, the Planning Commission approved the project and adopted Resolution 2035 containing the written findings supporting the action; WHEREAS, following the Planning Commission's approval, a neighbor living adjacent to the subject property appealed the Planning Commission's approval to the City Council; and WHEREAS, on January 24, 2017, the City Council held a noticed public hearing to consider the appeal 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. Evidence, both written and oral, was presented to, and considered by, the City Council at the public hearing. NOW, THEREFORE, the City Council of the City of Newport Beach, California, hereby resolves as follows: Section 1: The City Council does hereby overturn the Planning Commission's approval of Use Permit No. UP2016-012 to establish an outdoor dining area associated with an existing restaurant at 127 Marine Avenue (PA2015-016). The City Council's decision is made in accordance with NBMC Section 20.52.020(F) on the basis that it is unable to make the following findings: A. The use is consistent with the General Plan and any applicable specific plan; 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; C. The design, location, size, and operating characteristics of the use are compatible with the allowed uses in the vicinity; 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 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. Section 3: 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 4: The recitals provided in this resolution are true and correct and are incorporated into the operative part of this resolution. Section 5: If any section, subsection, sentence, clause or phrase of this resolution is, for any reason, held to be invalid or unconstitutional, such decision shall not affect the validity or constitutionality of the remaining portions of this resolution. The City Council hereby 15-139 Resolution No. 2017 - Page 3 of 3 declares that it would have passed this resolution, and each section, subsection, sentence, clause or phrase hereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases be declared invalid or unconstitutional. Section 6: This resolution shall take effect immediately upon its adoption by the City Council, and the City Clerk shall certify the vote adopting the resolution. ADOPTED this 24" day of January, 2017. Kevin Muldoon Mayor ATTEST: Leilani I. Brown City Clerk APPROVED AS TO FORM: CITY ATTO Y.OFFICE �z r) Aaron C. Harp City Attorney 15-140 Attachment N Correspondences 15-141 Wisneski, Brenda From: Paul Watkins <paul@lawfriend.com> Sent: Friday, January 13, 2017 1:23 PM To: Dept - City Council Cc: Wisneski, Brenda; Rhonda Watkins Subject: Village Inn Dear Honorable Mayor Muldoon and Honorable Councilmembers: My wife (Ronnie) and I decided to grab a bite last eve at the Village Inn after a meeting for the upcoming Boat Parade Awards Dinner. Hadn't been there for a couple of years. What a pleasant surprise. Decor is upscale and that menu (including the fish tacos) was to die for. Folks nearby were oohing and aahing about the rib eye steak. Can't wait to try it next time. Well behaved crowd, and fun atmosphere (as always). Our bartender shared the owner's interest in providing limited outdoor seating along Marine. We mentioned that The Bungalow outdoor seating works great and it certainly looked to Ronnie and me that limited outdoor seating with controlled hours at the VI would be a fantastic addition for locals and visitors alike. The "new" Vl is family-oriented, as you know, and we have no doubts that the quiet "Inside" ambiance will be matched on the "outside". Hopefully you will agree to allow restricted and controlled outdoor seating at the VI. What a pleasant way this will be to pass a quiet summer evening. Please feel free to give me a call if you have any questions. Thank you. Sincerely, Paul Paul K, Watkins for Paul K. Watkins, APC 4400 MacArthur Boulevard, Suite 320 Newport Beach, CA 92660-2031 Of Counsel: Self & Bhamre Cell; (714) 403-6408 Telephone: (949) 955-0230 E -Mails Paul@I_awfriend.com and paul@watkinsle as l.com 15-142 Wisneski, Brenda From: Larry Smith <Ismith@surterreproperties.com> Sent: Monday, January lb, 2017 9:47 AM To: Muldoon, Kevin; Wisneski, Brenda Cc: carol@entitlementadvisors,com; Danvibdt@gmail.com Subject: I Support Outdoor Dining at The Village inn Hi Kevin and Brenda, The Village Inn is a perfect place for outdoor seating. Balboa Island needs more outdoor dining and I support the proposal by the VI. I don't think having outdoor dining with controlled hours of operation will be disruptive to the neighbors. After all, it is across the street from a Fire Station! Please approve this application. Respectfully, Larry This email is intended solely for the person or entity to which it is addressed and may contain confidential or proprietary information. If you are not the named recipient, or you received this email in error, you are not authorized to copy, print, share, save, or rely upon this email; instead, please contact the sender immediately and delete this email and any attachments. Additionally, in accordance with applicable professional rules and regulations, please understand that any written advice contained in, forwarded with, or attached to this e-mail is not intended or written by the sender of this email to constitute, and must not be used as a substitute for, the advice of licensed engineers, lawyers and accountants. 15-143 i.,Ah1;5` i,. �R�l7t1 fim�Ce"t fa550i.i�f? 3 -' T 949.717.P191'sr949.717.7391>�,�m�7t gas wuv�r.45aia6nTtv�Q4ufs.c�rn ww+x.Sa�rRerrePrnperRles.com- _ �, tkO,�- Wwga xl CwtTT Drive, $Ae W, Nmwpvt each.. CA 92q�{? This email is intended solely for the person or entity to which it is addressed and may contain confidential or proprietary information. If you are not the named recipient, or you received this email in error, you are not authorized to copy, print, share, save, or rely upon this email; instead, please contact the sender immediately and delete this email and any attachments. Additionally, in accordance with applicable professional rules and regulations, please understand that any written advice contained in, forwarded with, or attached to this e-mail is not intended or written by the sender of this email to constitute, and must not be used as a substitute for, the advice of licensed engineers, lawyers and accountants. 15-143 Wisneski, Brenda From: Marie Case <marie@case-comm.com> Sent: Tuesday, January 17, 2017 3:48 PM To: kevinmmuldoon@yahoo.com; Muldoon, Kevin Cc: Wisneski, Brenda Subject: Support for Village Inn Outdoor Dining Hello Kevin. want to 'voice' my support for the proposed outdoor dining at the Village Inn on Balboa Island. As you know, this restaurant and bar was established some 80 years ago and is an institution on Balboa Island. The owner/operator has made many changes and improvements to the interior to demonstrate his position as a family dining restaurant while also addressing complaints about noise to ensure his commitment to the neighbors on Marine Avenue. With so little outdoor dining in the area, it seems appropriate to add a few tables to the Village Inn. It will be a boon for business at the Village Inn and on Balboa Island - especially during the daytime - and add to the Balboa Island 'experience' for local residents and visitors, too. Please approve the Village Inn's proposal. Thank you, Kevin. I appreciate everything you do for our wonderful City. Best, Marie Marie Case 2101 East 15 Street # 12 Newport Beach, CA 92663 Case Communications 0,949.721,8422 1 C.714.745.8177 Marie Case-Comm.com I www.Case-Comm.com 15-144 Wisneski, Brenda From: Harp, Aaron Sent: Tuesday, January 17, 2017 6:42 AM Cc: Brown, Leilani; Kiff, Dave Subject: FW: Tomorrow's meeting Attachments: Harp 2.doc Good Morning Honorable Mayor and Council Members, Attached please find information received from Mr. Sullivan related to the Village Inn matter on your agenda for next week. From: Mike Sullivan [mai_lto:sullivanphoto roadrunner.com] Sent: Wednesday, January 11, 2017 3:35 PM To: Harp, Aaron Subject: Tomorrow's meeting Dear Mr. Harp — Looking forward to meeting you tomorrow. Attached is some "Homework reading," that should save you some time by answering some anticipated questions in advance. I know your time is valuable, but as promised I intend to make available to you as much information as possible. I hope this reading, lengthy as it is, will indeed save you time. Best regards, Mike Sullivan 1 15-145 Dear Mr. Harp -- (Some of this report contains excerpts from note to planning staff) It has now been almost two years since the owners of the Village Inn were ordered by the city to correct the illegal deconstruction of their interior sound barrier and moving their stage, which has resulted in four years of torment for my family. This illegal deconstruction was and is a clear violation of section 6 of their entertainment permit, and has been at the heart of the neighborhood noise problem for four years now. The city has done nothing to enforce that notice to correct. On the contrary, the city has enabled their behavior to continue unabated for another full year and a half. We still hear the relentless sound and vibration of band music inside our house. No one in city government seems to comprehend just how much damage you have done to my family. You have collectively not understood or appreciated, or acknowledged our description of exactly how stressful so many hours of band music inside one's home can be — especially the bass. Even as recently as November of 2016 we still hear band music in our house! It's very annoying. We keep our windows closed at night even when it's hot. Sitting out on my patio at night (once my favorite part of living here) is now impossible without hearing band music on certain nights. The same is true for our neighbors across the street and the porch they love so much. And of course no amount of public relations can fix the fact that they still sometimes leave windows open during nightclub music, as they did recently for two hours. The music was so loud that the woman across the street and three houses down could hear it inside her living room had to call the police. This is a violation of sections 7, 8, and 9 of their entertainment permit issued in July 2012, and an additional violation of municipal code 5.28.060 section C. But our main complaint remains their refusal to contain their band music within their building even when their windows are closed. Once again we had to do our own research to discover city codes that should have been enforced, but were not. Not only can we hear band music inside our house, for four years this band music could obviously be heard outside on the sidewalk. And I'm not talking about the front doors where a reasonable amount of noise will be heard with opening and closing. On our side of their building, passersby can be seen dancing and screaming from the sidewalk at some bands in particular to Go, Go, Go! Municipal code 5.28.040 section B-3 states that as a condition for approval of an entertainment permit, the band music shall be contained within the building. Failure to comply with this provision is cause for the city manager to revoke that entertainment permit! 15-146 This came as new information to us, and makes your staff report quoting police and code enforcement at the Dec. 3, 2015 planning commission meeting regarding noise levels and "self -initiated bar checks" that reported "no violations" — now seem absurd. And again this past November, you reported no noise violations despite personally viewing some dozen video recordings, which prove otherwise. (More on that later) Anyone walking or driving anywhere remotely near the side or back of the building in the past four years would be able hear band music loud and clear outside of the building. That would include two police officers last winter who could plainly hear how loud it was from across the street more than 120 feet away near the restrooms at the fire station. They said they were too busy to help, but would return later, which is another story to be included in a future report, which sad to say, detail many additional such police incidents and inaction. You in city government know all the codes. How did this happen, that such an obvious and ongoing, egregious violation was allowed to continue? For four years they violated this municipal code almost nightly and you in the city did nothing to help us. Limiting the band to five musicians hardly exempts them from "reasonably" complying with this municipal code as it was intended. Their loudest band has only three musicians, but many bands employ synthesizers, which imitate multiple instruments simultaneously, making these numbers meaningless. Why write a municipal code if the words don't mean anything? Either the words in the code mean something or they don't. Furthermore any time a police officer or code enforcement person enters the building, he or she would be looking right at the violation of section 6 of their entertainment permit, which states that band music shall be performed on the stage as it is shown on the floor plan submitted with the application. Remember, it was the deconstruction of the back of the stage, which formed the sound barrier, and the moving of the stage that is the crux of four years of torment for my family and our neighborhood. And it was the reason the city was finally forced to get involved — but only after we had to resort to FOIA to get a copy of their entertainment permit and show it to code enforcement. And yet it's still there in defiance of your order to correct. Not a single citation has been issued in four years. Why is there a different set of rules for these owners, and a different set of rules for the rest of us? As this document increases in length, it is urged that you continue reading because we wish to give the city as much information as needed, in order to grant every opportunity to make amends by not harming us further with additional expansion in our direction. The man with the decibel meter gave me the idea to videotape the band noise, which I did a few weeks later. Back in 2012 when they first violated their permit and made such a racket and because we got no help from the city, I 2 15-147 videotaped the screaming and dancing from my own living room. This was before we convinced the owners to at least get some sound curtains (which they then wanted us to pay for). From inside my own closed living room window, all the way across the yard we could hear very, very loud band music, which could be heard plainly inside our house. I have several nights of such videotape, which I told code enforcement about to convince them to help us out. We were assured that help was on the way, so I never showed it to them. All videos have now been downloaded and are available to the city manager. Updates: On April 26, 2016 the band music was so loud that I again videotaped the noise coming from the Village Inn. I stood out on the street, thirty feet away from the side windows of their building, almost the same distance from the restaurant to my house. I went out there six different times and recorded about a minute each time. Anyone viewing any one of these recordings would conclude that after four years, this business is still in gross violation of common decency and several city codes, and still the city has done nothing to help us. This is no way for my family to live. This is no way for me to spend my time. Another update: On May 3, and again on May 17, 1 recorded very loud music, showing fifteen or twenty people dancing and yelling. This incident of multiple violations was so loud and boisterous that any person viewing this video would insist that the city manager has cause to revoke their entertainment permit. (See municipal code 2.28.060 section c) Brenda Wisneski viewed this and a dozen similar recordings, and yet at the planning commission meeting on Nov. 3, 2016 she told the commission that these videos showed no noise violations. That statement was completely false. Outrageous! (Details to follow) Another update: Monday May 23, 2016 was a typical example, which still happens. The band was not particularly loud, so we thought we'd have a quiet night. But my son couldn't sleep so he asked me to rub his back. As I sat on his bed and rubbed his back, it got really quiet and I realized what he meant, and why he couldn't sleep. I could feel the bass myself, and knew I would not be able to sleep through that either. We've told these owners about what the bass does to us up to seventy or eighty times in texts and in person. It has never done us any good. They do what ever they want. More videos: On June 3, 2016 1 again recorded several videos of loud music coming from the Village Inn. More videos: On June 21, 2016 1 again recorded loud band music coming from the Village Inn. (Additional video recordings now continue into July, and now September and October) 15-148 Recent insert — August: It appears as though this writing will evolve into a running commentary as I had planned to send this to you and the planning commission when the next hearing was scheduled. But now fifteen (15) Zoning Administration hearings have come and gone without a date set. Meanwhile they continue to ignore your order to correct, stretching out their ongoing violations for a year and a half and still counting. Now we're into September and October -- and now December. These examples are the tip of the iceberg. They illustrate just one of many reasons why a city should never allow a restaurant to behave like a nightclub right next to people's homes — using the false assumption that noise ordinances could possibly address the problem. We're just scraping the surface so far. There is so much more. We're trying to give the city every opportunity to make amends here by not harming us any further. The city should never have permitted this to happen right next to our homes. And we will never accept it as status quo. The decision to grant a permit allowing the piano bar to be replaced by amplified music with up to four (now five) piece bands, including drums was made by the finance department — not the planning commission, not the city council, and with no input allowed from the neighborhood. (The finance department? This is no way to run a city.) This is no way to treat the taxpaying residents of such a quiet, quaint, peaceful community as Balboa Island. And then these new owners even violated that permit, and took it to another level never seen here before. Up until these new owners, we had the best block on the Island. Our houses are near the shops, yet we had peace and quiet on our short one-way street. And before these owners came — right next to the restaurant was the prettiest yard on the whole Island, which was also the buffer between the restaurant and our homes. They changed that beautiful residential front yard into a backyard dumping ground for broken and discarded restaurant equipment with trash piled five feet high for months at a time, including discarded restaurant booths and broken tables, and even a rusted out broken water heater. The almost three years of deliberate squalor has been well documented, and finally acknowledged by code enforcement. See many photos. (Much more on that purposeful and unbelievable squalor later) In 2002, the planning commission refused to take a vote on whether to grant approval for amplified music, including drums at the Village Inn. This was only months after a contentious hearing on this very subject of loud band music disturbing the peace and quiet of a neighborhood in CDM. The minutes of that meeting on October 18, 2001 show that this would certainly be a situation to be avoided again — pitting a neighborhood against a boisterous restaurant behaving 4 15-149 more like a nightclub. Nevertheless, the commissioners did avoid the subject, by passing the buck to the finance department, stating that the planning commission lacked jurisdiction on the matter. The result is the same mess discussed by the commission just months previous. The minutes of that commission meeting regarding the CDM restaurant on Oct 18,2001 revealed something else very relevant. Back then as is the case now, no one in city government, including the police, fully understood exactly how disturbing the sound of unrelenting bass music hour after hour can be inside one's own home. Police and planning commissioners were wrestling with various decibel readings of ambient street noise vs. band music, even attempting to mitigate the annoyance factor by noting that at some moments in time, the band music heard outside was no louder than the ambient street noise, thus seeking to minimizing the stress felt by those homeowners complaining. I felt sorry for those complaining homeowners as I read the minutes of that meeting because I know exactly how they felt. One owner said he could "feel" the vibration of the bass. This was refuted by a police officer who said that when he went there he could not feel vibration. Of course he couldn't. He was outside. This was, and is a ludicrous comparison because ambient "white noise" is not heard once inside your house, but the competing band music, especially the bass can clearly be heard and felt. The Type of noise is more relevant than decibel levels. Noise ordinances are useful when it comes to air conditioners and leaf blowers, but completely inadequate when trying to measure the annoyance factor of nightclub band music penetrating people's homes. Hearing hours of band music along with screaming and cheering is far more annoying than ambient street noise. The bass, for instance, which does not register on sound meters, penetrates everything, including the walls to our kids' bedrooms. The city needs to understand these differences before some judge or jury figures it out for them. Nightclubs have their place in any city. But the Village Inn is a restaurant — not a nightclub. A restaurant behaving like a nightclub should never be deliberately placed right next to people's homes by city planners. The situation at the Village Inn did not just evolve on its own. It was created by the city itself, and exploited to the max by these particular owners. Ironically, on the very same day of the aforementioned contentious meeting on Oct.18, 2001, the planning staff authorized a 90 -day trial period allowing amplified music, including drums and up to four performers at the Village Inn. There is no logical explanation for this move, since it was known by everyone on staff, how volatile this situation would be at the meeting that very night about the CDM nightclub. And of course the 90 days became 245 days before the planning commission even took up the issue. There is no explanation offered for R 15-150 this five-month delay. But this unexplained lapse in time gave a sense of semi permanence to the new much louder music, an attitude that reveals itself in some justification by commissioners during the meeting on June 20, 2002. The minutes of this meeting show a convoluted rationale for punting the decision to licensing/finance, claiming lack of jurisdiction. The staff had recommended that a new entertainment and/or use permit be applied for and voted on "because allowing amplified band music with drums would be a substantial change to the business." The staff was right, and quoted Section 20.82.060, which states that a substantial change in operation of a business requires a new use permit. The assistant city attorney agreed. But the commission found a way to disagree and punt the decision to licensing. The vote was 4 to 3, with the dissenting voices pointing out that this was more than just a licensing issue since they would essentially be changing a restaurant into a nightclub, and that of course it should be a commission vote, followed by a city council vote. One of the commissioners on the majority said in effect, "Who cares if they get drums ... we have noise ordinances," apparently not remembering or valuing the concerns at the meeting nine months earlier, or appreciating why the chamber was crowded with people ready to tell them the ordinances weren't working. Furthermore, the Village Inn was acknowledged by staff and commissioners alike — not even to be in conformance with the permit it they did have. This fact makes their eventual vote even more unexplainable. The chamber was crowded with neighbors waiting to make their public comments because of the annoyance factor. The Chair made a motion that since these people were already there, and because this might eventually go to the council, they should be allowed to speak so the council would have a starting basis for discussion. He was voted down, and we the people were forever denied our chance to address the issue and protect ourselves. Shame on them for that vote! Likewise, the council never got to address the issue. So just like that, against the advice of the assistant city attorney and the planning staff, and arguably in violation of Section 20.82.060, the city allowed a restaurant to behave like a nightclub and we the people were denied any say in the matter and told to go home without speaking. We do not accept this as status quo. The Marine Ave. neighbors dealt with the new situation because those owners placed the band in the back corner near the alley and as far away from windows and our houses as possible. When the nightclub atmosphere did lead to too much noise at closing time in 2009, the neighbors asked the planning commission to close at midnight instead of 2a.m. Council member Scott Peotter was a member of that commission and may remember that particular meeting. Those owners were cooperative in this effort, and the neighbors and owners were friendly, even sitting together after the commission vote, myself included. When the bandstand was moved to our side of the building, the owners protected the Marine Ave. residents with a floor to ceiling sound barrier behind the stage, and faced the speakers away from the houses. That, along with the carpet and large booths worked to contain the noise, and we had mutual respect. I 15-151 That all changed with these current owners who stripped the place bare, including the sound barrier, and violated every rule of common decency and multiple ordinances laid down by you, the city, which you then declined to enforce. This resulted in four years of torment for my family — Four years of stress that we can never get back. To know what it feels like think of it this way. Have you ever pulled up to a stoplight and clearly heard and somewhat felt the bass music from the car next to you, even if both cars have their windows closed? If you got out of your car, the music would be no louder than the street noise, and certainly not annoying. But in your car, with your windows closed, you can feel the bass. That's how it is in our houses, we hear mostly the bass and often the other instruments and voices too, along with the customers' screaming. At the stoplight it's over in a minute. In our houses it goes on for hours and drives you crazy. Or think of it another way — just to illustrate the absurd by being absurd. You are in your office at city hall trying to concentrate on work. A colleague is sitting nearby promising to be quiet. But every second like clockwork that person says "Hmmm." Every single second for hours! You ask that person to stop, but they ignore you. As we did with the Village Inn, every person in the building signs a petition asking this person to give you a break. Nothing changes. So you call code enforcement. They show up with a decibel meter and tell you that the sound you hear from this person is no louder than many ambient sounds around the office, so there is "no violation of sound ordinances." You are astounded. This "Hmmm" sound is inescapable and unrelenting. Sometimes it gets even louder than when code enforcement was there. Every single second for hours at a time, 60 times a minute, 3,600 times an hour, for hours at a time. Hmmm, Bmmm, Hmmm! Bmmm! City Hall knowingly ignores your problem. So you call the police. They come to your office and sympathize with your problem, but can't help you because as they did with the homeowners here and in CDM, they don't comprehend what hour after hour of this noise can do to your peace of mind. It's not the volume of the bass that's so annoying. It's the unrelenting incessant nature of it. Even when the volume is low, there is no escape from the "feel" of it. Therein lies the tormenting aspect of something inside your home that you cannot escape. No decibel reading can mitigate this angst. Of course in our case there is a lot more. There are additional known multiple violations of their use permit, violations of the building code, and violations of six sections of their entertainment permit. You (the city) have known about the violations of their entertainment permit for four years now, and have done nothing to help us. Even after ordering them to correct the violation of their entertainment permit and other use permits, you have allowed them to continue these violations for another complete year and a half at our expense. You can never give us back those hundreds of hours of 7 15-152 stress. Even if you could press a button right now and make all the noise disappear today, could you give us back the four years you have allowed my family to be tormented? It's downright unconscionable what you have allowed them to do to my family. Just ask our children. That's why we write to you again, to urge you not to further advocate additional harm as they seek to expand in our direction. Is it not obvious to all of you by now what their business model is? They want their music performers to be seen and heard from outside the building — the neighbors be damned. That's why they refuse to deploy the sound absorbing curtains behind the performers, which would have helped immensely. In addition, they have always had corrugated blinds installed on every window, but use them only to block the sun in the morning. These are also sound absorbing, but they refuse to use them when the bands are playing, even though they would have helped. This business model of projecting the band music outside to the sidewalk was made clear when one of the planning commissioners suggested on Dec. 3, 2015 that the stage be put back in it's original corner location where it would cause the least disturbance outside, and reach the most customers inside. This suggestion was quickly and emphatically rejected by the owner. That answer should have been an eye opener for each commissioner. Back when I bought my house the Village Inn was the flagship restaurant on Balboa Island. It had white tablecloths, a quiet piano bar, and a romantic atmosphere. Now it's a saloon/sports bar by day and behaves like a virtual nightclub at night. For example, the school bus drops kids off on there at 2pm and 3:30pm in the afternoon. We were told by the bus driver that one of the parents of the younger 2pm kids called the school transportation department and requested that the drop off location be changed because there were always Village Inn drinkers sitting or standing, and smoking at the bus stop. The request never got any traction, but it tells us something about the atmosphere there. No other restaurant on our Island has such a saloon atmosphere, which is evident even out on the sidewalk. This is the last place we want outdoor dining. Here's how you know the difference between a restaurant and a saloon/nightclub. With a nightclub, the size of the crowd is determined by which band is playing and how loud they are. When it's a restaurant, you don't have people puking in the alley behind your house. With a restaurant you don't regularly hear screaming from inside your house and even across the street. With a restaurant, you don't have neighbors as far as South Bay Front complaining about people urinating in the street at closing time. With a restaurant you don't have the band taking a break right in front of your house, smoking weed. You don't have another band partying during breaks while sitting in a car in front of your house and leaving the beer bottles on your patio. You don't have people screaming as they walk to their cars the length of our street at closing time. You don't have beer bottles left on the bike rack at closing time, or on the patios of the houses on our block. 8 15-153 In 38 years I've seen 5 owners of the Village Inn and there has never been anything like what these owners have done to the neighborhood. And the city has acted as an enabler of this horrible behavior. What the city has done and allowed to be done to my family is reprehensible. Remember, before these current owners did what they did to their building, the music was contained inside the building, and if it did escape it went out the front doors when briefly opened -- to the commercial street on Park Ave. And knowing what the city has already done to us, your planning staff is still acting as an advocate for actions that will harm us even further. We are urging you not to continue recommending additional concessions that would further damage our peace and quiet, and quality of life. Another example -- the city was fully aware of the fact that the owners were using the residential yard next to their business for commercial purposes for three years and did nothing to stop them. They used the residence -- both upstairs and down for restaurant purposes, disturbing the immediate neighbors on a daily and nightly basis. They used the front yard as a smoke break area for employees, who nightly ate dinner there right under my kitchen window, and left entire plates of food out all night, giving us our first roach problem in my thirty- seven years here. They even left open trash containers overflowing with uncovered food right there in the front yard! A front yard mind you, on Balboa Island. Some photos show the exact same exposed food trash piled high over the top of two open trashcans for weeks. The owners were fully aware of all this as they walked through the yard passing right by this squalor hundreds of times. These are not people to whom you should grant outdoor dining privileges at our expense this close to our homes. Another example — code enforcement was informed that they used the residential yard to sell beer and liquor to the public, even putting up a sign on the front gate that read, "Must be 21 to enter," and collecting cash out on the sidewalk on parade day, even falsely using the excuse that it was a BIIA function. Nonsense! They were expressly prohibited from doing that by section 22 of their use permit issued on March 19, 2009. Code enforcement was twice told about this violation, and twice there was no consequence, even though Matt Cosylion assured me on the phone after the first time that it would not be permitted a second time. But these owners do as they please, and you at the city enable them with no enforcement and no consequence. Our family was twice driven off our own front patio by drunk Village Inn customers sitting on our wall. Twice! We had to cancel our yearly guests on both occasions . And yet like so many other violations such as this, when the commissioners asked staff to list violations at the meeting on Dec.3, 2015, and again in 2016, these and many other violations were not mentioned. Why not? 9 15-154 Why is it that there seems to be one set of rules for these owners, and another set of rules for us regular folks? What do you think would happen if you or I tried this on our front lawn or patio? The day after the first of such violations I saw owner Dan Miller outside and told him that his customers had driven my family off our patio, and although we didn't call the police or code enforcement, I respectfully said that this should be a one- time occurrence. Instead of thanking me, he barked at me that, "I can have an event there any time I want." That's when I called code enforcement — to no avail as it turned out. Code enforcement had known what they did to their yard back in 2012. The city website describes what they did to the lawn, but did anyone from code enforcement ever take a look at the place? The squalor they deliberately stuck us with has been well documented, not by the city, but by the neighbors. These owners deliberately did this to their neighbors and to the reputation of the Island and the city. That once beautiful yard was the first residence that visitors and tourists would see on their walk from the shops to the bay and ferry. It always brought a lot of nice comments from tourists, which we heard from my front patio. The turning of that yard into a place of squalor was not an accident or a property in transition. The owners dug up the lawn, uprooting hundreds of tree roots, to lay down brick for illegal outdoor dining. When several neighbors told them they couldn't do that because it was residential property, they walked away and left it just like that, a pile of dirt, broken tree roots and all. From that moment on they deliberately let everything else go completely for three years. This spiteful sequence did not did not go unnoticed by everyone on our block. They then used the yard as a dumping ground for broken restaurant equipment and trash piled five feet high. The grass on the other side became weeds and grew three feet high. This was not an oversight or an accident. It was a deliberate act. For almost three years we had to look at that mess, as did tens of thousands of visitors to our special Island, besmirching the city's reputation and embarrassing our neighborhood. See photos — many photos. We told code enforcement what they had done to the yard, and yet for three more years, no one from code enforcement did a single thing about it. It was embarrassing for my family to even invite friends over with that eye sore right next door. Everyone on our block was appalled. The gardener who once took care of that property and still did some others on the block noticed the squalor and went over there and mowed the other side of the lawn and dragged out several huge bags of debris. He said he couldn't stand to see such a once beautiful place looking like that. It didn't last. The owners dumped even more junk on it and within a month the weeds were back three feet high and it was squalid again. Even today, every time I open my front door the first thing I see facing me is a large commercial sign directly facing the residential yard and my house. It's 10 15-155 been there for four years. Your municipal code says this is an illegal window sign. I emailed code enforcement for a ruling on this sign, as it appears to be in violation of more than one code. I got no response, but many months later they put a skinny potted tree in front of the sign, which has only now become full enough to partially block the sign. Unknown if this was in response to my question, but in either case it's too little too late. We didn't even get the courtesy of a reply from the city, and this sign has been there for four years facing residences. Last summer they placed an illegal A -frame sign for their Happy Hour on the sidewalk, which the municipal code says is a violation. The sign sometimes created a bottleneck for pedestrians and even blocked the handicapped ramp, which is another violation. See photos. I emailed code enforcement for a ruling on this sign and these violations, and again got no response whatsoever, so the sign stayed. It stayed there daily for the whole summer, and was often left out overnight — another violation. This is another case of one set of rules for the Village Inn, and another for us regular folks. Back in November our neighborhood delegation met with Ms. Wisneski at city hall. At one point we asked the following: We've just offered you two dozen reasons why your plan to approve giving away the city's bike rack and the unprecedented zoning change is a bad idea. So in the interest of fairness, and to better understand your thinking, could you offer us any reasons why you think it's a good idea, and why you plan to recommend it to the commission? Her answer was astonishing. She said, "No, but that's the direction the city wants to go in — more outdoor dining." But you are not "the city." The people are the city. And we the people don't want you to take away the people's bike rack to give the space to private business, while the bootleg structures still stand, in a sweetheart deal that smacks of cronyism, and would surely harm us even further. And remember, these owners actually put up signs telling bike riders that they were "on camera" and that the bike rack was for their customers only. These are the people for whom you recommended favored treatment at our expense? Can you give all of us back the hundreds of hours we've spent writing you and code enforcement, and preparing to speak in public just to protect ourselves from that which the city should never have allowed in the first place? Can you give us back the last year? Can you give us back the last four years? We're trying to give the city every opportunity to make amends here -- by not harming us any further, which an additional expansion would surely do. As many times as the city let us down, we were able to deal with what the city has dealt us until now — until these new owners. Now, all this malfeasance, all these mistakes and oversights made by the city have lowered our quality of life and reduced our property values. 11 15-156 You have forced us to do a lot of our own homework to discover your planning commission's rules and conditions — rules that you already knew about, but did not enforce. For example, on March 19, 2009 the planning commission laid down specific rules that the Village Inn must follow as condition for approval of a requested use permit. See page 43 of those minutes. The following is a list of those conditions that the Village Inn has violated, with full knowledge of the city, and with no enforcement and no consequence. Section 17. Deliveries shall be prohibited between the hours of 10pm and 8am. This is routinely violated every week with deliveries between 4 and 6 in the morning, making incredible noise and waking us up. Many of these deliveries are made when it's still completely dark. We put up with it for four years because we didn't know it was illegal. But the city knew, and the owners knew. Most nights their loud air conditioners run all night. We can hear them roar all night in our back bedroom on the other side of the house. And for good measure, we get awakened while it's still dark before 5 and 6 a.m. deliveries at least twice a week. These large semi -trailer Sysco truck deliveries can take an hour to complete, starting with the backup beep that's impossible to sleep through. The noise is very loud as they slap carton after carton onto pallets as it echoes through the alley. The sound of the truck's steel ramp being lowered and later slammed back into place is way over the top in volume. No one could sleep through that! And on top of that, the truck's engine runs for the entire hour. And there is no going back to sleep after that kind of racket. Again, last Friday, and before 6 a.m. we were awakened by another delivery. And that same night, the band music was in our living room and we did what we usually do, retreat to the back of our house to avoid it. And again that same night, they let the air conditioners roar all night long — another violation. That's as many weeks in a row as far back as I can remember. There is never any enforcement or consequence. Now even in October we have had deliveries wake us at 4:00 a.m. Repeat — 4 a.m. Recent update: Again for one hour on May 27 starting at 5:40 a.m. Again: on Memorial Day at 6 a.m. Again: The very next day at 6 a.m., and on and on twice a week at minimum for years. And now we're in August and nothing has changed. Their August 19 delivery started at 4:50 a.m. Repeat — 4:50a.m. Outrageous! There was no going back to sleep after a full hour of that. These people do whatever they want. Section 22. No alcoholic beverages shall be consumed on any property adjacent to licensed premises under the control of the licensee. That means 123 Marine specifically. They violated that restriction with impunity from code enforcement. We told you (code enforcement) about it and you (the city) did nothing. These owners do whatever they want, and you let it happen and enable it to continue at our expense. We are human beings who deserve better than that from our city government. 12 15-157 This violation was committed with full knowledge of code enforcement and allowed to be repeated. Once again — one set of rules for these people, and another set of rules for the rest of us. Section 16. The exterior of the business shall be maintained free of litter and graffiti at all times. The owner shall provide for daily removal of trash, litter debris from the premises and on all abutting sidewalks within 20 feet of the premises. We've all seen the photos, and we're not talking about isolated incidents. More photos available, right up to the present! Section 18. Storage outside of the building in the front or at the rear of the property shall be prohibited, with the exception of the required trash container enclosure. Blatantly and grossly violated with broken restaurant equipment and furniture, etc., multiple photos spanning three years, none of it accidental. Section 23. No Happy Hour type of reduced alcoholic beverage promotion shall be allowed except when served in conjunction with food ordered for the full service menu. See photos of Happy Hour ads on illegal A -frame signs blocking sidewalk. No enforcement of sign ordinances, even after code enforcement was notified. Sign stayed all summer. Remember, these people do whatever they want. Section 27. No dancing on the premises. Routinely violated with impunity — multiple employees walking around and among the dancers and turning a blind eye. Patrons also routinely hop up on the illegally enlarged stage and dance with the band. This is when we get the screaming. Outrageous! See videos spanning four years and as recently as last week. And finally, their entertainment permit is contingent upon compliance with all conditions of their use permit as specifically stated in section 3 of that entertainment permit. As you can see they are continually and blatantly in violation of sections 16, 17, 18, 22, 23,and 27 of their use permit. As I read municipal code 5.28.060 section C, each one of these violations could or should be cause for the city manager to revoke their entertainment permit. But this is not just about their use permit or their entertainment permit, it's about our plea to you to harm us no further. We warned code enforcement back in 2012 what kind of new owners they were dealing with here, based on what they had already done at the outset. Code enforcement had all the heads up they should have needed to prevent exactly what we predicted and what has happened to our neighborhood. Just ask any of the neighbors on our street. As we discover the litany of tales regarding what code enforcement has chosen to enforce against the average citizen, it amazes us how impotent they seem to be when it comes to the Village Inn. The rules that the rest of us follow -- just don't seem to apply to these people. That's the city's fault as much as theirs. 13 15-158 You have allowed all this to occur by creating a separate set of rules for these owners and another for us regular folks. In 2012 when they stripped the place bare and illegally knocked down the dividing wall that acted as the back of the stage and the sound buffer between the speakers and our houses, your own building inspector signed off on it. Without that wall and the sound absorbing carpet and large booths (that they dumped in the front yard next to my house for months) the noise was unbearable. We told code enforcement and nothing happened. After three years of torment for my family, I finally resorted to the freedom of information act and discovered that the removal of that sound barrier and moving the stage and speakers closer to our houses was a clear violation of their entertainment permit. Only then, and only after reporting this discovery to Cassi Palmer from code enforcement was any action taken. But even after that, they ignored your letter of correction, and here we are a almost two full years later with band music still in my house. This is completely unacceptable! We residents deserve a lot better than this. Can you give us back this past year that you allowed this to continue, even after your letter of correction, a fact that actually made our stress and frustration worse? And then add the past four years that you have known about this and done nothing. My family begged and pleaded with them for three years to contain their band music and keep it out of our houses. You ordered them to do the same, and a fourth year has come and gone without any enforcement from you. Can you imagine the stress and disappointment this has created for my family and our neighbors -- taxpayers you serve? They want something from you so they will tell you they are working on the noise problem that they themselves caused by illegally knocking down the sound barrier and moving their stage and speakers, and stripping their place bare. They should therefore get no credit if they now claim an attempted correction of those very violations, which they themselves caused. If they were now to say that they have gone to great lengths to fix their sound problem, would that not be all the proof needed that our complaints were justified? If it took a lot of money and effort to lower the noise escaping their building, and we can still hear it, does that not prove what we've been trying to tell you, albeit in vain? Back in 2012 when these owners illegally changed their building and allowed their band music to escape and penetrate our houses, we begged them to do something to correct the problem. Owner Charlie Kintsler phoned and chastised me for not having double panes in some of my windows, as if was my own fault that his sound was penetrating our home. I reminded him that most people here keep their windows open in warm 14 15-159 weather, and that it was his job to contain his band music at his location. He scoffed at this, blaming us for his sound being heard in our own house, telling me I wasn't doing my part in cooperating with them. He also told me that they were the first owners of the Village Inn to set up a line of communication for when the music was too loud. I reminded him that up until now we didn't need a line of communication — because the sound barrier and booths and carpet had kept the sound where it belonged, and not in our houses. He countered that by telling me that it was my own choice to buy a house next to a bar. I corrected him again, reminding him that he owned a restaurant, not a bar, and that my house was two - doors away, not next door. They asked to meet with us to discuss it. They told us that they consulted a "sound engineer" who told them that it would be impossible to contain the music inside their building. No sentence followed that amazing statement. That was it. We were speechless. They were telling us that we would have to live with this new reality. What was possible before they arrived (no noise inside our home) was not possible now — as if the laws of physics had changed. Owner Charlie Kinstler also told us to our faces that the band music heard in our house could be coming through the knotholes in our fence, which by the way is not even as high as our windows. My wife and I held our composure and kept a straight face because we were looking for real solutions. We suggested sound curtains to absorb some of the noise. They bought some curtains and texted us that we should pay for them. But they have refused to deploy the curtains behind the stage where it would have done the most good. At that same meeting, Charlie Kinstler told my wife and me that if the music was really too loud for us, he could always cut down the tree that shades both our properties and build a high block wall in front of our front door, which faces that direction. He knew how much that tree meant to us and everyone on our block. Based on what they had already done, we took these threats seriously. Shortly after that meeting, the other owner, Dan Miller came to our house and asked us if we would rather deal with him or with Mr. Kinstler? Some choice. He then convinced us not to call the police when the music got too loud, but to text him instead. Grasping at any solution by this point, we agreed. But as it turned out, it was a huge mistake on our part. We'd been snookered, and after two years of futile texting and trying in every way to give him the benefit of the doubt, it became obvious that we'd been duped. (See my wife's speech to the planning commission on Dec. 3, 2015) We can't count the number of times we complained to owner Dan Miller that the music was so loud it could be heard even in our back bedroom on the far side of our house and he would reply in no uncertain terms that he was "within code." That put us back on our heels because back then we didn't know the codes. Mr. Miller was lying about being within code, which we found out much later when finally we had to resort to the freedom of information act just to get a copy of his entertainment permit. Only then did we learn the extent of his dishonesty. 15 15-160 In your staff report for the commission meeting on Dec. 3, 2015, you and code enforcement, and the police department set certain conditions that should be met before approval. One of those conditions of approval is the requirement that alcohol sales shall not exceed food sales. That is not the case now. There had not even been an audit to determine what the true ratio is, and yet without that ratio being met, and without an audit, you recommended that the city approve the outdoor dining. And now this year, their ratio of food to alcohol ratio has gotten even worse. Has there been an audit? And you are still recommending a yes vote to the commission? Remember this was a police condition of approval — not a suggestion. And what would the city do if this ratio stayed the same a year after the outdoor dining has been constructed. Would you then force them to reverse the construction? I think not. Eight tons of concrete is difficult to remove. This is not good planning. The camel's nose would be under the tent, and you would be powerless to reverse it. This is not to say that we would accept outdoor dining at such a saloon even if they did get over the 50 percent mark. Their type of loud sports bar creates unacceptable noise — even during the day, and the proposed accordion doors are so wide that the wall would appear completely open as if there were no wall at all. The noise from the sports bar would hit our houses like a perfectly shaped giant 50 -foot megaphone. Our whole block is united in opposition to the proposed outdoor dining and the removal of the bike rack. You've seen what leaving even one window open can do to exacerbate the annoyance factor in the immediate neighborhood. You can imagine what the annoyance would be if you allowed floor to ceiling open doors with a sports bar as proposed. The annoyance factor of the yelling and screaming would make city noise ordinances seem useless and subject to ridicule. What would you do then? How would you defend the city's decision when that happens and there is a neighborhood uprising or lawsuit? You can't just tell a whole block of people that they can't be annoyed because the noise does not exceed your ordinances. That would not be accepted. The annoyance factor would trump everything. You would have a whole block of angry people to deal with. You would be stuck with your bad decision, and it would be too late to reverse the construction. And if you in the city are concerned about our reputation as a "green" city, the last thing you want -- is to be seen removing the peoples' bike rack to benefit a private business. We need more bike racks, not merely a replacement on a residential yard next to someone's home, and certainly not on the commercial two blocks of Marine Ave. where getting on and off a bike would not be safe. The safest place to get on and off a bike is right where the racks are now, with no passing traffic, no narrow space between moving cars, and parked cars, who often open their doors without looking. If the city is concerned about tourism, you in code enforcement should have thought about that back in 2012 when we told you what they were doing to the residential yard at 123 Marine. People come from all over the world to walk 16 15-161 around Balboa Island, and you allowed these owners to ruin the very first yard seen by tourists into something that looked like tobacco road. That's what these owners did to the Island, right on the street that the whole world visits. Where was code enforcement? See photos. You have robbed my family of so much of the happiness that we once enjoyed living in such a special place as Balboa Island, on what was once the best block here. Please don't advocate hurting us any further. That's the whole reason for writing to you. Our wonderful block of families is not an amusement park or a Monopoly Board to be played with and manipulated by the city for the financial gain of one chosen business favored above others. This is where we live. I'm raising my family here. We're human beings who deserve peace and quiet in our own homes. Lest anyone in city government feel sorry for these owners and feel a need to "figure out a way to help them" as one commissioner said on December 3, 2015, remember what you have already given them at our expense — two years of free stalling time, wherein they were able to ignore your order to correct the violations that still exist, allowing them to harm us further. They stalled you for six months before applying for an outdoor dining permit. When that was turned down three months later, they waited past another few meetings and asked the commission to table their request for mixed use. They then waited another two months before applying for a lot merger. Since that application, the Zoning Administrator held 15 meetings and we have no explanation for that delay. Stalling time was over. But these illegal structures were in the way of this business filing an application for an outdoor dining structure. So now after breaking so many rules, ignoring your order to correct, having been rejected by the planning commission and everyone on our block, and knowing that a lot merger would never fly, and having been given a full year and a half free pass to continue harming us, they have been given another gift that they could never have earned otherwise. On August 30, 2016 a director's determination classified these illegal uses and encroachment structures as legal nonconforming, along with an immediate application for an extension of the abatement period. This maneuver does not pass the smell test. This is a year and a half after the city had ordered this business to bring their structures up to code. Why was this not done at that time on March 30, 2015? Or better yet, why was this not done fifteen years ago when the city knew about these violations and actually signed off on them. And since it could take years to abate these bootleg structures, this amounts to a de facto variance of this property. So just like that, a city employee can wave a magic wand and help a rogue business ignore and defy your order of correction, 17 15-162 and apply for the special privilege of outdoor dining "separately," free of the connection to the building's illegalities or the city's malfeasance that permitted it in the first place. No one else in this city could get away with that one. Once again -- different rules for these owners and the rest of us! Furthermore, the extension said nothing about the illegal use of the residential garage for restaurant use. But they continue to use it illegally for commercial purposes, thus taking one more off street parking spot from us, and parking is like gold here on the Island. The garage was not part of the package that allows the illegal structures to stand. Until these owners came four years ago it was usable for parking cars. This would seem to increase the city's exposure to additional liability for the harm they have caused my family. This abatement extension of illegal use of such magnitude amounts to a de facto variance, which the city charter prohibits for use. And declaring these structures as "legal" non -conforming, when they were illegally constructed in the first place, right under the nose of the building inspector, and illegally allowed to stand by the building inspector himself, who signed off on them, amounts to a cover up of the original malfeasance. Do you think the average law abiding citizens could get away with that one? Once again we have one set of rules for this business, and another set of rules for us regular folks. We are giving you and the city every opportunity to make amends for all the damage you've done to my family and our neighborhood by not harming us any further by allowing further expansion in our direction. Back in November of last year, our neighborhood delegation met with you regarding our complaints about the Village Inn and the band noise that penetrates our homes. We asked why the city's order for them to correct the illegal deconstruction of their stage and sound barrier was still not corrected after seven months. Your answer was that it would make little sense to insist that they obey that order since if they prevailed in their quest for outdoor dining, that point would be moot. Absurd! First, their submitted plans for outdoor dining placed the stage and speakers in an even worse position, aiming the speakers directly at our houses. Second, and more important, the application for those plans were tabled and later withdrawn. When that happened you should have notified code enforcement and the city should have forced compliance. That did not happen and we now have endured an additional year and a half of them ignoring your order to correct, wherein you have done nothing to protect us from them. That makes a total of four years that the city has knowingly allowed them to harm my family inside our own home. Remember, the city signed off on this illegal deconstruction of the stage and sound barrier. 18 15-163 The rest of us regular folks obey the rules, but these people do whatever they want, and the city seems powerless to stop them. By the way, if the Village Inn were ever to succeed in actually eliminating their band music from penetrating our houses it would be proof positive that it was indeed possible all along, just as I had told them and you it was before they came here. And it would be proof that your neglect and inaction regarding our pleading with you for help for four years — was ignored to the point of collective malfeasance on the part of the city. And it would also be proof that they could have stopped the torment of my family at any time in the past four years, but chose not to do so until they wanted something from the city. Indictment complete! But as you can see, that has not happened. Because of the city's enabling, their nightclub band music still penetrates our home. See multiple videos spanning four years. And of course the ultimate nightmare for my family and our neighbors would be the construction of an outdoor dining platform, which if built would cause us even greater harm. That subject will be covered in another report. As part of their October 2016 application for outdoor dining, the city wanted to help them further by moving the city owned bike rack from the side of their building and giving them the city sidewalk space to expand their building for outdoor dining. And worst of all, the planning department advocated (yes advocated) a huge, even bigger 420 square foot bike rack coral in the residential yard next to my house. That's bigger than a two -car garage! Right next door to my home! Late night drunks right outside my front door — on a residential lot! Sounds like the perfect spot for smoke breaks and drunk conversation in earshot of my children. Your planning staff acted as an advocate for this, even trying to sell it to the neighbors. This was outrageous! Our neighborhood spent a lot of time, stress and money preparing to fight that outrageous application. After spending time and money for an attorney, at the last minute the planning withdrew that proposal because to and behold the public works department did say they were able to find some alternate locations after all. And as part of the deal, the applicant offered to give the city a $12,000 check to cover the cost. None of this passes the smell test. The proposed bike rack locations are not in a safe area in which to mount and dismount in traffic. That's another report. Haven't you allowed enough to be done to us already? We are urging you not to damage us any more than you have. Before hurting my family even further, think of my children, check your right vs. wrong compass, and check with the city attorney, and then decide if it's worth it to the city to continue acting as an 19 15-164 advocate for additional damage to our neighborhood. My neighbors and I implore you to consider our feelings, our children, our property values, and our quality of life before continuing as an advocate for that which will damage us further. The current bike rack next to the village Inn is city property, as is the sidewalk under it. That's the people's bike rack, and we the people don't want it taken away from us and the space given to a private business in what would appear to be reverse, or should I say, perverse eminent domain in a sweetheart deal that does not pass the smell test. And finally, that bike rack is the safest location on the Island to get on and off a bike. This bike rack is located at the end of a one-way street, which ends with a stop sign and an indentation in the roadway. This road indentation allows riders to get on and off their bikes out of the way of moving cars. Unfortunately, this is not the case in the proposed locations. You can't ride a bike smack into a rack. You have to dismount first. So you will have riders dismounting in traffic as they approach the racks. If they are in a group, they'll be forced to do so one at a time in traffic. Right now families can dismount safely as a group. If you take away this perfect location, these riders will be forced onto the two way traffic of those two blocks, which are just too narrow to handle that increase, especially with little kids. And of course, there are the car doors being opened without warning. That's why you never see little kids on the street on those two blocks. So you will wind up with bike riders seeking safety by riding on the sidewalk just to get to the new corals. If God forbid, some little kid gets smacked in the two-way traffic, we won't be able to fix the situation by going back to the current location. It will have been obliterated by a permanent structure atop eight tons of concrete. Then what would you do? And your names would be on it. Not only are you going to get complaints from bike riders, but drivers are going to start grousing as well. Riders will be forced into the two-way traffic that until now, many avoid. And even if these new corals did work for some riders, you would still need the current location for the less skilled riders and families with children and those pulling bike trailers. For families, the current location is their safe harbor. It needs to stay put. 20 15-165