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HomeMy WebLinkAbout3.0_Port Restaurant & Bar PA2009-080CITY OF NEWPORT BEACH PLANNING COMMISSION STAFF REPORT August 20, 2009 Agenda Item 3 SUBJECT: Port Restaurant & Bar 440 Heliotrope Avenue - PA2009 -080 • Amendment to Use Permit No. 1566 • Off -Site Parking Agreement No. OP2009 -003 APPLICANT: Ali H. Zadeh PLANNER: Jaime Murillo, Associate Planner (949) 644 -3209, imurillo(&newportbeachca.00v PROJECT SUMMARY An amendment to Use Permit No. 1566 to allow the following changes in the operational characteristics of the existing restaurant: 1) Expand the existing hours of operation (5:30 p.m. to 12:00 a.m.) by extending the closing time to 1:00 a.m. daily, and providing lunch service on weekends; and 2) Introduction of live entertainment and dancing. The application also includes an off -site parking agreement to allow the continued use of 40 off -site parking spaces on property located at 2865 East Coast Highway for the requested hours of operation. 1) Conduct a public hearing; and 2) Adopt resolution denying an amendment to Use Permit No. 1566 and denying Off - Site Parking Agreement No. OP 2009 -003. (Attachment No. PC 1) 0 W • Port Restaurant & Bar August 20, 2009 Page 2 F:\USERS%PLN %SharedlPA'sXPAs - 2009XPA2009- WOXPA2009 -080 PC rpt.docx VICINITY MAP ' Former .• M c,� ., Off -Site I Parking Lot v > `♦♦ V ..'tab JII.' �•\ j� Fq �� �w /:_ N% + ?�Y rd "y o Proposed Off -Site ya? Parking Lot ♦�z� -: Subject Restaurant lll... •i °It f 'r GENERAL PLAN ZONING RT 4 0• � ° % k � a ' o• �' �$ \ a \ + ?r 0o- Y � v .y ZONING CURRENT USE LOCATION GENERAL PLAN ON -SITE Corridor Commercial RSC Restaurant NORTH CC Two - Family Residential Proposed off -site parking lot and R -2 offices SOUTH Cc RSC Offices EAST CC RSC Port Theater and commercial uses WEST I Two -Unit Residential R R -2 I Residential F:\USERS%PLN %SharedlPA'sXPAs - 2009XPA2009- WOXPA2009 -080 PC rpt.docx Port Restaurant & Bar August 20, 2009 Page 3 INTRODUCTION Project Setting The subject restaurant is located on the eastern side of Heliotrope Avenue, approximately 150 feet south of East Coast Highway in Corona del Mar. To the north, across Heliotrope Avenue, is a three -story office building and related off - street parking; to the east are the Port Theater, a retail boutique, hair salon, and one residential apartment; to the south is a two -story office building; and to the west, across Heliotrope Avenue, are two -unit dwellings. The off -site parking lot proposed for use by the applicant is located directly across Heliotrope Avenue at the intersection of Second Avenue and serves as the off - street parking for the three -story commercial building. Background On November 18, 1971, the Planning Commission originally approved Use Permit No. 1566 authorizing the sale of alcoholic beverages in conjunction with the existing restaurant. On March 17, 1977, the Planning Commission approved an amendment to the Use Permit authorizing an expansion of the restaurant and the use of 40 off -site parking spaces to satisfy the restaurant's parking requirements. In 2003, staff approved a change in the location of the off -site parking from the original location at 504 -510 Goldenrod Avenue to the current location at 2865 East Coast Highway. On December 20, 2003, an accessory outdoor dining permit was approved authorizing the addition of an outdoor patio seating area in front of the resturant facing Heliotrope Avenue. On October 27, 2008, the Code and Water Quality Enforcement Department sent the applicant a notice of violation advising him of various violations of Use Permit No. 1566, including providing live entertainment and operating after the 12:00 a.m. closing time set by the conditions of approval. A detailed project background is provided as Attachment No. PC 2. F:IUSERS%PLN\Shared\PA's\PAs - 20091PA2009- 0801PA2009 -080 PC rpt.doex 5 Port Restaurant & Bar August 20, 2009 Page 4 Proiect Description The applicant is requesting an amendment to Use Permit No. 1566 to allow the following changes in the operational characteristics of the existing restaurant: 1) Change in Hours Of Operation The current permitted hours of operation for the restaurant are between 5:30 p.m. and 12:00 a.m., daily. Food service currently terminates at 11:00 p.m. to accommodate the 12:00 a.m. closing time. The applicant is requesting to extend the closing time of the restaurant to 1:00 a.m. to accommodate later food service for guests and to allow guests additional time to exit the premises so they are not rushed out at once. The applicant is also requesting lunch service on weekend afternoons. The proposed hours of operation would be from 11:00 a.m. to 1:00 a.m. on Saturdays and Sundays, and 5:30 p.m. to 1:00 a.m. Mondays through Fridays. 2) Live Entertainment and Dancing The applicant proposes to provide live entertainment and dancing. As illustrated on the project plans (Attachment No. PC 3), when live entertainment and dancing are provided, Dining Room B will be reconfigured to accommodate a stage and dance floor. The type of live entertainment may vary from live bands to a Disc Jockey (DJ). The applicant proposes to install acoustical tiles to the interior walls and ceilings of Dining Room B to help attenuate the additional noise. To provide further noise attenuation, the applicant is proposing to add a full height door to the entry archway at the front outdoor patio. 3) Restaurant Remodel The applicant proposes to remodel the first floor of the restaurant to improve internal circulation and reduce overcrowding in the bar area. The existing floor plan compartmentalizes the restaurant into four separate areas (Dining Rooms, Outdoor Atrium, Bar, and Outdoor Patio Area). This compartmentalization of the restaurant has led to overcrowding later in the evening, when patron occupancy concentrates in the bar area. The applicant proposes opening up the floor plan by removing walls, windows, and doors separating the outdoor atrium from the interior dining rooms and bar area and replacing them with new bi- folding doors. This will allow the flexibility of using the premises as one large space instead of three distinct areas. In addition, the applicant proposes to provide additional floor area for the bar and improve access to emergency exits by decreasing the size of a men's restroom located adjacent to the bar area. FAUSERS \PLMShared \PA's \PAs - 2009TA2009- 0801PA2009 -080 PC rpt.doex Port Restaurant & Bar August 20, 2009 Page 5 The total net public area' of the restaurant after the proposed floor plan changes will be 1,355 square feet. 4) Off -Site Parking As discussed in the Background section of this report, the restaurant currently utilizes 40 parking spaces within the privately -owned parking lot located directly across the street at 2865 East Coast Highway. An existing off - street parking agreement allows the restaurant to satisfy its off - street parking requirements on that lot between the hours of 5:30 p.m. and 12:00 a.m. only. The applicant is requesting the approval of a new agreement to utilize the parking spaces during the proposed extended hours of operation. 5) Security To address noise generated from patrons leaving the restaurant in late evening, the applicant proposes to provide security attendants in the off -site parking lot on Thursday, Friday, and Saturday evenings. The applicant asserts that this will ensure that patrons leave the premises quietly, do not loiter in the parking lot, and do not litter. Analysis Noise The applicant hired JEC, an electrical contractor specializing in audio engineering, to prepare a noise study to determine whether live entertainment can be provided within the restaurant in compliance with the City's Community Noise Control Ordinance. Per Section 10.26.025 (Exterior Noise Standards) of the Municipal Code (Attachment No. PC 8), the allowable exterior noise level for residential uses is 55 dBA between the hours of 7:00 a.m. to 10:00 p.m. After 10:00 p.m., the allowable noise level for residential uses is reduced to 50 dBA. In the event the ambient noise level exceeds the maximum permitted noise standard, then the ambient shall be established as the maximum noise standard. Sound tests were performed on June 10, 2009, using a band and a disc - jockey (DJ). Measurements were taken with the band performing within Dining Room B and with a 'Net Public Area (NPA): The Zoning Code defines net public area as the total area used to serve customers, including, but not limited to, customer sales and display areas, customer seating areas, service counters, and service queue and waiting areas, but excluding restrooms and offices, kitchens, storage and utility areas, and similar areas used by the employees of the establishment. F:IUSERSIPLN\ Sharedl PA's\PAs- 20091PA2009- 0801PA2009 -080 PCrpt.docx I Port Restaurant & Bar August 20, 2009 Page 6 DJ playing music at levels of 90 -105 decibels (dBA) within the bar area. Sound measurements were taken from the property lines of the four nearest residences, with the front doors and windows of the restaurant both closed and open; in both scenarios, the doors and windows separating the outdoor atrium from the dining room and bar area were left open. The JEC noise study (Attachment No. PC 9) concludes that noise levels observed for both the live band and recorded DJ music did not exceed the allowable exterior noise levels for the adjacent residential uses. Newport Beach Police Detectives Dave Stark and Bryan Moore were on -site during the sound tests to observe the testing and to conduct additional sound measurements. Detectives Stark and Moore used a handheld sound level meter to take several measurements in and around the business area. Their measurements were similar to those of the JEC tests and found that the sound measurements did not exceed the maximum allowable exterior noise levels of the City's Community Noise Control Ordinance. However, the sound tests do not account for noise sources that can be perceived as annoying by adjacent residences, such as noise from patrons inside the restaurant (i.e. talking and laughing), patrons leaving the restaurant (i.e. car alarms and doors slamming), or patrons loitering in the parking lot. Newport Beach Police Department Concerns The Newport Beach Police Department provided staff with a memorandum expressing significant concerns with the applicant's request (Attachment No. PC 10). The Police Department is concerned that the proposed live entertainment, dancing, and extended hours of operation will transform the restaurant into a nightclub. The memorandum states that the Police Department has already spent a considerable amount of time addressing complaints with regard to noise and activity at the location, and due to the restaurant's close proximity to nearby residents, they believe that the proposed changes will only contribute to an increase in the noise and police activity. In the past year, the Police Department has received approximately 20 calls for service for loud music. They also express concerns that in addition to noise generated from the live entertainment, extending the evening hours of operation will result in increased noise complaints due to increased vehicular traffic in the area, patrons talking outside while waiting for cabs or walking to their vehicles, and other disturbances associated with alcoholic beverage consumption. The Police Department memorandum also includes an outline of all Police Department actions related to the property since they were first made aware that the restaurant was operating in violation of their Use Permit. Violations have included providing live entertainment, exceeding the permitted hours of operation, blocking aisles and overcrowding. FAUSERS\PLN\Shared\PA's \PAs - 2009 \PA2009 - 080 \PA2009 -080 PC rpt.docx Port Restaurant & Bar August 20, 2009 Page 7 Code and Water Quality Enforcement Department Concerns The Code and Water Quality Enforcement Department also provided staff with a memorandum expressing concerns similar to those of the Police Department (Attachment No. PC 11). The memorandum states that the addition of live entertainment and dancing transforms the restaurant into a nightclub. Due to the close proximity to a residential neighborhood, this would impact the residential character of the neighborhood and result in increased complaints. Code Enforcement has already received numerous complaints regarding loud noise generated from the restaurant and from patrons walking to their vehicles or loitering near the establishment. The memorandum also includes an outline of the various violations and Code Enforcement actions that have occurred since the initial notice of violation was sent in October of 2008. Parking Requirements Pursuant to Section 20.66.070 of the Zoning Code, off - street parking requirements for restaurants may range between ratios of 1 space per 30 to 1 space per 50 square feet of net public area (NPA) depending on the physical design, operational characteristics, and location of the restaurant. Use Permit No. 1566 (amended) established a parking ratio of 1 space per 40 square feet of NPA, although no specific considerations were cited. Based on the NPA of 1,600 square feet proposed at the time, a total of 40 parking spaces were required. Typically, with the introduction of live entertainment and dancing, staff recommends a parking ratio of 1 space per 30 square feet of NPA due to an anticipated increase in occupancy; however, based on the following considerations, staff believes a parking ratio of 1 space per 35 square feet of NPA is appropriate for the following reasons: • The floor area dedicated to dancing and live entertainment is 216 square feet, or 16- percent of the total NPA; • The remaining table and seating configuration will remain unchanged when live entertainment and dancing occurs; • The location of the restaurant within the Corona del Mar village affords the opportunity for significant walk -in trade; • A recent parking study (December 18, 2008) of the area performed for the City by Walker Parking Consultants indicated that on- street parking within the vicinity of the restaurant is not significantly impacted throughout the day. Field surveys were performed on May 15, 2008 and May 17, 2008, three times each day in order to observe the typical morning, afternoon and evening hours for peak parking demand. The study showed that parking along Heliotrope Avenue ranged from <50 to 69- FAUSERS \PLN \Shared \PA's \PAs - 2009 \PA2009 - 080 \PA2009 -080 PC rpt.docx Port Restaurant & Bar August 20, 2009 Page 8 percent occupied during the weekday peak hour of 7:00 p.m., and from <50 to 79- percent occupied during the weekend peak hour of 10:00 a.m. Since the Use Permit was last amended in 1977, the restaurant has undergone a number of remodels with each change in ownership. With the proposed remodel, the NPA will be reduced to 1,355 square feet, 245 square feet less than what was approved with the 1977 amendment. Using the recommended parking ratio of 1 space per 35 square feet, a total of 39 parking spaces would be required (1355/35= 38.7). Off- -Site Parking Pursuant to Section 20.66.080 of the Zoning Code, off - street parking on a separate lot from the project site may be approved if the Planning Commission can make the three required findings below. Staff believes facts exist in support of the first two findings; however, staff does not believe sufficient facts exist in support of the third finding: 1. Finding: Such lot is so located as to be useful in connection with the proposed use or uses on the site or sites. Facts in Support of Finding: The subject off -site parking lot is located at 2865 East Coast Highway, directly across the street from the subject restaurant facility. The parking lot consists of a total of 40 parking spaces, which is sufficient to accommodate the recommended parking requirement of 39 parking spaces. The off -site parking lot is located a walking distance of approximately 50 feet away from the subject facility. Therefore, staff believes the parking lot location can be found useful in connection with the proposed use. 2. Finding: Parking on such lot will not create undue traffic hazards in the surrounding area. Facts in Support of Finding: Since at least 2003, the existing restaurant has used the subject off -site parking lot to satisfy its parking requirements and has not created an undue traffic hazard in the surrounding area to date. Heliotrope Avenue is not a heavily traveled street and vehicular traffic is not anticipated to create a hazard for patrons crossing the street. Accessibility and path of travel from the parking lot to the restaurant were previously reviewed and approved by the City in conjunction with the most recent tenant improvement plans for Svelte (prior name of restaurant) in 2003. Therefore, staff does not believe the use of the parking lot will create an undue traffic hazard in the surrounding area. 3. Finding: Parking is permanently available, marked, and maintained for the use it is intended to serve. Facts Not in Support of Finding: The applicant has submitted a one -year lease for the use of 40 parking spaces, which expires on June 30, 2010, after which F: \USERS \PLN \Shared \PA's \PAS - 2009 \PA2009 -0801PA2009 -080 PC rpt.docx to Port Restaurant & Bar August 20, 2009 Page 9 time the lease is set at a month -to -month tenancy (Attachment No. PC 12 ). The lease does not specifically state the hours for which the parking spaces are granted; however, the applicant states, and the property manager has confirmed, that he has rights to the parking spaces after 5:30 p.m. daily, with the exception of weekends when he has rights all day. It is important to note that a majority of the 20,300- square -foot commercial building at 2865 East Coast Highway is currently vacant. There are number of remaining general office uses remaining within the building. According to the property manager of the building, the remaining office uses within the building maintain regular office business hours of between 8:00 a.m. to 5:00 p.m. A Curves health and fitness facility was recently approved, which occupies 1,020 square feet of floor area. The hours of operation for Curves were conditioned between the hours of 7:00 a.m. to 9:00 p.m. daily and required a total of four parking spaces. Given the nature and design of the building, staff believes general office type uses will continue to be the predominate use of the building and parking will remain available for use by the proposed restaurant in the evening hours. However, there is the possibility that a retail use could occupy a portion of the vacant space that would require parking after the typical 5:00 p.m. closing time of the general office uses. Furthermore, the applicant has not provided sufficient evidence that use of the parking will remain permanently available during the requested weekend lunch hours once the remaining vacant space is leased. Therefore, staff does not believe sufficient facts exist to support this finding and recommends denial of the off -site parking agreement for the expanded hours of operation during the requested weekend lunch hours. General Use Permit Findings Pursuant to Section 20.82.060 of the Zoning Code, the proposed expansion in hours of operation and introduction of live entertainment and dancing are considered major changes in operational characteristics requiring an amendment to the Use Permit. Pursuant to Section 20.91.035 of the Zoning Code, the Planning Commission shall approve an application for an amendment to a use permit if the three required findings below can be made. Staff believes facts exist in support of the first and third findings; however, staff does not believe sufficient facts exist in support of the second finding: 1. 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 site is located in the Retail and Service Commercial (RSC) District. This district is intended to provide areas which are predominantly retail in character, but also allows service and office uses. The existing restaurant is consistent with the RSC District. FAUSERSIPLN\SharedlPA's1PAs - 2009TA2009- 080TA2009 -080 PC rpt.docx ` �V Port Restaurant & Bar August 20, 2009 Page 10 2. 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 Not in Support of Finding: The restaurant with live entertainment and dancing is consistent with the Corridor Commercial (CC) land use designation of the General Plan; however, given the location of the restaurant in close proximity to numerous residential units and Two -Unit Residential (RT) land use district, staff believes the operation of the restaurant, as proposed, will be detrimental to the public health, safety, peace, morals, comfort, or welfare of persons residing or working in the neighborhood of the restaurant, for the following reasons: • Although the JEC noise study indicates that live entertainment can be performed within the restaurant in compliance with the City's Community Noise Control Ordinance, the applicant's proposed remodel of the restaurant will significantly open up the dining rooms and bar area to the outdoor atrium patio, which may result in decreased sound attenuation and increased noise generation from the restaurant when live entertainment is performed. • Although the JEC noise study provides an indication of the expected noise levels when live entertainment is provided, the sound tests were performed when the restaurant was relatively unoccupied and do not account for noise levels when the restaurant is operating at capacity. Also, the sound tests do not account for noise sources that can be perceived as annoying by adjacent residences, such as noise from patrons inside the restaurant (i.e. talking and laughing), patrons leaving the restaurant (i.e. car alarms and doors slamming), or patrons loitering in the parking lot. • As indicated in the memorandums provided from the Code and Water Quality Enforcement Department and the Police Department, complaints have been received from residents in the past regarding the noise generated from the restaurant and from patrons walking to their cars and loitering in the parking lot; the addition of live entertainment and extending the hours of operation for an additional hour is expected to result in increased noise disturbances to the adjacent residences and neighborhood. • The introduction of live entertainment and dancing can potentially transform the restaurant into a nightclub, and due to the close proximity to a residential F:IUSERSIPLMShared\PA's1PAs - 20091PA2009- 0801PA2009 -080 PC rpt.docx Port Restaurant & Bar August 20, 2009 Page 11 neighborhood, would result in a land use that is incompatible with the residential character of the neighborhood. • Although the applicant states that he has rights to use the off -site parking spaces during weekends, insufficient evidence has been provided to confirm that parking will be available during the requested lunch service and there is no certainty that those parking spaces will remain available for the restaurant's exclusive use. 3. 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: • The existing restaurant is consistent with the legislative intent of Chapter 20.15 (Commercial Districts) of the Zoning Code. Section 20.15.020 requires approval of a use permit for restaurants in the RSC District. The current restaurant operates pursuant to Use Permit No. 1566. • The proposed live entertainment and dancing is considered an ancillary use to the existing restaurant. The Zoning Code does not require any specific conditions pertaining to the operation of live entertainment and dancing. Environmental Review This project has been reviewed, and it has been determined that it is categorically exempt under the requirements of the California Environmental Quality Act (CEQA) under Class 1 (Existing Facilities). Public Notice Notice of this review was published in the Daily Pilot, mailed to property owners within 300 feet of the property and posted at the site a minimum of 10 days in advance of this hearing consistent with the Municipal Code. Additionally, the item appeared upon the agenda for this meeting, which was posted at City Hall and on the city website. Summary Sufficient evidence has not been provided illustrating that the off -site parking lot will remain permanently available during the weekend lunch hours and uncertainty exists pertaining to the type of use that will occupy the remaining vacant space within the building; therefore, staff does not believe sufficient facts exist to support the off -site FAUSERS \PLN\ Shared\ PA's \PAs - 2009 \PA2009 - 080 \PA2009 -080 PC rpt.docx 13 Port Restaurant & Bar August 20, 2009 Page 12 parking agreement for the expanded hours of operation during the requested weekend lunch hours. Also, staff does not believe sufficient facts exist to support the required findings needed to approve the requested Use Permit amendment for the introduction of live entertainment, dancing, and expanded hours of operation. Should the Planning Commission deny the applicant's request, the restaurant will continue to operate under the existing conditions of approval of Use Permit No. 1566, as amended in 1977. The City has found the use of the subject off -site parking lot in conformance with the existing off -site parking agreement with the City and acceptable for use during the evening hours only. Alternatives If the Planning Commission concludes that there are sufficient facts to support findings for approval for any portion of the proposed Use Permit amendment, the Planning Commission shall state said facts, continue the public hearing to the next scheduled meeting, and direct staff to prepare a resolution for approval, with findings and conditions. 2. If the Planning Commission concludes that there are sufficient facts to support findings for approval for the proposed off -site parking agreement, the Planning Commission shall state said facts, continue the public hearing to the next scheduled meeting, and direct staff to prepare a resolution for approval, with findings and conditions. Prepared by: Jaime Murillo, Associate Planner ATTACHMENTS Submitted by: PC 1 Draft Resolution and Findings for Denial PC 2 Detailed Project Background PC 3 Use Permit No. 1566 Minutes, Findings, and Conditions (3/17/77) PC 4 Existing Off -Site Parking Agreement PC 5 Outdoor Dining Permit No. 2003 -002 PC 6 Notice of Violation PC 7 Project Plans PC 8 City's Exterior Noise Standards PC 9 JEC Sound Test PC 10 Police Department Memorandum PC 11 Code and Water Quality Enforcement Memorandum PC 12 Off -Site Parking Lease PC 13 Correspondence Received FAUSERS \PLN \Shared\PA's\PAs - 2009\PA2009-080\PA2009-080 PC rpt.dccx Attachment No. PC 1 Draft resolution and findings for denial 6 16 RESOLUTION NO. A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH DENYING AN AMENDMENT TO USE PERMIT NO. 1566 AND OFF -SITE PARKING AGREEMENT NO. OP2009 -003 FOR THE PORT RESTAURANT AND BAR LOCATED AT 440 HELIOTROPE AVENUE (PA2009 -080) THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS FOLLOWS: SECTION 1. STATEMENT OF FACTS. 1. An application was filed by Ali H. Zadeh, with respect to property located at 440 Heliotrope Avenue, and legally described as Parcel 1 of Parcel Map 57 -20 (Resubdivision No. 412) requesting approval of an amendment to Use Permit No. 1566 and Off -Site Parking Agreement No. OP 2009 -003. 2. The applicant proposes the following changes in the operational characteristics of the existing restaurant: 1) Expand the existing hours of operation (5:30 p.m. to 12:00 a.m.) by extending the closing time to 1:00 a.m. daily, and providing lunch service on weekends; and 2) Introduction of live entertainment and dancing. The application also includes an off -site parking agreement to allow the continued use of 40 off -site parking spaces on property located at 2865 East Coast Highway for the requested hours of operation. 3. The subject property is located within the Retail and Service Commercial (RSC) Zoning District and the General Plan Land Use Element category is Corridor Commercial (CC). 4. The subject property is located within the coastal zone. The Coastal Land Use Plan category is General Commercial (CG -B). 5. A public hearing was held on August 20, 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 Newport Beach Municipal Code. Evidence, both written and oral, was presented to, and considered by, the Planning Commission at this meeting. SECTION 2. CALIFORNIA ENVIRONMENTAL QUALITY ACT DETERMINATION 1. This project has been reviewed, and it has been determined that it is categorically exempt under the requirements of the California Environmental Quality Act (CEQA) under Class 1 (Existing Facilities). 2. The project involves minor interior alterations involving a negligible expansion of use. lI Planning Commission Resolution No. PC200X -XXX Paae 2 of 3 SECTION 3. REQUIRED FINDINGS. 1. Pursuant to Section 20.82.060 of the Zoning Code, the proposed expansion in hours of operation and introduction of live entertainment and dancing are considered major changes in operational characteristics requiring an amendment to the Use Permit. In accordance with Section 20.91.035 of the Zoning Code, the Planning Commission finds it cannot make the findings required to approve the requested amendment to Use Permit No. 1566. Given the location of the restaurant in close proximity to numerous residential units and Two -Unit Residential (RT) land use district, the operation of the restaurant, as proposed, will be detrimental to the public health, safety, peace, morals, comfort, or welfare of persons residing or working in the neighborhood of the restaurant, for the following reasons: • Although the sound test submitted by the applicant indicate that live entertainment can be performed within the restaurant in compliance with the City's Community Noise Control Ordinance, the proposed remodel of the restaurant will significantly open up the dining rooms and bar area to the outdoor atrium patio, which may result in decreased sound attenuation and increased noise generation from the restaurant when live entertainment is performed. • Although the sound test provided an indication of the expected noise levels when live entertainment is provided, the sound tests were performed when the restaurant was relatively unoccupied and do not account for noise levels when the restaurant is operating at capacity with additional noise generated from the activities of restaurant patrons. Also, the sound tests do not account for noise sources that can be perceived as annoying by adjacent residences, such as noise from patrons inside the restaurant (i.e. talking and laughing), patrons leaving the restaurant (i.e. car alarms and doors slamming), or patrons loitering in the parking lot. • Memorandums provided by the Code and Water Quality Enforcement Department and the Police Department, indicate complaints have been received from residents in the past regarding the noise generated from the restaurant and from patrons walking to their cars and loitering in the parking lot; the addition of live entertainment and extending the hours of operation for an additional hour is expected to result in increased noise disturbances to the adjacent residences and neighborhood. • The introduction of live entertainment and dancing can potentially transform the restaurant into a nightclub, and due to the close proximity to a residential neighborhood, would result in a land use that is incompatible with the residential character of the neighborhood. • Although the applicant states that he has rights to use the off -site parking spaces during weekends, insufficient evidence has been provided to confirm that parking will be available during the requested lunch service and there is no certainty that those parking spaces will remain available for the restaurant's exclusive use. J Planning Commission Resolution No. PC200X -XXX Paoe 3 of 3 2. Pursuant to Section 20.66.080 of the Zoning Code, off - street parking on a separate lot from the project site requires the approval of an off -site parking agreement. The Planning Commission finds it cannot make the findings required to approve Off -Site Parking Agreement No. 2009 -003. A majority of the 20,300- square -foot commercial building located at 2865 East Coast Highway is currently vacant. Sufficient evidence has not been provided illustrating that the off -site parking lot will remain permanently available for use by the restaurant during the weekend lunch hours and uncertainty exists pertaining to the type of use that will occupy the remaining vacant space within the commercial building. SECTION 4. DECISION. NOW, THEREFORE, BE IT RESOLVED: The Planning Commission of the City of Newport Beach hereby denies the amendment to Use Permit No. 1566 and Off -Site Parking Agreement No. OP 2009 -003, 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. PASSED, APPROVED AND ADOPTED THIS 20TH DAY OF AUGUST, 2009. AYES: NOES: ABSTAIN: ABSENT: BY: Robert Hawkins, Chairman BY: Charles Unsworth, Secretary l°► P Attachment No. PC 2 Detailed Project Background 9,� It as Detailed Project Backaround Use Permit No. 1566 The existing restaurant operates under Use Permit No. 1566, which was originally approved by the Planning Commission on November 18, 1971, and authorized the sale of alcoholic beverages in conjunction with an existing restaurant formally known as Pirate's Inn. On March 17, 1977, the Use Permit was amended to allow the expansion of the restaurant with additions of a new dining room, a secondary entryway, and a storage room, expansion of the kitchen and outdoor atrium, and the installation of new restroom facilities. The March 17, 1977, Planning Commission minutes (including findings and conditions) are included as Attachment No. PC 3. Since the original building was constructed at a time when there were no parking requirements for the use, required parking for the entire restaurant (approximately 1,600 square feet at the time) was approved in an off -site parking lot located at 504 -510 Goldenrod Avenue (northeast corner of Goldenrod Avenue and Second Avenue). Parking was required to be provided at a ratio of one space per 40 square feet of net public area, for a total of 40 parking spaces. The parking spaces were utilized by the commercial uses at 2831 and 2855 East Coast Highway during day; therefore, the restaurant was conditioned to operate between the hours of 5:30 p.m. to 12:00 a.m., so as to not conflict with the main use of the lot during normal business hours. The executed off -site parking agreement with the City is attached as Attachment No. PC 4. Change in Off -Site Parking Locations Condition No. 4 of Use Permit No. 1566 authorized the restaurant to satisfy its parking requirements through the use of 40 off -site parking spaces in the parking lot located at 504 -510 Goldenrod Avenue, or at another approved location should the restaurant lose access to those spaces. Section 2 of the off -site parking agreement also authorizes the use of an alternative parking location satisfactory to and approved by the City. In staff's research, the earliest records of the restaurant utilizing the parking spaces in the 2865 East Coast Highway parking lot appear in the tenant improvement plans for the restaurant in 2003, when the restaurant was operated under the name "Svelte." These tenant improvement plans included upgrading the parking lot with two handicapped accessible parking spaces and providing a clear path of travel to the restaurant. With the approval of the tenant improvements plans, for Svelte, the City found the subject parking lot satisfactory for the use of the subject restaurant and in conformance with the Use Permit. To date, the subject restaurant continues to lease the 40 parking spaces in said lot. Outdoor Dining Permit No. 2003 -002 On December 20, 2003, an accessory outdoor dining permit was approved authorizing the addition of an outdoor patio seating area in front of the resturant facing Heliotrope Avenue. The outdoor dining area was limited to 250 square feet and a maximum of 18 0 seats. Use of the accessory outdoor patio area was also limited to the hours between 5:30 p.m. to 10:00 p.m. Outdoor Dining Permit No. 2003 -002 is attached as Attachment No. PC 5, including findings and conditions of approval. The applicant is not proposing any changes to the configuration or use of the accessory outdoor dining area. Violations of Use Permit No. 1566 In October of 2008, the City became aware of various violations of Use Permit No. 1566, including providing live entertainment and exceeding the permitted hours of operation. On October 27, 2008, the Code and Water Quality Enforcement Department sent the applicant a notice of violation advising him of the violations and to discontinue with the non - permitted activities (Attachment No. PC 6). As discussed in the Department Concerns section of this report, memorandums provided by both the Code and Water Quality Department and the Police Department state that subsequent to the initial notice of violation, complaints have been received from residents regarding loud music and people leaving the restaurant at 1:30 a.m., resulting in Police Department investigations and further confirmation of Code and Use Permit violations. The applicant submitted the subject Use Permit amendment application in June 2009 and has since operated in compliance with the conditions of approval. ak Attachment No. PC 3 Use Permit No. 1566 minutes, findings, and conditions (3117177) AJ 0 COMMISSIONERS �liy ' of Newport Beach $y March 17 1977 MINUTES POLL C INDax Larry Sommers, Emkay Development Company, appeared efore the Commission in connection with the ame ent and had no objection to the continuance. Roman Kallme Architect, 1201 Dove Street, advise he had no object to the continuance and felt that it may be to the'I; advantage under the circumstances. lotion X Following discussion, motion was made,`that Ayes X X X X X X Amendment No. 490 and Use Permit No. 1 (Amended) 4bsent X be continued to the meeting of April 7, 19 Commissioner Seely declared himself to be in conflict of interest on the following item and therefore stepped down from the dais and refrained from deliberation in connection therewith. Item #6 Request to permit the expansion of the Pirates USE PERM Inn restaurant facility in the C -1 District, and NT-T5-66 the acceptance of an offsite parking agreement for AMENDED the required parking spaces. APPROVED Location: Parcel 1 of Parcel Map 57 -20 CONDI- (Resubdivision No. 412) located at TI —ORT LY 440 Heliotrope Avenue,..on the south- easterly side of Heliotrope Avenue, between East Coast Highway and First Avenue-in Corona del Mar. Zone: C -1 Applicant: John E. Soukeras, Corona del Mar Owner: Same as Applicant Staff distributed a letter received from Donald G. 'Clark in support of the request and answered questions of the Commission relative to the off - site parking lot and required agreement. Public hearing was opened in connection with this matter. John Soukeras, 440 Heliotrope Avenue, Corona del a1 CbrvMISSIONERS L City of Newport Beach A M,NU, ES oy March 17. 1977 ROL1. GAIL Mar, applicant, appeared before the Commission and commented on his desire to upgrade the restaurant and provide a waiting area for custon ers. He also commented on the condition to pro - vide valet parking and felt it would eliminate several on- street parking spaces and cause congestion in front of the restaurant. He would prefer to post a sign advising of the parking location and advised he has had no parking probl in the past and did not anticipate any in the future. Mr. Soukeras answered questions of the Commission relative to the proposed expansion an his ability to obtain a three -year lease for the off -site parking lot. Donal'd.G. Clark, 411 Heliotrope, Corona del Mar, appeared before the Commission in support of the request and felt that the restaurant was an asse to the community. There being no others desiring to appear and be heard, the public hearing was closed. Motion X Motion was made that Planning Commission make th Ayes X X X X X following findings: Absent X X 1. That the proposed use is consistent with the Land Use Element of the General Plan and is compatible.with surrounding land uses. 2. The project will not have any significant environmental impact. 3. The Police Department has indicated that they do not contemplate any problems. 4. The proposed parking spaces.for the expanded restaurant use on a separate lot from the building site are justifiable for the follow- 'ing rearons• a. The subject parking lot is located only 200 feet from the restaurant site. b. Parking on the off -site parking lot will not create undue traffic hazards in the surrounding area. c. The applicant can provide a long term agreement for the use of the subject park ing.lot during the evening hours of the ei 0 t A INDEX Aq 3 i "C7iV iMISSIONERS c soZ city of Newport Beach, March 17. 1977 moLL CALL .week when the restaurant will be in operation. 5. The.approval of Use Permit No. 1566 (Amendec will not, under the circumstances of this ca be detrimental to the health, safety, peace, morals, comfort and general welfare of persc residing and working in the neighborhood or be detrimental or injurious to property 4nd improvements in the neighborhood or the general welfare of the City. and approve Use Permit No. 1566(Amended) subject to the following conditions: 1. That development shall be in substantial conformance with the approved plot plan', floor plans, and elevations. 2. That all mechanical equipment and trash area shall be screened from adjoining properties and from adjoining streets. 3. That an off -site parking agreement shall be approved by the City Council, guaranteeing that a minimum of 40 parking spaces shall be maintained at the easterly corner of Second Avenue and Goldenrod Avenue for at least three years. If the applicant loses the use of the subject parking spaces at a later dat and cannot obtain the required number of par ing spaces at another approved location, the net public area of the restaurant facility shall be reduced so as not to exceed the net public area that currently exists on the sit 4. That the hours of the operation of the resta rant facility shall be limited from 5:30 P.N to 12:00 Midnight, daily, unless an offsite parking agreement is approved for parking spaces during daytime hours. 5. That a sign be posted on the front of the premises indicating the location of the off - site parking lot, said sign to be approved by the Department of Community Development.. 6. The approval for the sale of alcoholic beverages in the expanded restaurant shall be for a three year period from the effectir date of this action, and any request for MINUTES INOSX se s e k e e{ A, COMMISSIONERS vQms qC n��Tpo3 a�3��F s bps p � °z City of Newport Beach MINUTES Marrh 17. 1977 F40LL CALL INOeH extension shall be acted upon by the Modifi -' cations Committee. The extension of the original Use Permit No. 1566 is hereby terminated. Commissioner Hummel advised that as a local resident, he had no objection to the restaurant because of its quiet low -key nature, however, he voiced concern with parking in the area and felt that valet parking would be detrimental and cause more congestion. Commissioner Seely returned to the dais. Item #7 USE PERK Request to permit the construction of second U floor room additions so as to expand The Surfer N NO Attachment No. PC 4 Existing Off -Site Parking Agreement (7/8177) � 3- RECORDING REQUE:, 'D BY AND 13924 BK 12284FG 375 . WHEN RECORDED RL, .RN TO: _ EX4 NIP I RECORDED IN OFFICIAL RECORDS " t"iwty Clerk C2 OF ORANGE COUNTY. CAUFORNIA 3300 Newport Boulevard Newport Beach, California 9:05 A.M. JUL 111977 1. WYUEUWLE,Coaaty Reaolda' Space Above This Line for Recorder's Use Only OFF -SITE PARKING AGREEMENT (John E. Soukeras - 440 Heliotrope Avenue, Corona del Mar) T IS AGREEMENT is made and entered into this � . day of 1977 between the CITY OF NEWPORT BEACH, a munici al corporation, hereinafter referred to as "City ", and JOHN E. SOUKERAS, hereinafter referred to as "Owner ". IV I T N E S S E T H: WHEREAS, John E. Soukeras is the owner of that certain real property located in the City of Newport Beach, County of Orange, State of California, and more particularly described as: Parcel 1 of a certain parcel map filed in Book 57, Page 20 of Parcel Maps, County of Orange, California, being a division of portions of Lots - 1 and 2 and a portion of a vacated alley of Block G, Tract 323, as shown on a map recorded in Book 14, Pages 40 and 41 of Miscellaneous -- - Maps, Records of Orange County, California hereinafter referred to as Parcel "A" WHEREAS, Owner proposes to expand the existing restaurant business located on the above described property, known as "The Pirates Inn ", 440 Heliotrope Avenue, Corona del Mar, California. WHEREAS, the Newport Beach Municipal Code requires a total of forty (40) parking spaces for off- street automobile parking for the use of its employees and business invitees. WHEREAS, Owner has entered into an agreement with CDM Properties, Inc. for the use of a parking lot at the south- . �r Arc 4 G cle' Gry8l5�js 6A 122-Mg 376 east corner of 2nd Avenue and Goldenrod Avenue, Corona del Mar, California to be utilized from the hours between 5:30 P.M, to 12:00 P.M. on any day, a copy of which agreement is attached hereto marked Exhibit "A ". WHEREAS, the Planning Commission of the City of Newport Beach at its meeting of March 17, 1977 considered the off-site parking agreement in conjunction with consideration of amended Use Permit No. 1566 by Owner to expand the existing restaurant facility and recommended approval of the off - street parking agreement to the City Council of the City of Newport Beach. WHEREAS, the City Council at its meeting of May 9, 1977 considered the provisions of Section 20.30.035D of the Newport Beach Municipal Code and determined that the off - street parking agreement should be approved. NOW, THEREFORE, in consideration of the foregoing,' IT IS AGREED by and between the parties hereto as follows: 1. For so long as the building located on Parcel "A" is used as a restaurant facility, owner will lease from CDM Properties, Ltd. not less than forty (90) off - street automobile parking spaces on the property at the southeast corner of grid Avenue and Goldenrod Avenue, Corona del Mar, California. Owner will provide the Director of Community Development of the City of Newport Beach a new or amended parking agreement ninety (90) days prior to the expiration of the parking agreement presently existing. 2. In the event the use of the forty (90) off= street automobile parking spaces as referred to in Paragraph 1 above should be terminated and lost to Owner for any reason, Owner will immediately thereafter obtain additional off - street parking spaces satisfactory to and to be approved by the City. If the substitute parking spaces are not obtained, Owner will B% 12284PG 377 reduce the capacity of said restaurant to a level equal to the level of occupancy in existence at the time of approving of Use Permit No. 1566, or if some, but not all required park- ing can be provided, reduce the level of occupancy so as to reduce the parking requirements of said structure to a level consistent with off-street parking available to Owner as required by the City of Newport Beach's parking standards then in effect. 3. This Agreement shall run with the property described as Parcel "A" and shall bind the heirs, successors in interest and assigns of the parties hereto and it shall be recorded in the office of the County Recorder of the County of Orange, State of California. IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year first above written. ATTEST: d c ty Clerk CITY OF NEWPORT BEACH, A Municipal Corporation By //L 1 Mayor i JOB .5 UKERA , HRC y2 5/16/77 -3- .. �� STATE OF CALIF% IA) . COUNTY OF ORANGE j as BK 12284P6 378 si On 1977 before me, tine under- gned, a Notary P W11 nd for said State, personally appeared Milan Dos tai known to me to be the Mayor and known to me to--Fe —the City Clerk of t e un1C1pal Corporation that executed the within Instrument, known to me to be the persons who executed the within Instrument on behalf of the Municipal Corporation therein named, and acknowledged to me that such Municipal Corporation executed the within Instrument pursuant to a resolution of its City Council. WITNESS 'my hand and official seal. 4 f6°N O°.°44 4 kP..P018G90bSY4 P: . C� ° n-1rICIA I. SEAL j !yS; OC'i)iNY L. F. \EN Notar ° y Pub irJ n and for said State • I +Y':: P iP I. ^if ICE IN r�. � my Commission gepires F_-V. 9, 1501 ae•maa•9'fAMB °OE"'C11i°l'iB1�A°7°IA) COUNTY OF ORANGE )as: On 1977, before me, Signed, a Notary Public in and for Said State the ender- , known to me to be Personally appeared President an known to me to be t e Secretary o the corporation that executed the within instrument, known to me to be the persons who executed the within Instrument on behalf of the corporation therein named, and acknowledged to me that such corporation executed the within Instrument pursuant to its by -laws or a resolution of its board o£ directors. WITNESS my hand and official seal. Notary Public in and for said State STATE OF CALIFORNIA) COUNTY OF ORANGE as . On 1977, before me, the undersigned,' .a otary Public an or said state, personally R.A X P y , whose name is subscribed to the within rn�trument and acknowledged that ,_executed the same. y�ifi4i1SS m r, P seni y hand and ( official seal. • ) DOn� f L PAL N • H A 1 , ° MY CJ^1 .4 D. P , =.�., ,..,, i=.n. D. sat Notary publ .. ,...,......,..<..,.......,....' In and for sai Stt ate` — STATE OF CALIFORNIA) COUNTY OF ORANGE ) as: On 1977, before me' a Notary Public in and for said State, personally a the. undersigned, - p y ppeared whose name is subscribed to the within Instrument and acknowledged that executed the same. Notary Pu lie in and ror said State Attachment No. PC 5 Outdoor Dining Permit No. 2003 -002 3q CITY OF NEWPORT BEACH PLANNING DEPARTMENT 3300 NEWPORT BOULEVARD NEWPORT BEACH, CA 92658 (949) 644 -3200; FAX (949) 644 -3229 December 30, 2003 Kurt Conrad c/o: Conrad Holdings 240 Newport Center Drive, Suite 201 Newport Beach, CA 92660 Acc. Outdoor Permit No. OD2003 -002 (PA2003 -087) Staff Person: Javier S. Garcia, 644 -3206 Appeal Period: 14 days after approval date Application No: Accessory Outdoor Dining Permit No. OD2003 -002 (PA2003487) Applicant: Kurt Conrad Owner: Kurt Conrad, Newport Beach Address of Property Involved: 440 Heliotrope Avenue Legal Description: Parcel 1 of Resubdivision No 412 The applicant proposes to add outdoor patio seating within an area adjacent to Heliotrope Avenue. The outdoor dining will be utilized in conjunction with an existing full - service restaurant and will add nine tables and 18 seats (maximum) in front of the facility facing Heliotrope Ave. The property is located in the RSC District. Director's Action: Approved December 30, 2003 The Planning Director in approving the application, analyzed issues with regard to parking requirements, hours of operation, noise and restrooms facilities. A detailed discussion can be found in the attached appendix. In consideration of those aspects, the Planning Director determined in this case that the proposal, as conditioned, would not be detrimental to persons, property or improvements in the neighborhood and that the accessory outdoor dining permit as approved is consistent with the legislative intent of Title 20 of the Newport Beach Municipal Code based on the following findings: FINDINGS The Land Use Element of the General Plan designates the property for "Retail and Service Commercial" land use; and the proposed outdoor dining is accessory to an existing restaurant, a permitted use within that designation. �1 1 December 30, 2003 Page - 2 2. This project has been reviewed and determined to be categorically exempt from the requirements of the California Environmental Quality Act under Class 1 (Existing Facilities). 3. The approval of this application will not, under the circumstances of this case, be detrimental to the health, safety, peace, morals, comfort, and general welfare of the city for the following reasons: • Since the use is accessory to and an extension of the existing restaurant use, it is subject to all the findings and conditions of approval of Use Permit No. 1566 and its amendments, and not an independent use. • The proposed outdoor dining area, as conditioned, is compatible with the surrounding land uses, and its limited hours should prevent noise from adversely impacting the nearby residential uses. • The proposal does not include any noise generating activities inside or outside of the facility (i.e., live entertainment is not authorized for the facility) and those activities are specifically prohibited in the outdoor dining area by this approval. This includes the relocation of the host station to the interior of the facility. • The operation of the proposed development will increase the outdoor noise level in the immediate vicinity and the provision of a noise barrier is necessary to mitigate, to the greatest extent possible, the noise impacts on the residential uses located across the street and in the proximity. 4. The proposal is consistent with the legislative intent of Title 20 of the Newport Beach Municipal Code for the following reasons: • The use is accessory to and an extension of the existing food service use. • The location of the proposed accessory outdoor dining will not reduce the existing parking spaces. • The remodel of a portion of the front of the property to allow for the outdoor dining use is consistent with the intent and purpose of the code to provide outdoor dining opportunities. CONDITIONS: That development shall be in substantial conformance with the approved site plan, detail seating plan and floor plan, except as noted in the following conditions. 2. The accessory outdoor dining shall be used in conjunction with the related adjacent food establishment and shall be limited to a maximum of 18 seats and 250 sq. ft. (gross floor area), as proposed (not to exceed 25 percent of the indoor net public area), unless a use permit is first approved by the Planning Commission. The host area shown on the floor plan shall be relocated to the interior of the restaurant. 3. The outdoor dining (tables and chairs) shall be located within a well defined fenced area. The required fence enclosure shall be a minimum height of 9 feet and a solid fence or glass screen wall. No tables shall be permitted outside of the fenced area of the facility, beyond the seating area depicted on the plan or in the public right -of- way. The specific brand, size, type and model of tabletops and seating shall be approved by the Planning Department prior to installation. In addition, any proposed changes to the type or model shall be approved prior to installation. The seating adjacent to the food use facility shall be limited to the area as delineated on the approved site plan only. The use of turf surface within the outdoor dining 46 December 30, 2003 Page - 3 area shall be reviewed and approved by the Building Department prior to issuance and implementation of the outdoor dining area. 4. The outdoor dining area shall be accessed from the existing door that serves as the main entry to the restaurant. No new exterior doors or access way shall be allowed to serve the outdoor dining area from the interior of the existing restaurant, unless an amendment to this outdoor dining permit and Use Permit No. 1566 is first approved, as determined by the Planning Director. 5. The proposed firepit shall be gas - buming only, use of wood burning fireplace or pit is prohibited. Prior to implementation of the outdoor dining, a revised floor plan showing the final configuration of the outdoor dining area (including the required noise barrier) in relation to physical site features (the use of physical noise bar ier to delineate the area shall be specifically defined and labeled) shall be submitt d to and approved by the Planning Department in conjunction with the building permit for the interior alterations of the tenant space. The revised plans shall fully ' indicate and dimension the distance between the existing property line and the proposed work, including widths, lengths, and heights. The top of the proposed landscape plantings (horsetail) atop the new planters along the back of the existing sidewalk shall be limited to a maximum of 24 -inch above the finish surface of the adjacent existing public sidewalk. The daily hours of operation for the outdoor dining area are limited to between 5:30 p.m. to 9:00 p.m. This will allow for final seating of patrons at 9:00 p.m. and clearing and closing of the outdoor dining area at 9:30 p.m. All activities within the outdoor dining area, including cleanup activities shall cease at 10:00 p.m. Any increase in the hours of operation requires the approval of an amendment to this application. The operator of the food service use shall be responsible for the clean up of all on- site and off -site trash, garbage and litter generated by the use. Additionally, the area outside of the food establishment, including the public sidewalks, shall be maintained in a clean and orderly manner and may be subject to providing periodic steam cleaning of the public sidewalks as required by the Public Works Department. 9. Trash receptacles for patrons shall be conveniently located outside of the related food service facility to serve the accessory outdoor dining area. 10. Outside paging system or any other sound system utilized in conjunction with this outdoor dining establishment is prohibited. 11. The use of area heaters shall be approved by the Building Department and the Fire Department prior to installation or use. The use of propane heaters and the storage of propane containers on the premises are prohibited, unless otherwise approved by the Fire Department. 12. Alcoholic beverage service shall be prohibited in the outdoor dining areas, until an amendment to the existing ABC licensed area is first approved by the Police Department and the State's Department of Alcoholic Beverage Control. 41 \ 1 December 30, 2003 Page - 4 kJ ;� 13. The Applicant shall comply with the previous Public Works Department instructions to apply for and obtain an encroachment permit for the on -going work within the public right -of -way. In the event that such encroachment permit is not applied within one (1) week of Committee Review, the Public Works Department at its discretion will issue a Stop Work violation against the work. The two (2) proposed curb drains as designed on the submitted Plans will allow daily polluted janitorial on -site runoff from the outdoor dinning area to enter the public right -of -way. These curb drains shall be eliminated. The existing curb cores shall be reconstructed with a minimum 5 -foot section of new concrete curb and gutter per City of Newport Beach Standard Plans. All on -site runoff generated within the outdoor dining area shall be plumbed for discharge into the existing on -site sanitary sewer system. City approval of such discharge system is required. 14. The existing concrete driveway approach shall be reconstructed with new concrete curb and gutter. per City Standard Plan No. STD - 165 -L. In lieu of the new sidewalk shown on STD - 165 -L, the applicant may propose a landscaped parkway for City approval. 15. The entry gate or door located at the street right -of -way shall be redesigned so as not to open into the public right -of -way. This may require moving the door in or removing it entirely. The Building Department shall also review and approve the revised it placement prior to installation. No portion of the proposed entrance door to the establishment, when fully opened, shall extend into the public right -of -way. 16. All improvements shall be constructed as required by Ordinance and the Public Works Department. 17. A separate encroachment permit is required for the new work within the public right -of -way. 18. An approved encroachment agreement is required for all private improvements within the public right -of -way. Such agreement shall require that all portions of any private plantings that encroach onto the public right -of -way be trimmed and maintained continuously. The property owner shall be charged for the cost of any landscaping maintenance work performed by the City. 19. The applicant shall submit plans to the General Services Division and the Public Works Department for the trimming or removal any City Tree located within the public right -of -way. Any such work shall also be included in the encroachment agreement or permit prior to commencement of work within the public right -of- way 20. All applicable conditions of approval of Use Permit No. 1566 and its amendments shall apply and remain in force (copy available in the Planning Department), except as limited or restricted by the conditions of this approval, including but not limited to the hours of operation as specked. This will not preclude a change in the opening hour of the operation as specified by Use Permit No. 1566, which may require an amendment to the use permit approved by the Planning Commission. 21. The parking or stopping of delivery vehicles in the alley is prohibited at all times. i December 30, 2003 Page - 5 a j 22. Should problems arise with regard to noise associated with the outdoor dining areas, the Planning Department reserves the right to require the removal of all or a portion of the outdoor dining area seating in the areas which contribute to the noise problems or complaints, or reduce the hours of.operation. 23. Should this business 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 company. 24. The Planning Department may add to or modify conditions of approval to this outdoor dining permit. In addition, they may revoke this approval upon a finding of failure to comply with the conditions set forth in Chapter 20.82 of the Municipal Code or other applicable conditions and regulations governing the food establishment. The Planning Director or the Planning Commission may also revoke this permit upon a determination that the operation (that is the subject of this approval) causes injury, or is detrimental to the health, safety, peace, morals, comfort, or general welfare of the community. The decision of the Planning Department is final, however, the approval is subject to call up by the Planning Commission or the City Council for referral to the Planning Commission within 14 days of the decision date. Additionally, in accordance with the provisions of Section 20.82.080 of the Municipal Code, the applicant or any interested party may appeal the decision of the Planning Director to the Planning Commission within 14 days of the date of the decision. A filing fee of $915.00 shall accompany any appeal filed. PATRICIA L. TEMPLE, Planning Director By Javi a_rt Garcia, AICP Senior Planner F:IUSERSTLN\Shared\PXs\PAs - 20031PA2003.087XOD2003 -002 appr.doc Attachments: Appendix Vicinity Map Detail Seating Plan Letters of Opposition: D & D Stone, owners 439 Heliotrope Ave Mr. & Mrs. Chesboro, owners 432, Heliotrope Ave cc: property owner Cox Family Trust, Myrtle Cox, Trustee 1781 Shady Crest PI. El Cajon, CA 92020 Code Enforcement Officer q3 December 30, 2003 Page - 6 Parking Requirement APPENDIX In accordance with Chapter 20.82 of the Newport Beach Municipal Code, accessory outdoor dining requires no additional parking if it is less than 25% of the interior net public area. The subject facility complies with that requirement. Therefore, based on the recommended restrictions (250 square feet maximum size and 18 seats maximum) and the parking characteristics of the use, adequate parking is provided at the existing off -site location to serve the proposed use. Restroom Facilities Since the applicant has requested additional exterior seating for 18 persons in addition to the seats approved inside, the Building Department requires the provision of separate sex public restroom facilities. Public access to the restroom through the dining area of the restaurant is provided. Hours of Operation The applicant has not proposed any particular hours of operation for the outdoor dining area, however, the use permit allows the restaurant to operate between 5:30 p.m. and Midnight, unless an off -site parking agreement is approved for parking spaces during the daytime hours. Due to the proximity of the residential uses across the street and down the block, staff has limited the hours of operation of the outdoor dining use to 5:30 p.m. to 9:30 p.m. This will allow for final seating of patrons at 9:00 p.m. and closing of the outdoor dining area at 9:30 p.m. Noise Concerns Staff is concerned that the proposed outdoor dining use is located such that noise will disturb the quiet enjoyment of the existing residential properties across the street and in the vicinity. Therefore, staff has included a requirement to provide for a noise barrier in the form of a 9 -foot high wall or glass screen around the perimeter of two sides of the outdoor dining area and have also limited the hours of operation of the outdoor dining area to mitigate the potential adverse impact of the proposed use. A Attachment No. PC 6 Notice of Violation �5 tk4 CITY. MANAGER'S OFFICE Code & Water Quality Enforcement Division October 27, 2008 Mr. Ali Zadeh 216 2e Street .Manhattan Beach, CA 90266 -2161 Subject: 440 Heliotrope Ave (A.P. No. 459 182 10)/ Port Restaurant & Bar/ Use Permit 1566 Amended/ Outdoor Dining Permit OD2003.002. Dear Mr. Zadeh: This office has been informed that you are currently providing live entertainment at the Part Restaurant & Bar in Corona Del Mar. The use permit which you currently are operating under does not permit five entertainment at this location, nor do you possess a live entertainment permit. Additionally, we have been informed that you are exceeding permitted hours of operation in the restaurant facility and outdoor dinning area. Therefore, if you currently are providing live entertainment, you are asked to discontinue that portion of your restaurant operation immediately, and abide by the permitted hours of operation. Please see attached documents_ To discuss this letter please contact Charles Spence at 949 - 644 -3212 between the hours of 8:00 am to 3:00 pm Monday thru Friday. Very truly yours, Charles Spence Code and Water Quality Enforcement Officer 3300 Vie. {n }o, Boulevard • Post Office Box 1768 • Newport Beach. California 92658 -8915 Telephone: (949) 644 -3215 -Rae: (949) 71.8 -1840 - ��� ''v'.cityne�poa;- bearh.ca.us Al A� Attachment No. PC 7 Project Plans N 0 40 TENANTIMPROVEMENTS AT M - El -91Wd Rpp[Et MMO RRST flfKq qµ N RwhTF n TLxwwx:YREr M ..0 F .0 6 CPDIIAnwI MF nsrwaxvr. M wLL :wuuoE x:xwu uwana ro xa: n LORD DU9HB WNL9 MI.i XLL ffCWF A X tR wroPR RE BE A 8E0.W0 DM N wLL BE ACOm BE M FApR PAIID p1NY ro RcWEVC DFTIER EAOW SN1RU R1A vnw /Lh Axlro iRfM nE REIR. M A PU ... pm MM A BE WNL WO CFYND P m wLL UN R IXRROWIEp XTO ME F"N iIFSi ROG PL.w ro um AaWLC vnwuaE mum PRGI M 16TRLLPAM. PORT RESTAURANT /BAR CORONA DEL MAR, CA uclary D8Y PLANM ODEPARneW JUL 192009 MY OF NBWFORT BEACH PROJECT DIRECTORY PROXLT INFORMATION LIST OF PFMIN65 r.Rwournunw;o:nmG+E 1B(aLDfRDXF50 .exFVO+msERw£ mu Fwueerwu Sn f/I ICfA' D>M1N06 NMRwpffiB i RAPoQ00fElPYIXpa=PNI cowwcawnwama aumva�ewns wnnmL a rsumogauawx ABpN Op.ISA N:xILAgTL1 pyxEq IAOTBE9 Fl.CMnN1 xwIXmuRDawu.ew a+roPxwwRrxi¢xwDC. orer. a wupw+ iIR4D^AVp4(f161D maw. 'WG�^�Lp SW MNNIi GYD. P IXISfIx0IfA0A6mNMNXPMU KNttxlf RlblGpAW LEGAL DESCRIPTION wmwoa PMVixaawc;e oMwemwc. ®.® oDViwL vuw mnpwnw. rovrsiaw ipm zar[� CODE ARALY515 cxnivorouw¢r w mxttxurnDn�.v BwcraoxAOU:vRw ernes. w.eP BroRhp ;wD MOYEMBNSRTR fALWr IPMDm�= aIABQ'BBDR/WNDDFFMV el. ovexcowmvap.rfn mss. OXWANT LOAD TAWLATION VICINITY MAP > 4-s 1/6 n @ T UCAIgH 40 xpIDIRYF ArE mRau Du uAR cn e=R +, Q m j �I 1— Tn W I1 000 CL 9 0 U W 0 O a W W W J H F— k 944 ��Ewe O 1" 4; B.FM ID tMP60 Bifm ' mnWVaE: "� BM; 11p8FAW ertwM.E s u� fm R nw v wPµV' BF116 p16 ID iIR4D^AVp4(f161D Iff w+aO0g1ow�p•wuuD VICINITY MAP > 4-s 1/6 n @ T UCAIgH 40 xpIDIRYF ArE mRau Du uAR cn e=R +, Q m j �I 1— Tn W I1 000 CL 9 0 U W 0 O a W W W J H F— k 944 ��Ewe O 1" ECISTING PPRNPG MVIR 3EOON�ER PEWIT M81L] I oIFI. SITE PLAN / PARKIN& PLW M.. �.. �I e s 1 PARKIN& TABIk.ATIM ra n¢iww6�mPnwwu cumPmawcnc oP 1tT pOP MA,E• ePM69 6OePl PMILA PADhC® —M 6CwCR Q a0 H Q NW LPL/ 0 LL 3 �q� Yg Z g a M M Y CL CL a w r- CD �sstmmu u�uvs 0 2 ae 6 =�J HELIOTROPE AVE C PORT RESTAURANT /BAR EXISTING FLOOR PLAN �O�ai�eu�[Nd� g 6 .m Ndld a001J 03SOd0'dd O � � i l l W9 / Av�inVIS321 iWd I 3AV 3dOalOMH 5'� 59 � a s� eases a aa?? PORT RESTAURANT /BAR HELIOTROPE AVE (Jj 4 O AREA CALCS. PROPOSED FLOOR PLAN�:U� e SNVId 3bnilNbnj O3SOdNd V ONIISIX3 L, • it • -I�IL Ik I11111111� — 44 amaaoaionaH O4 g 9d (.0 661$ 8d8 / 1NHZinviS3u iwd LM F a B I 0 b N 9 5' Attachment No. PC 8 City's Exterior Noise Standards 5-1 51 Chapter 10.26 COMMUNITY NOISE CONTROL Page 1 of 1 10.26.025 Exterior Noise Standards. A. The following noise standards, unless otherwise specifically indicated, shall apply to all property with a designated noise zone: ALLOWABLE EXTERIOR NOISE LEVEL (Equivalent NOISE TYPE OF Noise Level, Leq) ZONE LAND USE 7 a.m. to 10 p.m. 10 p.m. to 7 a.m. I Single -, two -or multiple - family residential 55 DBA 50 DBA II Commercial 65 DBA 60 DBA III Residential portions of mixed -use properties 60 DBA 50 DBA IV Industrial or manufacturing 70 DBA 70 DBA 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) http: / /www.codepublishing. cony/ CAINewportBeachlhtml/NewportBeach 10/NewportBeac... 08/12/2009 Chapter 10.26 COMMUNITY NOISE CONTROL Page 1 of 1 10.26.055 Noise Level Measurement. A. The location selected for measuring exterior noise levels in a residential area shall be at any part of a private yard, patio, deck or balcony normally used for human activity and identified by the owner of the affected property as suspected of exceeding the noise level standard. This location may be the closest point in the private yard or patio, or on the deck or balcony, to the noise source, but should not be located in nonhuman activity areas such as trash container storage areas, planter beds, above or contacting a property line fence, or other areas not normally used as part of the yard, patio, deck or balcony. The location selected for measuring exterior noise levels in a nonresidential area shall be at the closest point to the noise source. The measurement microphone height shall be five feet above finish elevation or, in the case of a deck or balcony, the measurement microphone height shall be five feet above the finished floor level. B. The location selected for measuring interior noise levels shall be made within the affected residential unit. The measurements shall be made at a point at least four feet from the wall, ceiling or floor, or within the frame of a window opening, nearest the noise source. The measurements shall be made with windows in an open position. (Ord. 95 -38 § 11 (part), 1995) .0 http: / /www. codepublishing. com/ CA/NewportBeach/html/NewportBeach 10/NewportBeac... 08/12/2009 Attachment No. PC 9 JEC Sound Test kjl 6?ii0/2009 12:54 17145290051 JEC ZZ7_7 A Division of wissco, Inc. Noise Study TO: Jaime Murillo, Associate Planner Planning Dept. City of Newport Beach (949)644 -3209 imurillolEcitv.newoort -beach ca us FROM: Chris Wissman J.E.C. 363 ClAwood Park st. unit A Brea, Ca. 92821 (714)529 -6875 Chrisw4321@a iol.com SUBJECT: APPLICANT NAME: Application to Amend Port Restaurant/Bar, (PA2009 -080) Ali Zadeh use Permit No. 1566 440 Heliotrope ave. The noise study was performed on June 101h 2009, and monitored by Oet. Stark, NBPD and Bryan Moore, ABC Lialson, Detective Division, NBPD 949 -644 -3725 bmoore @nbod.ora Testing Eouiomeni- American recorder model sp1 -8810 conforming to IEC641, ANSI S1.4 type 2 sound level meter We tested with live music at the pining "B" area (future live Entertainment area), and with a O.J. system Inside at the Bar area. With the O'J. system playing at 90.105 dba inside, we found it to be the highest level sound to monitor from outside. -Existino Site Conditions The restaurant is a full - service establishment and permitted to operate under the conditions of Use Permit No. 1566. The restaurant's hours of operation are (5:00 p.m. to 12:00 a.m., seven days a week), and parking is maintained and provided In accordance with the Use Permit. No live entertainment and /or dancing are 363 Gliffwood Park Street, Unit - Brea, Califoinia 92821 Tclephone: (714) 529 -UIS - Fax: (714) 529 -0851 - License No, C10- 649567 PAGE 01/04 63 `� �' /'. '� ' / =max �'' � � � 4 5 ..Q/v7" y' � � 1 y .e � .. i� ;�i � a �/ � ''? �� C'U �F,l,(� l %��tl_ A.AW � t y �* \ \.� ���� � �''��.f� -/ t��.P.,� ���5 �a9YY It .% / ��� \ \., � 1 d .i�� a}" y*, �9�. -" � -: i`, NYC � �/ � � d�.�. a l- � ?- 'be \ Ti. i ' � � �. 'ipi A.` �—; a �hY A � �.� � � � � \ � �� ^ / � � '�� �r� � f � < '� r, > �. `. ,, � ti \� � in�n A� -� �V@,, �, ,,' � � � � ��.: \ ,�\ T "„\ t�^�h\ •'1�`•//'/ pis, i.. '�q� 07/10/2009 12:54 17145290851 JEC PAGE 03/04 �A A Division of Wissco. Inc. City Noise Regulations Chapter 10.26 of the Municipal Code (Community Noise Control) states the allowable average exterior noise levels experienced in a residential area (Zone 1) are as follows: • 5S dBA for any 15- minute period during the daytime hours of 7:00 a.m. to 10:00 p.m 50 dBA for any 15- minute period during the nighttime hours of 10:00 p.m. to 7:00 a.m. • . The maximum instantaneous noise level that is permitted is 75 dBA during the daytime or 70 dBA during the nighttime. • The ambient noise shall be standard if the ambient noise level exceeds the resulting standard. Noise Study This noise. study was prepared pursuant to the, exterior noise levels criteria specified in Chapter 10.26 of the Municipal Code (Community Noise Control). The noise study has checked the noise measurements of the nearest residences. The following chart summarizes the results from the noise study that was conducted under all conditions: H, 'GOluenrOp `.1 47.0 1 49.0 1 49.6 1 50.0 1 `47.0 1 '49.0 1 encnvayNa , 46.0 I 47.0 I 49.5 I 60.0 I :'47.0 IN r32 Helrotrbp 46.0 47.0 475 50.0 "46.0 "47.0 Is433 ins avf3,; : I 52.0 I 56.0 1 52.0 1 52.0 1 "52.0 1 "56.0 1 (' With doors closed Noise levels were undetectable from Restaurant and were at Ambient level) The noise study indicated that the average and maximum noise levels generated 363 Clifiwood Perk Strcq, Unit A • Brea, California 92821 Telephone: (714) 529.6875 • Fax: (714) 529 -0851 • License No. Cl 0-649567 �5 ,p/711V.P003 12:b4 17145290851 JEC PAGE 04/04 A Division of wissco, Inc. Conclusion The study concluded that noise generated by the DJ system or Live Entertainment will not exceed the maximum allowable exterior noise level at any nearby residentially -zoned property of 56 dba, and 60 dba for commercially zoned Property from 10:00 p.m. to 7:00 a.m. The study acknowledges, however, that some of the activities at the restaurant area will, on occasion, be audible and discernible at the nearby residences because the type and character of the noise generated by the restaurant activities (i.e. people talking„ qrs leaving from the parking lot) are different from the ambient traffic noise and will be addressed with the parking plan. In order to relate the submitted noise study and the City's noise standards to the Planning Department, W. Zadeh sought our professional opinion as an independent acoustical consultant. After reviewing the actual noise readings, we found the submitted noise study'is consistent with that required.by the City's noise standards. We also conclude the noise levels generated by the DJ system or Live entertainment will be audible from time to time, but. they will not be. perceived as loud. The maximum noise levels at the residences due to the DJ system or live entertainment activities will generally be around 47dba. During loud events, peak noise levels from Entertainment could be as high as 55 dba. These events could be clearly audible, but would not be perceived as loud since traffic on Coast Highway and aircraft overflights commonly reach noise levels in the 65 to 75 dba range. Recommendations We recommend that an additional door be installed at the front entrance to block out the sound that comes out when a customer enters or exits the restaurant. As discussed above, noise from the restaurant may be heard by the residents, especially during, lulls in traffic in the later portion of the evening, and the additional door will make a. substantial difference. Qualifications: Chris Wissman — Audio Engineering for over 15 years including sound design and layout for indoor and outdoor venues, churches, theater, dance and sound rooms. Dolby digital and system layout certified. James Wiseman — Sr. Partner, U.S. Navy Ret. Trainer for Acoustical studies and sound management with over 30 ears experience in audio application, 363 Cliffwood Park Street, UnitA • Brea, California 92821 Telephone: (714) 529 -6$75 • Fax: (714) 529 -0851 • License No. CIO- 649567 Attachment No. PC. 10 Police Department Memorandum �n City of Newport Beach Police Department Memorandum July 31, 2009 TO: Jaime Murillo, Associate Planner FROM: Detective Bryan Moore SUBJECT: Port Restaurant & Bar, 440 Heliotrope Ave., Amendment to Use Permit No. 1566 (PA2009 -080). At your request, the Police Department has reviewed the project application for The Port Restaurant & Bar, located at 440 Heliotrope Avenue, Newport Beach. Per the Project Description submitted by the Owner, Ali H. Zadeh the proposal is to allow the following changes in the operational characteristics of the existing restaurant: (1) Expand the hours of operation (5 p.m. to 12 a.m.) by extending the closing time to 1 a.m., (2) Introduce live entertainment and dancing, (3) Remodel the existing floor plans to enhance circulation within the restaurant, and (4) Request approval of an off -site parking agreement to allow use of 40 spaces on property located at 2865 E. Coast Hwy. The applicant currently has a Type 47 (General — Eating Place) license with the Department of Alcoholic Beverage Control. I have included a report by Crime Analyst Paul Salenko that provides detailed statistical information related to calls for service in and around the applicant's place of business. This report indicates that this new location is within an area where the number of crimes is at least 75% higher than the average of all reporting districts in the City. Additionally, this location is within an RD that is over the Orange County per capita of ABC licenses. Applicant History The Port Restaurant was established in Corona Del Mar in 2006. It is located south of the historic Port Theater in a newly renovated ocean -side bungalow. The interior of the restaurant features a chic Mediterranean d6cor along with an outdoor patio and heated Atrium. The Port Restaurant also prides itself on its unique Continental cuisine, top -shelf bar menu and comprehensive wine list. In 2008 the restaurant earned a coveted spot in the Zagat review guide. I Port Restaurant & Bar Amendment to UP No. 1566 By all accounts, the Port Restaurant is a quality dining establishment which compliments the community of Corona Del Mar. It should be noted, however, that in October of 2008 the City of Newport Beach became aware of various use permit violations associated with the restaurant. These violations included providing live entertainment without the proper permits and exceeding permitted hours of operation. On October 27, 2008 Newport Beach Code and Water Quality Enforcement sent the Operator of the restaurant, Ali Zadeh, a letter advising him to discontinue the above activities. In February of 2009, Newport Beach Code and Water Quality Enforcement continued to receive complaints from residents regarding loud music and people leaving the location at 1:30 a.m. The issue was referred to the Newport Beach Police Department to investigate the validity of the complaints. On February 5, 2009, an investigation was conducted at the Port Restaurant at which time Newport Beach detectives observed the business to be conducting live entertainment (D.J.) and operating past 12 a.m. A crime report was generated and forwarded to Code and Water Quality Enforcement. On February 19, 2009, representatives from Newport Beach Code and Water Quality Enforcement as well as the Police Department met with Mr. Zadeh. The purpose of the meeting was to discuss several outlined use permit violations as well as the use permit amendment process. Mr. Zadeh expressed interest in amending his use permit, however, it was made clear that the Port Restaurant could not continue to operate in violation during the application process. On May 1, 2009, the Police Department conducted a second investigation at the Port Restaurant at which time subsequent violations were observed. These violations included: discontinuing food service before close, live entertainment (D.J.), blocked aisles and overcrowding. Mr. Zadeh was contacted at scene and issued a personal service citation for the fire code violations. He was also advised to discontinue the live entertainment which was in violation of use permit. On May 28, 2009, a NBPD Patrol Officer responded to a loud music complaint at the Port Restaurant. When the officer arrived he observed live entertainment (D.J.) being conducted in the bar area. An additional crime report was generated for the incident and forwarded to Code and Water Quality Enforcement. In June of 2009, the Port Restaurant submitted an application to amend their use pen-nit. To assist with the review of the application, Mr. Zadeh retained the services of a noise consultant (J.E.C.) to prepare a noise study. This noise study measured the sound levels (during live entertainment) at the property lines and adjacent properties to determine whether or not they were in compliance with the city's noise control ordinance. 2 lb Port Restaurant & Bar Amendment to UP No. 1566 Members of the Newport Beach Police Department conducted an independent sound test in conjunction with J.E.C. The Police Department's measurements were consistent with those taken by J.E.C. Although the noise level produced by the live entertainment at the restaurant did not exceed the allowable exterior noise level (per the NB Municipal Code), the Police Department has still received approximately 20 calls for service in the past year for loud music. Additionally, the Police Department understands that there are several other contributing factors to the noise associated with a restaurant/bar setting. These factors include: increased vehicular traffic in the area, patrons talking outside while waiting for cabs or walking to their vehicles and other crimes /disturbances associated with alcoholic beverage consumption. By all accounts, the Port Restaurant has proposed to transform their dining establishment into more of a "nightclub" type setting. Not only is this apparent in the project proposal, but it has been evident in a blatant pattern of violations prior to the amendment application process. The Police Department has already had to spend a considerable amount of time addressing complaints with regard to the noise and activity at this location. Due to the restaurant's proximity to nearby residents, we believe that the proposed changes will only contribute to an increase in the noise and police activity. Additionally, the Police Department knows from experience that past actions are a good indicator of future performance. We encourage the Port Restaurant to continue to operate as a restaurant, however, due to the stated reasons we can not recommend this application for approval. Should this application be approved, the Police Department recommends the following conditions: Sims and Displays Any signs or displays would need to conform to City requirements. There shall be no exterior advertising or signs of any kind or type, including advertising directed to the exterior from within, promoting or indicating the availability of alcoholic beverages. Interior displays of alcoholic beverages or signs, which are clearly visible to the exterior, shall constitute a violation of this condition. Hours of Operation The proposed hours of operation are from 11:00 a.m. to 1:00 a.m. daily. Based on the proximity to nearby residents and the past history of noise complaints the Police Department recommends that the Port Restaurant close at 12:00 a.m. daily. i� Port Restaurant & Bar Amendment to UP No. 1566 Security The applicant shall provide licensed security personnel while offering live entertainment. A comprehensive security plan for the permitted uses shall be submitted for review and approval by the Newport Beach Police Department. The procedures included in the plan and any recommendations made by the Police Department shall be implemented and adhered to for the life of the use permit. Employee Trainina Require all owners, managers, and employees selling alcoholic beverages to undergo and successfully complete a certified training program in responsible methods and skills for serving and selling alcoholic beverages. Additional Comments For the purposes of this application, staff may also want to consider establishing conditions that would require a Special Event Permit. A Special Event Permit may be required for any event or promotional activity outside the normal operational characteristics of the proposed operation. For example, events likely to attract large crowds, events for which an admission fee is charged, events that include any form of contract promoters, or any other activities as specified in the Newport Beach Municipal Code to require such permits. Other Recommended Conditions In addition, the Police Department has determined that the following conditions would be appropriate for the Conditional Use Permit for the business: 1. 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. 2. No alcoholic beverages shall be consumed on any property adjacent to the licensed premises under the control of the licensee. 3. No "happy hour" type of reduced price alcoholic beverage promotion shall be allowed except when served in conjunction with food ordered from the full service menu. 4. 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. 4 Port Restaurant & Bar Amendment to UP No. 1566 5. 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. 6. There shall be no on -site radio, television, video, film or other electronic media broadcasts, 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. 7. There shall be no dancing allowed on the premises. 8. Strict adherence to maximum occupancy limits is required. 9. Bottle service shall be prohibited. 10.The use of private (enclosed) "VIP" rooms or any other temporary or permanent enclosures separate from public areas are prohibited. 11.VIP passes or other passes to enter the establishment, as well as door charges, cover charges, or any other form of admission charge, including minimum drink order, or sale of drinks is prohibited. If you have any questions, please contact me at (949) 644 -3725. Detective Bryan Moore ABC Liaison Craig ell, Lieutenant Acting ivision Commander- Detective Division 5 13 City of Newport Beach Police Department Memorandum July 27, 2009 TO: Jaime Murillo, Associate Planner FROM: Paul Salenko, Crime Analyst SUBJECT: Alcohol Related Statistics At your request, our office has reviewed police services data for the Port Restaurant & Bar at 440 Heliotrope Ave. This area encompasses our reporting district (RD) number 44 as well as part of Census Tract 627.01. This report reflects City of Newport Beach crime data for calendar year 2008, which is the most current data available. Calls for Service Information City wide there were approximately 68,886 calls for police services during this time, of which 4,917 were in RD 44. A "call for service" is, any contact of the police department by a citizen which results in the dispatching of a unit or causes the contacted employee to take some sort of action, such as criminal investigations, alarm responses, traffic accidents, parking problems, and animal control calls, etc. Crime Information There were 6,779 crimes reported to the Newport Beach Police Department during this period. Of this total, 2,889 were Part One Crimes. Part One crimes are the eight most serious crimes (Homicide, forcible Rape, Robbery, Aggravated Assault, Burglary, Larceny - theft, Auto Theft and Arson) as defined by the FBI in the Uniform Crime Reports. The remaining 2,262 were Part Two crimes. The Part One crime rate for the entire city during this same period was 30,414.75 per 100,000 people. The national Part One crime rate was 3,808.07* per 100,000 people. Crimes RD 44 Newport Beach California* National* Part 1 168 2,889 1,299,685 11,251,818 Part 2 120 2,262 N/A N/A Part 1Crime Rate 3,007.52 3,430.38 3,555.6 3,622.36 The number of active ABC licenses in this RD is 29 ** Per capita ratio l license for every 193 residents. This reporting district had a total of 373 reported crimes as compared to a City wide reporting district average of 178 reported crimes. This reporting district is 190 crimes more or 109.09% above the City wide reporting district average. This location is within an area where the number of crimes is at least 75% higher than the average of all reporting districts in the City as outlined in the City Council "K -7' policy. This location is within an RD that is over the Orange County per capita average of ABC licenses**. Arrest Information There were 46 DUI arrests and 39 Plain Drunk arrest in this area during this same period as compared to 1,680 for the entire city. This RD amounts to 5.061/6 of the DUI /Drunk arrests made in the entire City. According to a recent national study by the Department of Justice, more than 36% of adult offenders convicted of crimes in 1996 had been drinking at the time of their arrest. Arrests RD 44 Newport Beach (DUI/Drunk) 85 1,680 Total Arrests 197 3,920 California* National* N/A N/A 1,540,894 14,209,365 Additional Information The Alcoholic Beverage Outlets ordnance states that the Planning Commission shall consider the crime rate in the adjacent reporting districts. The two adjacent reporting districts you requested are RD 39 and RD 45 Crimes RD 39 RD 45 Part 1 264 16 Part 2 217 21 Crime Rate 30,414.75 1,693.12 Arrests (DUI/Drunk) 77 5 Total Arrests 262 10 Calls For Service 45,484 456 Number of active ABC licenses 45 ** 3 ** Per capita ratiol license for every 19* residents 315* residents. Note: It is important to remember that when dealing with small numbers any change greatly affects any percentage changes. The population figure used for the Crime Rate was 84,218. *These numbers are from the 2007 Uniform Crime Reports, which is the most recent edition. * *The number of active ABC licenses is the total of all types of licenses known to the police department as of the date of this document. As of May 1, 2003 the Orange County average of active, retail ABC licenses was 1 license for every 592 residents. (4,805 licenses and a population of 2,846,289) If you are in need of any further assistance, please contact me at (949) 644 -3791. Paul Salenko Crime Analysis Unit -15 J� Attachment No. PC 11 Code and Water Quality Enforcement Memorandum ,11 City of Newport Beach Code and Water Quality Memorandum July 31, 2009 TO: Jaime Murillo, Associate Planner FROM: Matt Cosylion, Sr. Code & Water Quality Enforcement Officer SUBJECT: Port Restaurant & Bar, 440 Heliotrope Ave., Amendment to Use Permit No. 1566 (PA2009 -080). The Code and Water Quality Enforcement Division (CWQED) has reviewed the project application and description for The Port Restaurant & Bar, located at 440 Heliotrope Avenue, Newport Beach. The CWQED recognizes that the Port Restaurant is a valuable asset to the Corona Del Mar business community. However, the CWQED recommends that the application not be approved for the following reasons: (1) The addition of live entertainment and dancing can potentially create a nightclub type atmosphere. Because the restaurant is adjacent to a residential neighborhood, a nightclub would affect the character of the neighborhood and may increase the number of complaints that this department and the Newport Beach Police Department already receive regarding noise from the restauranttbar, noise from patrons heading to their.vehicles or loitering near the establishment, loud music, and other similar disturbances. (2) Extending the hours of operation until 1 a.m. may increase the number of complaints (as outlined above) this department and the Newport Beach Police Department already receive regarding the Port Restaurant. (3) The Port Restaurant does not have a long term off - street parking agreement. (4) This department and the Newport Beach Police Department have spent a considerable amount of time responding to complaints (as outlined above) over the last eight months and approval of the application may result in increased calls for service. Applicant History In addition to the police activity at the Port Restaurant memorandum) the CWQED has met with Mr. Zadeh, Restaurant, on two occasions and issued two Notice Administrative Citations since October of 2008. (See Police Department the owner of the Port of Violations and three 1� Port Restaurant & Bar Amendment to UP No. 1566 On October 27, 2008, the CWQED sent Mr. Zadeh a letter advising him to discontinue providing live entertainment without proper permits and exceeding permitted hours of operation. On February 19, 2009, representatives from the CWQED and the Police Department met with Mr. Zadeh. The purpose of the meeting was to discuss observed and reported use permit violations as well as the use permit amendment process. Mr. Zadeh expressed interest in amending his use permit. It was made clear that the Port Restaurant could not continue to operate in violation of Use Permit 1566 during the application process. Mr. Zadeh was issued a Notice of Violation and given copies of UP 1566, Outdoor Dining Permit 2003 -002, and Resolution 9077. On May 8, 2009, Mr. Zadeh was personally issued two $100 Administrative Citations by the CWQED for having live entertainment without a permit and changing the operational characteristics of the establishment without amending the use permit. Mr. Zadeh was advised not to have live entertainment until the use permit for the Port Restaurant had been amended. On June 14, 2009, Mr. Zadeh was issued a $200 Administrative Citation by the Code and Water Quality Division for having live entertainment without a permit on May 28, 2009. In addition to the above incidents, the Code and Water Quality Division has received complaints from residents in the neighborhood regarding noise, loud music, trash and other related problems. Copies of the emails are available upon request. Should this application be approved, the CWQED recommends the following conditions: Recommended Conditions 1. Any signs or displays would need to conform to City requirements. There shall be no exterior advertising or signs of any kind or type, including advertising directed to the exterior from within, promoting or indicating the availability of alcoholic beverages. Interior displays of alcoholic beverages or signs, which are clearly visible to the exterior, shall constitute a violation of this condition. 2. The hours of operation shall be limited to 11:00 a.m. to 12:00 a.m. daily 3. The applicant shall provide licensed security personnel while offering live entertainment. A comprehensive security plan for the permitted uses shall be submitted for review and approval by the Newport Beach Police Department. The procedures included in the plan and any 2 (' Port Restaurant & Bar Amendment to UP No. 1566 recommendations made by the police department shall be implemented and adhered to for the life of the use permit. 4. Require all owners, managers, and employees selling alcoholic beverages to undergo and successfully complete a certified training program in responsible methods and skills for serving and selling alcoholic beverages. Copies of the certificates of completion shall be kept onsite and shall be made available upon request 5. 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. 6. No alcoholic beverages shall be consumed on any property adjacent to the licensed premises under the control of the licensee. 7. No "happy hour" type of reduced price alcoholic beverage promotion shall be allowed except when served in conjunction with food ordered from the full service menu. 8. A full service menu must be available until a half -hour before closing time. 9. 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. 10.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. 11. There shall be no on -site radio, television, video, film or other electronic media broadcasts, 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. 12.There shall be no dancing allowed on the premises. 13. Strict adherence to maximum occupancy limits is required. 14. Bottle service shall be prohibited. 3 �I Port Restaurant & Bar Amendment to UP No. 1566 15.The use of private (enclosed) "VIP" rooms or any other temporary or permanent enclosures separate from public areas are prohibited. 16.VIP passes or other passes to enter the establishment, as well as door charges, cover charges, or any other form of admission charge, including minimum drink order, or sale of drinks is prohibited. 17. Prior to the commencement of live entertainment, a live entertainment permit must be obtained. 18. Deliveries and refuse collection for the establishment shall be prohibited between 10:00 p.m. and 8:00 a.m. daily. 19. All outdoor storage must be screened from public view. 20.All trash from the facility must be placed in a trash bin and stored in a trash enclosure. 21. The lids to the trash bin must be kept closed at all times. 22.The trash bin and enclosure must be kept clean at all times and the applicant must prevent odors. 23.The applicant must clean the off -site parking lot and the areas surrounding the establishment after closing. If you have any questions, please contact me at (949) 644 -3217. Matt Cosylion Sr. Code and Water Quality Enforcement Officer 2 (0 Attachment No. PC 12 Off -Site Parking Lease �3 CALIFORNIA COMMERCIAL LEASE AGREEMENT _ ASSOCIATION -� OF REALTORSx (C.A.R. Forth CL, Revised 04106) Date (For reference only): June 19, 2009 3. Legacy Propexty Manage129nt ( "Landlord ") and Port R®stanraat / ali zadan ('Tenant ") agree as follows PROPERTY: Landlord rents to Tenant and Tenant rents from Landlord. the real property and improvements described as: Rear narkrag lot of 2865 and 2967 E Coast lire. Corona dol Dhr. Ca 92625 ("PfeMlS0 ), which comprise approximately % of the total square footage of rentable space in the entire property. See exhibit z for a further description of the Premises. TERM: The term begins on (date) July 1. 2009 ( "Commencement Date"). (Check A or B): ® A. Lease: and shall terminate on (date) June 30. 2010 at 5:00 ❑ AM ® PM. Any holding over after the term of this agreement expires. with Landlord's Consent, shall create a month -to -month tenancy that either party may terminate as specified in paragraph 28. Rent shall be at a rate equal to the rent for the immediately preceding month. payable in advance. All other terms and conditions of this agreement shall remain in full force and effect. ❑ B. Month -to- month: and continues as a month -to -month tenant'. Either parry may terminate the tenancy by giving written notice to the other it least 30 days prior to the intended termination date, subject to any applicable local laws. Such notice may be given on any date. ❑ C. RENEWAL OR EXTENSION TERMS: See attached addendum BASE RENT: A. Tenant agrees to pay Base Rent at the rate of (CHECK ONE ONLY:) ❑ (1) $ 1,500-00 per month, for the term of the agreement. ❑ (2) $ per month, for the first 12 months of the agreement. Commencing with the 13th month, and upon expiration of each 12 months thereafter, rent Shall be adjusted according to any increase in the U S. Consumer Price Index of the Bureau of Labor Statistics of the Department of Labor for All Urban Consumers ( "CPI') for (the city nearest the location of the Premises), based on the following formula: Base Rent will be multiplied by the most current CPI preceding the first calendar month during which the adjustment Is to take effect. and divided by the most recent CPI preceding the Commencement Date. In no event shall any adjusted Base Rent be less than the Base Rent for the month immediately preceding the adjustment. If the CPI is no longer published. then the adjustment to Base Rent shall be based on an alternate index that most closely reflects the CPI. ❑ (3) $ per month for the period commencing and ending and $ per month for the period commencing and ending and $ per month for the period commencing and ending ❑ (4) In accordance with the attached rent schedule. ❑ (5) Other: B. Base Rent is payable in advance on the 1st (Or ❑ ) day of each calendar month, and is delinquent on the next day. C. If the Commencement Date falls on any day other than the first day of the month, Base Rent for the first calentlar month shall be prorated based on a 30-day period. If Tenant has paid one full month's Base Rent in advance of Commencement Date. Base Rent for the second calendar month shall be prorated based on a 30 -day, period. 4. RENT: A. Definition: ("Rent') shall mean all monetary obligations of Tenant to Landlord under the terms of this agreement, except security deposit. B. Payment. Rent shall be paid to (Name) Legacy Property 9e21agameat at (address) PO Ban 3539 _Tustin CA 92681 .or at any other C. Timing: Base Rent shall be paid as specified in paragraph 3. All other Rent shall be paid within 30 days after Tenant is bilied by Landlord. S. EARLY POSSESSION: Tenant is entitled to possession of the Premises on June 18 2009 If Tenant is in possession prior to the Commencement Date, during this time (I) Tenant is not obligated to pay Base Rent. and (ii) Tenant ❑ is ❑ is not obligated to pay Rent other than Base Rent. Whether or not Tenant is obligated to pay Rent prior to Commencement Date, Tenant is obligated to comply with ail other terms of this agreement. 6. SECURITY DEPOSIT: A. Tenant agrees to pay Landlord $ 2,500. 00 as a security deposit. Tenant agrees not to hold Broker responsible for its return. (IF CHECKED:) 11 If Base Rent increases during the term of this agreement, Tenant agrees to increase security deposit by the same proportion as the increase in Base Rent. B. All or any portion of the security deposit may be used, as reasonably necessary, to: (i) cure Tenant's default in payment of Rent, late charges, non - sufficient funds ( "NSF ") fees, or other sums due; Iii) repair damage, excluding ordinary wear and tear. caused by Tenant or by a guest or licensee of Tenant; (iii) broom clean the Premises, if necessary, upon termination of tenancy: and (iv) cover any other unfulfilled obligation of Tenant. SECURITY DEPOSIT SHALL NOT BE USED BY TENANT IN LIEU OF PAYMENT OF LAST MONTH'S RENT. If all or any portion of the security deposit is used during tenancy. Tenant agrees to reinstate the total security deposit within 5 days after written notice is delivered to Tenant. Within 30 days after Landlord receives possession of the Premises. Landlord shall. (i) furnish Tenant an itemized statement indicating the amount of any security deposit received and the basis for its disposition. and (ii) return any remaining portion of security deposit to Tenant However, if the Landlord's only claim upon the security tleposit Is for unpaid Rent, then the remaining portion of the security deposit. after deduction of unpaid Rent, shall be returned within 14 days after the Landlord receives possession. C. No interest will be paid on security deposit. unless required by local ordinance. The copyright laws of the United States (Title 17 U.S. Code) forbid the unauthorized reproduction of this form, or any portion thereof, by photocopy machine or any other means, including facsimile or Computerized formats. Landlord's Initials ( ) ( ) C Copyright ®1998 -2007, CALIFORNIA ASSOCIATION OF REALTORS®, INC. Tenants Initials ( ) ( ) Ptp�" ALL RIGHTS RESERVED. RevMwetl ny Date ° CL REVISED 04106 (PAGE 1 of 6) COMMERCIAL LEASE AGREEMENT (CL PAGE 1 OF 6) Agent: Gregory Moore Phone: (949) 675 -0999 Fax: (949) 313 - 1834 Prepared using WINForms® software Broker: Gmoon, Moore Realty 2865 E Coast Highway, Corona del Mar, CA 92625 _ __ _ g5 Rear parking lot of 2865 and 2867 E Coast Hwy, Corona del Premises: Mar, CA 92625 Date June 19, 2009 7. PAYMENTS: PAYMENT TOTAL DUE RECEIVED BALANCE DUE DUE DATE A. Rent: From 0710112009 To 0810112009 $ 1,500.00 S S 11500.00 07/01/09 Date Date B. Security Deposit ............ .... I .... 1. . $ 11500.00 $ 1,500.00 S 02/01/07 C. Other. D. Other $ Category E. Total: ... ............................... $ 3,000.00 $ 1,500.00 S 1,500.00 S. PARKING: Tenant is entitled to 40 unreserved and No reserved vehicle parking spaces. The right to parking ® is 0 is not included in the Base Rent charged pursuant to paragraph 3. If not included in the Base Rent, the parking rental fee shall be an additional $ per month. Parking space(s) are to be used for parking operable motor vehicles, except for trailers. boats. campers, buses or trucks (other than pick -up trucks). Tenant shall park in assigned space(s) only Parking space(s) are to be kept clean. Vehicles leaking oil. gas or other motor vehide Fluids shall not be parked in parking spaces or on the Premises. Mechanical work or storage of inoperable vehcles is not allowed In parking space(s) or elsewhere on the Premises No overnight parking is permitted. 9. ADDITIONAL STORAGE: Storage is permitted as follows: NONE The right to additional storage space ❑ is M is not included in the Base Rent charged pursuant to paragraph 3. If not included In Base Rent . storage space shall be an additional $ per month. Tenant shall store only personal property that Tenant owns, and shall not store property that is Claimed by another, or in which another has any right. title, or interest. Tenant Shall not store any improperly packaged food or perishable goods, flammable materials, explosives, or other dangerous or hazardous material. Tenant shall pay for, and be responsible for, the clean -up of any contamination caused by Tenant's use of the storage area 10. LATE CHARGE; INTEREST; NSF CHECKS: Tenant acknowledges that either late payment of Rent or issuance of a NSF check may cause Landlord to incur costs and expenses, the exact amount of which are extremely difficult and impractical to determine. These costs may include, but are not limited to, processing, enforcement and accounting expenses, and late charges imposed on Landlord. If any installment of Rent due from Tenant is not received by Landlord within 5 calendar days after date due, or if a check is returned NSF. Tenant shall pay to Landlord, respectively. $ 150.00 as late Charge, plus 10% interest per annum on the delinquent amount and $25.00 as a NSF fee, any of which shall be deemed additional Rent. Landlord and Tenant agree that these charges represent a fair and reasonable estimate of the costs Landlord may incur by reason of Tenant's late or NSF payment. Any late charge, delinquent interest, or NSF fee due shall be paid with the current installment of Rent Landlord's acceptance of any late charge or NSF fee shall not constitute a waiver as to any default of Tenant. Landlord's right to collect a Late Charge or NSF fee shall not be deemed an extension of the date Rent is due under paragraph 4. or prevent Landlord from exercising any other rights and remedies under this agreement. and as provided by law. 1t. CONDITION OF PREMISES: Tenant has examined the Premises and acknowledges that Premise is clean and in operative condition. with the following exceptions: NO EXCEPTTONS Items listed as exceptions shall be dealt with in the following manner. 12. ZONING AND LAND USE: Tenant accepts the Premises subject to all local. state and federal laws, regulations and ordinances ( "Laws"). Landlord makes no representation or warranty that Premises are now or in the future will be suitable for Tenant's use. Tenant has made its own investigation regarding all applicable Laws. 13. TENANT OPERATING EXPENSES: Tenant agrees to pay for all utilities and services directly billed to Tenant No other axpeneee rill be cAarwed to tenant 14. PROPERTY OPERATING EXPENSES: A. Tenant agrees to pay its proportionate share of Landlord's estimated monthly property operating expenses, including but not limited to. common area maintenance, Consolidated utility and service bills, insurance and real estate taxes. based on the ratio of the square footage of the Premises to the total square footage of the rentable space in the entire property. OR B. 0 111 checked) Paragraph 14 does not apply. 16. USE: The Premises are for the sole use as Parking Lot No other use is permitted without Landlord's prior written consent. If any use by Tenant causes an increase in the premium on Landlord's existing property insurance. Tenant shall pay for the increased cost. Tenant will comply with all Laws affecting its use of the Premises. 16, RULESMEGULATIONS: Tenant agrees to Comply with all rules and regulations of Landlord (and, if applicable. Owner's Association) that are at any time posted on the Premises or delivered to Tenant. Tenant shall not. and shall ensure that guests and licensees of Tenant do not. disturb. annoy . endanger, or interfere with other tenants of the building or neighbors, or use the Premises for any unlawful purposes, including, but not limited to using, manufacturing, setting, storing, or transporting illicit drugs or other contraband, or violate any law or ordinance, or committing a waste or nuisance on or about the Premises. 17. MAINTENANCE: A. Tenant OR ❑ (If checked, Landlord) shall professionally maintain the Premises including heating, air conditioning, electrical, plumbing and water systems, if any, and keep glass, windows and doors in operable and safe condition Unless Landlord is checked. if Tenant fails to maintain the Premises. Landlord may contract for or perform such maintenance, and charge Tenant for Landlord's cost. B. Landlord ORS (If checked, Tenant) shall maintain the roof. foundation, exterior walls, common areas and Parking 1oc a11a11 be is Landlord's I ( nitials ( ) Tenant's Initials Copyright ® 1998 -2007, CALIFORNIA ASSOCIATION OF REALTORS® INC Reviewed by Date xaaon CL REVISED 04106 (PAGE 2 of 6) 00000mum COMMERCIAL LEASE AGREEMENT (CL PAGE 2 OF 6) Port Rmtauran V Rear parking lot of 2865 and 2867 E Coast hfvy, Corona del Premises: Mar, CA 92625 Date Jtzne 19 2009 18. ALTERATIONS: Tenant shall not make any alterations in or about the Premises, including installation of trade fixtures and signs. without Landlord's prior written consent, which shall not be unreasonably withheld. Any alterations to the Premises shall be done according to Law and with required permits. Tenant shall give Landlord advance notice of the Commencement date of any planned alteration, so that Landlord. at as option, may post a Notice of Non - Responsibility to prevent potential liens against Landlord's interest in the Premises. Landlord may also require Tenant to provide Landlord with lien releases from any contractor performing work on the Premises. 19. GOVERNMENT IMPOSED ALTERATIONS: Any alterations required by Law as a result of Tenant's use shall be Tenant's responsibility. Landlord shall be responsible for any Other alterations required by Law. 20. ENTRY: Tenant shall make Premises available to Landlord or Landlord's agent for the purpose of entering to make inspections, necessary of agreed repairs, alterations, or improvements. or to supply necessary or agreed services. or to show Premises to prospective or actual purchasers, tenants . mortgagees, lenders, appraisers, or contractors. Landlord and Tenant agree that 24 hours notice (oral or written) shall be reasonable and sufficient notice. In an emergency. Landlord or Landlord's representative may enter Premises at any time without prior notice. 21. SIGNS: Tenant authorizes Landlord to place a FOR SALE sign on the Premises at any time, and a FOR LEASE sign on the Premises within the 90 (or ® NA ) day period preceding the termination of the agreement. 22. SUBLETTINGIASSIGNMENT: Tenant shall not sublet or encumber all or any part of Premises. or assign or transfer this agreement or any interest in it, without the prior written consent of Landlord, which shall not be unreasonably withheld. Unless such consent is obtained. any subletting. assignment, transfer, or encumbrance of the Premises. agreement. or tenancy, by voluntary act of Tenant. operation of law. or otherwise, shall be null and void. and. at the option of Lantllortl, terminate this agreement. Any proposed sublessee. assignee, or transferee shall submit to Landlord an application and credit information for Landlord's approval, and, if approved, sign a separate written agreement with Landlord and Tenant. Landlord's consent to any one sublease, assignment, or transfer, shall not be construed as consent to any subsequent sublease. assignment. or transfer. and does not release Tenant of Tenant's obligation under this agreement. 23. POSSESSION: If Landlord is unable to deliver possession of Premises on Commencement Date, such date shalt be extended to the date on which possession is made available to Tenant. However, the expiration date shall remain the same as specified in paragraph 2. If Landlord is unable to deliver possession within 60 (or❑ ) calendar days after the agreed Commencement Date, Tenant may terminate this agreement by giving written notice to Landlord, and shall be refunded all Rent and security deposit paid. 24. TENANT'S OBLIGATIONS UPON VACATING PREMISES: Upon termination of agreement. Tenant shalt (i) give Landlord all copies Of ail keys or opening devices to Premises, including any common areas: (ii) vacate Premises and surrender it to Landlord empty of all persons and personal property; (iii) vacate all parking and storage spaces, Irv) deliver Premises to Landlord in the same condition as referenced in paragraph 11: (v) clean Premised (vi) give written notice to Landlord of Tenant's forwarding address: and (vii) All improvements installed by Tenant, with or without Landlord's consent, become the property Of Landlord upon termination. Landlord may nevertheless require Tenant to remove any such improvement that did not exist at the time possession was made available to Tenant. 25. BREACH OF CONTRACT/EARLY TERMINATION: In event Tenant, prior to expiration of this agreement. breaches any obligation in this agreement. abandons the premises. or gives notice of tenant's intent to terminate this tenancy prior to its expiration. in addition to any obligations established by paragraph 24. Tenant shall also be responsible for lost rent, rental commissions. advertising expenses, and painting costs necessary to ready Premises for re- rental. Landlord may also recover from Tenant: (i) the worth, at the lime of award, of the unpaid Rent that had been earned at the time of termination: (ii) the worth, at the time of award. of the amount by which the unpaid Rent that would have been earned after expiration until the time of award exceeds the amount Of such rental loss the Tenant proves could have been reasonably avoided: and (iii) the worth, at the time of award, of the amount by which the unpaid Rent for the balance of the term after the time of award exceeds the amount of such rental loss that Tenant proves could be reasonably avoided. Landlord may elect to continue the tenancy in effect for so long as Landlord does not terminate Tenants right to possession, by either written notice of termination of possession or by relenting the Premises to another who takes possession. and Landlord may enforce all Landlord's rights and remedies under this agreement, including the right to recover the Rent as it becomes due. 26. DAMAGE TO PREMISES: If, by no fault of Tenant Premises are totally or partially damaged or destroyed by fire. earthquake, accident or other casualty, Landlord shall have the right to restore the Premises by repair or rebuilding. If Landlord elects to repair or rebuild, and is able to complete such restoration within 90 days from the date of damage. subject to the terms of this paragraph. this agreement shall remain in full force and effect. If Landlord is unable to restore the Premises within this time, or if Landlord elects not to restore. then either Landlord or Tenant may terminate this agreement by giving the other written notice. Rent shall be abated as of the date of damage. The abated amount shall be the current monthly Base Rent prorated on a 30 -day basis. If this agreement is not terminated, and the damage is not repaired. then Rent shall be reduced based on the extent to which the damage interferes with Tenant's reasonable use of Premises. If damage occurs as a result of an act of Tenant or Tenant's guests. only Landlord shall have the right of termination, and no reduction in Rent shall be made. 27. HAZARDOUS MATERIALS: Tenant shall not use, store. generate. release of dispose of any hazardous material on the Premises or the property of which the Premises are part. However, Tenant is permitted to make use of such materials that are required to be used in the normal course of Tenant's business provided that Tenant complies with all applicable Laws related to the hazardous materials. Tenant is responsible for the cost of removal and remediation, or any clean -up of any contamination caused by Tenant. 28. CONDEMNATION: If all or part of the Premises is condemned for public use. either party may terminate this agreement as of the date possession is given to the condemner All condemnation proceeds, exclusive of those allocated by the condemner to Tenant's relocation costs and trade fixtures. belong to Landlord. 29. INSURANCE: Tenant's personal property, fixtures, equipment, inventory and vehicles are not insured by Landlord against loss or damage due to fire. theft. vandalism, rain, water. criminal or negligent acts of others, or any other cause. Tenant is to carry Tenant's own property insurance to protect Tenant from any such loss. In addition, Tenant shall carry liability insurance in an amount of not less than S z, 000, 000. 00 . Tenant's liability insurance shall name Landlord and landlord's agent as additional insured. Tenant, upon Landlords request, shall provide Landlord with a certificate of insurance establishing Tenant's compliance. Landlord shall maintain liability insurance insuring Landlord, but not Tenant, in an amount of at least 5 2, 000, 000.00 , plus property insurance in an amount sufficient to cover the replacement cost of the property. Tenant is advised to carry business interruption Insurance in an amount at least sufficient to cover Tenant's complete rental obligation to Landlord. Landlord is advised to obtain a policy of rental loss insurance. Both Landlord and Tenant release each other. and waive their respective rights to subrogatron against each other. for loss or damage covered by insurance. Landlord's Initials 1 ) ( ) Tenant's Initials ( ) ( ) Copyright © 1998 -2007, CALIFORNIA ASSOCIATION OF REALTORS& INC. Revkwed by bate eww KU:wc CL REVISED D4106 (PAGE 3 of 6) COMMERCIAL LEASE AGREEMENT (CL PAGE 3 OF 6) Mn Rvrauran G U Rear parking lot of 2865 and 2867 E Coast Hwy, Corona del Premises: Mar, CA 92625 Date June 19, 2009 30. TENANCY STATEMENT (ESTOPPEL CERTIFICATE): Tenant shall execute and return a tenancy statement (estoppel certificate). delivered to Tenant by Landlord or Landlord's agent. within 3 days after its receipt The tenancy statement shall acknowledge that this agreement is unmodified and in full force, or in full force as modified, and state the modifications Failure to comply with this requirement: (I) shall be deemed Tenant's acknowledgment that the tenancy statement is true and correct. and may be relied upon by a prospective lender or purchaser, and (ii) may be treated by Landlord as a material breach Of this agreement. Tenant shall also prepare, execute. and deliver to Landlord any financial statement (which will be held in confidence) reasonably requested by a prospective lender or buyer. 31. LANDLORD'S TRANSFER: Tenant agrees that the transferee of Landlord's interest shall be substituted as Landlord under this agreement. Landlord will be released of any further obligation to Tenant regarding the security deposit. only if the security deposit is returned to Tenant upon such transfer . or if the security deposit is actually transferred to the transferee. For all other obligations under this agreement. Landlord is released of any further liability to Tenant. upon Landlord's transfer 32. SUBORDINATION: This agreement shall be subordinate to all existing liens and. at Landlord's option, the lien of any first deed of trust or first mortgage subsequently placed upon the real property of which the Premises are a part, and to any advances made on the security of the Premises. and to all renewals, modifications, consolidations, replacements, and extensions. However, as to the lien of any deed of trust or mortgage entered into after execution of this agreement, Tenant's right to quiet possession of the Premises shall not be disturbed if Tenant is not in default and so long as Tenant pays the Rent and observes and performs all of the provisions of this agreement, unless this agreement is otherwise terminated pursuant to its terms. If any mortgagee, trustee, or ground lessor elects to have this agreement placed in a security position prior to the lien of a mortgage, deed of trust, or ground lease, and gives written notice to Tenant, this agreement shall be deemed prior to that mortgage. deed of trust. or ground lease. or the date of recording. 33. TENANT REPRESENTATIONS; CREDIT: Tenant warrants that all statements in Tenant's financial documents and rental application are accurate. Tenant authorizes Landlord and Brokers) to Obtain Tenant's credit report at time of application and periodically during tenancy in connection with approval. modification, or enforcement of this agreement. Landlord may Cancel this agreement: (i) before occupancy begins, upon disapproval of Me credit report(s); or (ii) at any time, upon discovering that information in Tenants application is false. A negative credit report reflecting on Tenant's record may be submitted to a credit reporting agency. if Tenant fails to pay Rent or comply with any other obligation under this agreement. 34. DISPUTE RESOLUTION: A. MEDIATION: Tenant and Landlord agree to mediate any dispute or claim arising between them out of this agreement.. or any resulting transaction. before resorting to arbitration or court action, subject to paragraph 348(2) below. Paragraphs 34B(2) and (3) apply whether or not the arbitration provision is initialed. Mediation fees, if any, shall be divided equally among the parties Involved. If for any dispute or claim to which this paragraph applies, any party commences an action without first attempting to resolve the matter through mediation, or refuses to mediate after a request has been made, then that parry shall not be entitled to recover attorney fees, even if they would otherwise be available to that party in any such action. THIS MEDIATION PROVISION APPLIES WHETHER OR NOT THE ARBITRATION PROVISION IS INITIALED. S. ARBITRATION OF DISPUTES: (1) Tenant and Landlord agree that any dispute or claim in Law or equity arising between them out of this agreement or any resulting transaction, which is not settled through mediation, shall be decided by neutral, binding arbitration, including and subject to paragraphs 348(2) and (3) below. The arbitrator shall be a retired judge or justice, or an attorney with at least 5 years of real estate transactional law experience, unless the parties mutually agree to a different arbitrator, who shall render an award in accordance with substantive California Law. In all other respects, the arbitration shall be conducted in accordance with Part Ill, Title 9 of the California Code of Civil Procedure. Judgment upon the award of the arbitrators) may be entered in any court having jurisdiction. The parties shall have the right to discovery in accordance with Code of Civil Procedure §1283.05. (2) EXCLUSIONS FROM MEDIATION AND ARBITRATION: The following matters are excluded from Mediation and Arbitration hereunder (i) a judicial or non judicial foreclosure or other action or proceeding to enforce a deed of trust. mortgage, or installment land sale contract as defined in Civil Code §29851 (ii) an unlawful detainer action: (iii) the filing or enforcement of a mechanics Lien: (iv) any matter that is within the jurisdiction of a probate. small claims, or bankruptcy court; and (v) an action for bodily injury or wrongful death, or for latent or patent defects to which Code of Civil Procedure §337.1 or §337.15 applies. The filing of a court action to enable the recording of a notice of pending action, for order of attachment. receivership. injunction, at other provisional remedies. shall not constitute a violation of the mediation and arbitration provisions. (3) BROKERS: Tenant and Landlord agree to mediate and arbitrate disputes or claims involving either or both Brokers, provided either or both Brokers shall have agreed to such mediation or arbitration, prior to, or within a reasonable time after the dispute or claim is presented to Brokers. Any election by either or both Brokers to participate in mediation or arbitration shall not result in Brokers being deemed parties to the agreement. "NOTICE: BY INITIALING IN THE SPACE BELOW YOU ARE AGREEING TO HAVE ANY DISPUTE ARISING OUT OF THE MATTERS INCLUDED IN THE 'ARBITRATION OF DISPUTES' PROVISION DECIDED BY NEUTRAL ARBITRATION AS PROVIDED BY CALIFORNIA LAW AND YOU ARE GIVING UP ANY RIGHTS YOU MIGHT POSSESS TO HAVE THE DISPUTE LITIGATED IN A COURT OR JURY TRIAL. BY INITIALING IN THE SPACE BELOW YOU ARE GIVING UP YOUR JUDICIAL RIGHTS TO DISCOVERY AND APPEAL, UNLESS THOSE RIGHTS ARE SPECIFICALLY INCLUDED IN THE 'ARBITRATION OF DISPUTES' PROVISION, IF YOU REFUSE TO SUBMIT TO ARBITRATION AFTER AGREEING TO THIS PROVISION, YOU MAY BE COMPELLED TO ARBITRATE UNDER THE AUTHORITY OF THE CALIFORNIA CODE OF CIVIL PROCEDURE. YOUR AGREEMENT TO THIS ARBITRATION PROVISION IS VOLUNTARY." "WE HAVE READ AND UNDERSTAND THE FOREGOING AND AGREE TO SUBMIT DISPUTES ARISING OUT OF THE MATTERS INCLUDED IN THE 'ARBITRATION OF DISPUTES' PROVISION TO NEUTRAL ARBITRATION." I Landlord's Initials I _ Tenant's Initials /*2Vi ! I M Landlord's Initials ) ( ) Tenant's Initials ( ) ( ) Copyright 01998.2007, CALIFORNIA ASSOCIATION OF REALTORS®, INC. FRevewed by Oate IDA �mnox CL REVISED 04106 (PAGE 4 of 6) 0PPmrw11 COMMERCIAL LEASE AGREEMENT (CL PAGE 4 OF 6) hen Rcsrxursn M Rear parking 2ot of 2865 and 2867 E Coast Hwy, Corona del Premises: Mar, CA 92625 Date June 19, 2009 35. JOINT AND INDIVIDUAL OBLIGATIONS: If there is more than one Tenant. each one shall be individually and completely responsible for the performance of all obligations of Tenant under this agreement, jointly with every other Tenant, and individually. whether or not in possession. 36. NOTICE: Notices may be served by mail, facsimile, or courier at the following address or location, or at any other location subsequently designated: Landlord: Legacy Property Manage t Tenant Port Restaurant / Ali fadeb 400 Heliotrope Ave Tustin CA 92683 Corona del Max, CA 92625 Notice is deemed effective upon the earliest of the following: (i) personal receipt by either party or their agent; (ii) written acknowledgement of notice: or (iii) 5 days after mailing notice to such location by first class mad. postage pre -paid. 37. WAIVER: The Waiver of any breach shall not be construed as a continuing waiver of the same breach or a waiver of any subsequent breach. 38. INDEMNIFICATION: Tenant shall indemnify, defend and hold Landlord harmless from all claims, disputes, litigation. judgments and attorney fees arising out of Tenant's use of the Premises. 39. OTHER TERMS AND CONDITIONSISUPPLEMENTS: 1. Prior to commencement of Iaasa, Tenant agrees to provide landlord with certificate of General Liabilty T==aace naming LEGACY PROPERTY )ANAGZMWT, BOB AND MARILYN WWZEY, JASON N MJORE SNZRLEY P MCCUISTION PIANTANZDA AND BRZAN C PZARTANZDA SUCCESSOR CO- TRUSTEE AS ADDITIONAL INSURED BY MEANS OF AN AIIDORCENEl AT LEAST AS BROAD AS THE INSURANCE SERVICE ORGANIZATIONS'S "ADDITIONAL ZNSE3=-bWA4iRS OR LESSORS OF PRENSSES ". ENDORC24WT AND COVERAGE SHALL ALSO BE EXTENDED TO INCLUI.E DAbAGE CAUSED BY NEAT S)= OR FMIMS FROM HOSTILE FIRE. THE POLZCY SHALL NOT CONTAIN ANY- INSURED EXCLUSZONS AS ffirliZ= ZNSEM= PERSONS OR ORCJNZZATIONS BUT SHALL INCLUDE COVERATGE FOR LIABILITY ASSIA1D UNDER THIS LEASE AS ^INSURED CONTRACT" FOR THE PERFORMANCE OF LESSEE'S INDEWITY OBLIGATZONS UNDER TNZS ZEASE. FAILURE BY TENANT To MAINTAIN TNZS =Ill LIABILITY ZNSURANGE WITH ADDITIONAL NAWD ZNSUP" SHALL CONSTZTUE A BREACH AND TERMINATE THIS AGREEMENT IMMEDIATELY. 2. Tenant agrees to deliver parking lot in clean condition by 7AH "CZ day. All beverage containers and cigezett butts are Co be removed at to ca expense. Failure to comply by tenant shall be deemed breach of eeatract Landlord rill notify tenant in vritinor of any violation of this =Oviaion and a 2nd violation rill be deemed a breach of c=tract and termimte this leas 3 Ljtndl ozd reserves right to issue a 30 day notice to tenant at "y time during this 1"38 period The following ATTACHED supplementsrexhibits are incorporated in this agreement. 40. ATTORNEY FEES: In any action or proceeding arising out of this agreement, the prevailing patty between Landlord and Tenant shall be entitled to reasonable attorney fees and costs from the non - prevailing Landlord or Tenant, except as provided in paragraph 34A. 41. ENTIRE CONTRACT: Time is of the essence. All prior agreements between Landlord and Tenant are incorporated in this agreement which constitutes the entire contract. It is intended as a final expression of the parties' agreement, and may not be contradicted by evidence of any prior agreement or contemporaneous oral agreement. The parties further intend that this agreement constitutes the complete and exclusive statement of its terms, and that no extrinsic evidence whatsoever may be introduced in any judicial or other proceeding, if any, involving this agreement. Any provision of this agreement that Is held to be invalid shall not affect the validity or enforceability of any other provision in this agreement. This agreement shall be binding upon, and inure to the benefit Of the heirs, assignees and successors to the pares. 42. BROKERAGE: Landlord and Tenant shall each pay to Broker(S) the fee agreed to. if any, in a separate written agreement. Neither Tenant nor Landlord has utilized the services of. or for any other reason owes compensation to, a licensed real estate broker (Individual or corporate), agent. finder, or other entity, other than as named in this agreement, in connection with any act relating to the Premises. including. but not limited to, inquiries. introductions. consultations, and negotiations leading to this agreement. Tenant and Landlord each agree to indemnify, defend and hold harmless the other, and the Brokers specified herein, and their agents. from and against any costs. expenses, or liability for compensation clammed inconsistent with the warranty and representation in this paragraph 42. 43. AGENCY CONFIRMATION: The following agency relationships are hereby confirmed for this transaction. Listing Agent- No Real Estate Brokerage involved (Print Firm Name) is the agent of (check one). ❑ the Landlord exclusively: or C1 both the Tenant and Landlord. Selling Agent: No Real Estate Brokerage Involved _ (Print Firm Name) (if not same as Listing Agent) is the agent of (check one): ❑ the Tenant exclusively; or ❑ the Landlord exclusively: or G both the Tenant and Landlord. Real Estate Brokers are not parties to the agreement between Tenant and Landlord. Landlord's Initials ( ) ( ) Tenant's Initials ( C ) ( ) Copyright 01998 -2007, CALIFORNIA ASSOCIATION OF REALTORS®.. INC. Rewewed by Date -waaasmt CL REVISED 04106 (PAGE 5 of 6) OROPT T, COMMERCIAL LEASE AGREEMENT (CL PAGE 5 OF 6) hart Reslauran s 1� Rear parking lot of 2865 and 2867 E Coast Hwy, Corona del - Premises: Date June 19, 2009 Landlord and Tenant acknowledge and agree that Brokers: (i) do not guarantee the condition of the Premises; (ii) cannot verify representations made by others; (iii) will not verify zoning and land use restrictions; (iv) cannot provide legal or tax advice; (v) will not provide other advice or information that exceeds the knowledge, education or experience required to obtain a real estate license. Furthermore, if Brokers are not also acting as Landlord in this agreement, Brokers: (vi) do not decide what rental rate a Tenant should pay or Landlord should accept; and (vii) do not decide upon the length or other terms of tenancy. Landlord and Tenant agree that they will seek legal, tax, insurance, and other desired assistance from appropriate professionals. Tenant X L ��-� Date Port Rastanrant / Ali Eadeh (Print Name) Address 2865 and 2867 E Coast Hwy City Corona del Mar State C_ Zip 92625 Tenant Date (Print Name) Address City State Zip Date L — /'f -6 ! State C— Zip 92681 Landlord Date (owner or agent with authority to enter into this agreement) Address City State Zip Agency relationships are confirmed as above. Real estate brokers who are not also Landlord in this agreement are not a party to the agreement between Landlord and Tenant Real Estate Broker (Leasing Firm) so Xtoal Estate Arokatraaa Znvolvrad ORE Lic. # By Address Fax ORE Lrc. # Date City State Zip E-mail Real Estate Broker (Listing Firm) No Real Estate Hrokaraaa Znvolved ORE Llc. # By Address ORE Lic. # Date City Telephone Fax Email State Zip THIS FORM HAS BEEN APPROVED BY THE CALIFORNIA ASSOCIATION OF REALTORS® (C.A.R) NO REPRESENTATION IS MADE AS TO THE LEGAL VALIDITY OR ADEQUACY OF ANY PROVISION IN ANY SPECIFIC TRANSACTION A REAL ESTATE BROKER IS THE PERSON QUALIFIED TO ADVISE ON REAL ESTATE TRANSACTIONS. IF YOU DESIRE LEGAL OR TAX ADVICE, CONSULT AN APPROPRIATE PROFESSIONAL, This form is available for use by the entire real estate industry It is not intended to identify the user as a REALTOR® REALTORS is a registered collective membersnip man, wh,ch may be used only by members of the NATIONAL ASSOCIATION OF REALTORS® who subscr,be torts Code of Ethics Published and Distributed by: REAL ESTATE BUSINESS SERVICES, INC C a subsidiary of the Cairomia Association of REALTORS® ` 525 South Virgil Avenue, Los Angeles California 90020 Reviewed b Date rg g Y oori'earu CL REVISED 04106 (PAGE 6 OF 6) COMMERCIAL LEASE AGREEMENT (CL PAGE 6 OF 6) Pon Rotauran _ It Attachment No. PC 13 Correspondence Received "I, August 13, 2009 Planning Commission, City of Newport Beach Planning Department, Building C, 2n° Floor 3300 Newport Boulevard Newport Beach, CA 92663 Re: Proposed Amendment to Use Permit No. 1566 Port Restaurant & Bar - 440 Heliotrope Ave, Corona Del Mar Public Hearing - August 20, 2009 at 6:30 p.m., Dear Planning Commissioners: I have been a resident of Heliotrope Avenue, Corona Del Mar for approximately thirty -five (35) years. I live in the first block of houses on the ocean side of PCH. Approximately six years ago my daughter, her husband and I built a home on the property where we all live along with their family. This is our home! Over the years various eating/drinking establishments have been located at the 440 Heliotrope Avenue location. The first that I remember is the Pirates Inn which was a family restaurant. Unfortunately that is not the case with the Port Restaurant and Bar. Since its inception, the Port Restaurant & Bar has made no effort to contain the noise within its doors or request its patron to leave quietly when they exit into the residential neighborhood. The problems have become worse since the Port is apparently not succeeding as a restaurant and is trying to survive as a bar /night club. The bar /nightclub draws a young, heavy drinking and boisterous clientele. There is yelling that can be heard from the patio /smoking area, from in front of the bar and in the streets. Especially after 10:00 p.m, there is yelling, screaming, fighting, revving of engines and slamming of doors up and down the street. This continues until the restaurant closes, which is now around 12 :00 midnight. The worse nights are Thursday, Friday and Saturday, however, this same disturbance can be heard throughout the work week, especially when the Port has their "private parties ". If allowed to stay open longer, this disturbance of the peace will just continue until the early hours of the morning. How can residents, families and children sleep for work, school and a productive life with a night club in the middle of their neighborhood? Loud music from the Port has also been an extreme problem. The music has been either live or with a DJ and can be heard for blocks. Due to the nature of the music, there is a lot of "base" which can not only be heard but can also be felt. The center courtyard and back portion of the Port is open to the air so the noise rises and also bounces off the high back wall of the Port Theater. The sound and the amplification can be heard and felt through walls and windows the entire night until closing, which is oftentimes after midnight. My bedroom suite, which has glass French doors and flanking windows, faces the street and I can hear the loud music and amplification whenever the Port Bar has had live or DJ music. Any valid noise study should include readings from my second story front balcony. The same loud music and amplification can also be heard from other bedrooms on the second floor on the Port Bar side. If allowed to have a permit for "live music" and longer hours, this loud music and amplification will be heard V, Planning Commission August 13, 2009 Page 2 and felt into the early morning hours. There will be no peace or tranquility for the residents on and surrounding the 400 block of Heliotrope Avenue. The nature and type of the music is just another example of the Port attempting to survive as a nightclub. However, not only does this disturb the peace of a residential neighborhood, it also brings a loud, boisterous heavy drinking crowd into our Corona Del Mar "Village" neighborhood. What has happened to the "village" theme and atmosphere that Corona Del Mar was trying to foster? A night club within the residential "village" certainly does not promote or preserve this image or atmosphere! There is no other bar in Corona Del Mar that fronts on to a residential street with homes and families and childrenM All others front on to PCH. The current owner of the Port Restaurant & Bar was put on notice of the restrictions of the use permit when he purchased the property. However, he has spent the last one and one half years violating that use permit. Over the past one and one half years I have had to call the police dozens and dozens of times to report the loud music, yelling, screaming, fighting, revving engines and slamming of doors. I have also talked with and e- mailed your code enforcements officers in this regard numerous times. The property owners and/or residents on Heliotrope Avenue and Second Avenue in proximity to the Port Restaurant & Bar have relied upon the restriction of the current use permit to maintain the peace and livability of their homes and neighborhood. It would be extremely unfair to those property owners and/or residents for the City of Newport Beach to now allow the Port Restaurant and Bar to become a night club which will disturb the peace, endanger the safety of families and children, and lower the property values. The proposed changes to the floor plan of the Port will increase the effect of the loud drinking patrons and loud music, as there is a proposed "open air" dance floor which will just further amplify the music and sound. I do not understand how the City can allow a permit for longer hours, live music and an open air dance floor when it is a given that it will result in the disturbance of the peace. How can the City "permit" the disturbance of the peace in a residential neighborhood? Thank you for your attention to this critical situation for the residents of the 400 block of Heliotrope Avenue, the surrounding area and the "village" of a el Mar. encourage you to follow the "residents first" commitment of the Vision tement and-general qlan of Newport Beach and its "village" of Corona Del Mar. I respect ly i ga6st that y unani ously deny the Amendment to Use Permit No. 1566 for the Port Re rant and B nt' ely. yours, 429 Heliotrope Avenue Corona Del Mar, CA 92645 q) Murillo, Jaime From: Shadan Shamloo Ishadan99 @gmail.com] Sent: Thursday, August 13, 2009 11:00 PM To: Murillo, Jaime Cc: info @portedm.com Subject: Port Restaurant Dear Mr. Murillo i understand [here is a hearing for the fort Restaurant, and I really felt that I had to give me input on the mailer.I am a resident in Corona Del Mar, mid I have been going to The Port since its opening, as 'I had gone to the other restaurants before it. However Port has something special about it! I go there with my mom to wind down after work, and be around gwtlity people. the Port really caters m any age with its ambiance of music, and the great architecture and ambiance. The foal is great -I go there for Brunch and dinner, and repeatedly I have asked the owner if they could open for lunch. Corona del Mar is a great place for.nice restaurants, and i think the PORT realty brings in quality people from CDM, as well as our neighbors in Laguna beach and Newport Beach. Its presence in many magazines and all of its positive advertising bring a large crowd to Corona Del :Mar. A friend of mine is a very close neighbor of the PORT and she nays that she never is interrupted by its crowd because of its secluded location. The music is never too load, and really gives the restaurant a good vibe. I think Corona del Mar would be missing a lot if it didn't have The Pont! "thank you for your time, - Shadan Shamloo 2500 Lighthouse Cane Corona Del Mar. CA 92625 9) 735 -9067 ai Murillo, Jaime From: lisa lisaszzz [lisa.catherine7 @gmail.com] Sent: Thursday, August 13, 2009 7:41 PM To: Murillo, Jaime Subject: Port Restaurant Hi to the Planning Commission, I love the fact that Port is a neighborhood restaurant. One of the very few left. I remember years ago when the spot was called Trees. Corona Del Mar is a unique place, and Port is a highlight. People come from all over the area. I understand that close neighbors want their privacy and are concerned about noise and traffic issues. Hopefully everyone can come to an agreement that will take all of that into consideration. I think it can be done in a way that all are happy. Thanks, Lisa Bue 15 Murillo, Jaime From: skiwrp @aol.com Sent: Thursday, August 13, 2009 6:06 PM To: Murillo, Jaime Subject: Port Restaurant I am a local 29 year resident of Newport Beach and live @ 71 Linda Isle. I have been a regular customer since the current owners took over and have frequented this establishment under at least 3 previous owners. I have found the Port to be a great place to meet ,mingle and enjoy great food with friends. The ownership is first class and almost always on premises. With rare exceptions even as a 60 yr old J find the cliental to be a fun loving but well behaved group, and a comfortable atmosphere. It is a nice addition to the area and a pleasent place to visit. I hope what they are requesting is approved and the can continue to grow and prosper. Bill Piercey Murillo, Jaime From: Richard Hart [hart richard@yahoo.com] Sent: Thursday, August 13, 2009 7:12 PM To: Murillo, Jaime Subject: Port Resturant Initiatives Dear Mr. Jaime Murillo, I've reviewed the Port Restaurant Project Details http: / /i)ortcdm.com /project.html and signed their On -Line Petition hq:// www. r)etitiononline .com/portedm2 /petition.httnl. This email is to show you my support for all Port Restaurant initiatives. Mr. Murillo, for over one year I've enjoyed Corona Del Mar's finest 4 -Star Restaurant, Port www.PortCDM.com. I've always been welcomed by all Port staff, including the owner himself I believe Port Restaurant is an asset to Corona Del Mar, so anything that improves Port will ultimately prove to be Win -Win- Win for the people of CDM, the City and Port. Sincerely, Richard Hart 0 Murillo, Jaime From: Dan Tarulli [dan @tarullitire.com] Sent: Thursday, August 13, 2009 5:46 PM To: Murillo, Jaime Cc: info @port.com Subject: The Port Restaurant As a resident of Corona Del Mar I am requesting that the City of Newport Beach approve any plans to expand and improve their facility. The Port has become an important location that many local residents enjoy and feel comfortable spending time. The restaurant is very supportive of the community. Dan Tarulli CEO Tarulli Tire Inc mobile: 714 883 5722 email: Danu,TarulliTire.com website: www.tarullitire.com q� Murillo, Jaime From: Babak Khorashadi [bkhorashadi @yahoo.com] Sent: Thursday, August 13, 2009 2:22 PM To: Murillo, Jaime Cc: info @portodm.com Subject: Port Hi Mr. Murillo My name is Babak Khorashadi and I am a regular at Port. Its a place where locals get togather and have a good time. We just wish it can stay open for us till 2:00am like other clubs around port such as Landmarke, quite women, The place, and etc.. q9 Murillo, Jaime From: Alan.Ayria @Fluor.com Sent: Thursday, August 13, 2009 2:31 PM To: Murillo, Jaime Cc: info @portcdm.com Subject: Port Restaurant & Bar Dear Jamie, I have been going to Port Restaurant 2 -3 times a week since it opened a couple of years ago. In fact, these days, Port is the place where my friends and I go to relax, eat good food, have a laugh and enjoy the music For what I need and want in a restaurant & bar, Port has everything. I feel safe and secure at Port, it has a cool ambience and friendly staff. It is truly unique in Orange County. Port is well liked by everyone who has ever been there. The only draw -back is how early it closes. If Port is allowed to stay open a bit longer, it would bring more enjoyment to the customers while helping the owner with higher revenues, and thus, higher tax revenues for Corona Del Mar -- a win -win- win for all involved. I strongly urge you to approve Port's application. regards, Alan Alan A. Ayria Vice President Fluor Energy & Chemicals Group office: +1 949 349 4881 mobile: +1 949 887 2488 ------------------------------------------------------------ The information transmitted is intended only for the person or entity to which it is addressed and may contain proprietary, business - confidential and /or privileged material. If you are not the intended recipient of this message you are hereby notified that any use, review, retransmission, dissemination, distribution, reproduction or any action taken in reliance upon this message is prohibited. If you received this in error, please contact the sender and delete the material from any computer. Any views expressed in this message are those of the individual sender and may not necessarily reflect the views of the company. -------------------------------- ---------------------- -- - --- 166 Murillo, Jaime From: SC Isichevere @yahoo.com] Sent: Thursday, August 13, 2009 3:48 PM To: Murillo, Jaime Cc: info @portcdm.com Subject: Support Port Hello Jaime: My name is Sara and I am a weekly Port customer. Sometimes I'll visit more than once a week. The place is cozy and friendly oriented. The food is great and all his employees, owner included and very professional and friendly. I love to go there and network with other professionals and entrepreneurs like me. The entertainment is fun, variable and very desent. It is funny that a lot of time when I am at the front, I think the place is close, because is so quiet. It is not until I get into the place that I realize that is busy and the entertainment is on. So don't really know what it is all this about. I love to go there and have a good and healthy time. I don't live in Corona Del Mar, I live in Irvine, but Port is one of the few places that I feel safe and confortable to go and have a good time. Hope this helps, please look at the facts. Thanks for your attention. If you have any questions, please feel free to contact me. Biggest Anti Agin_g Breakthrough, click here Sara Chevere 714- 651 -2253 www.titenusecret.com i (a 1 Varin, Ginger From: Matt Gudorf [mgudorf@uci.edu] Sent: Thursday, August 13, 2009 1:27 PM To: Brown, Leilani; Varin, Ginger Subject: Port Restaurant Permit changes August 20th Planning Commission Meeting Attachments: Port.doc RE: Port Restaurant Permit changes August 20th Planning Commission Meeting Please distribute to the planning commission prior to 8/20/2009 and add to the official record for public comment. To the Newport Beach Planning Commission: 8/13/2009 Asa resident of 432 '/z Heliotrope Ave in Corona Del Mar I am writing to express my concern over and opposition to, the change of use / permit amendment for Port Restaurant. The neighbors, working in conjunction with the Newport Beach Police Department and Matt Cosylion in Code Enforcement have been engaged in an ongoing struggle with noise, traffic, and trash. Port restaurant is seeking to expand their operation to live music, increased operating hours, and valet service. As a resident who must live with the late night disturbance day in and day out I am strongly opposed to any expansion of their current operation. Mr. Cosylion and the Newport Beach Police Department have done an outstanding job of enforcing the current code/permitting which has eliminated the D7, live music, and operations outside of permitted hours and use which Port Restaurant was in constant violation of and now seeks to reinstate. Police records will no doubt show that once Mr Cosylion enforced the current permitted use, the calls for service to NBPD for noise associated with Port Restaurant dropped significantly The late night operation is not limited to just the noise coming from the restaurant itself please remember that the slamming car doors, people yelling, tires squealing, and commotion ruin the peaceful neighborhood that we have come to expect from living in Corona Del Mar. The current operation ends at 12 midnight but patrons can linger in the area for up to an hour. Increasing operations by an hour will only cause this problem to extend further into the night. The expanded operating hours also swing the clientele and atmosphere from being a restaurant to that of a nightclub or lounge. The establishment is surrounded by homes and not suited for such use. None of the neighbors are unreasonable people, none of us mind a restaurant tucked into our quite neighborhood what we do mind is a bar/ lounge masquerading as a restaurant. Expansion plans to contain the live music noise to the restaurant do not remediate the noise from the center patio that patrons use to smoke. The noise from this area alone can be heard throughout the neighborhood every Thursday, Friday, and Saturday night. The slamming car doors, trash, cab traffic, and revving engines that we have had to deal with over and over can not be stopped by their build out. Matt Gudorf Resident 432 '/1 Heliotrope Ave, Corona Del Mar CA 92625 W Varin, Ginger From: Angela Kralovec [amkralovec@yahoo.com] Sent: Thursday, August 13, 2009 3:08 PM To: Varin, Ginger; Brown, Leilani Subject: Port Restaurant Discussion Note: Please include this in the public record and distribute to all members of the planning commission prior to the August 20th meeting. As a resident of 438 '% Goldenrod Ave in Corona Del Mar I am writing to express my concern over, and opposition to, the change of use / permit amendment for Port Restaurant. The neighbors, working in conjunction with the Newport Beach Police Department and Matt Cosylion in Code Enforcement have been engaged in an ongoing struggle with noise, traffic, and trash. Port restaurant is seeking to expand their operation to live music, increased operating hours, and valet service. As a resident who must live with the late night disturbance day in and day out I am strongly opposed to any expansion of their current operation. Mr. Cosylion and the Newport Beach Police Department have done an outstanding job of enforcing the current code/permitting which has eliminated the DJ, live music, and operations outside of permitted hours and use which Port Restaurant was in constant violation of and now seeks to reinstate. Police records will no doubt show that once Mr Cosylion enforced the current permitted use, the calls for service to NBPD for noise associated with Port Restaurant dropped significantly. I cannot tell you how many times I have been kept up or woken up in the night duet to excessive noise from the restaurant and its patrons. The late night operation is not limited to just the noise coming from the restaurant itself please remember that the slamming car doors, people yelling, tires squealing, and commotion ruin the peaceful neighborhood that we have come to expect from living in Corona Del Mar. The current operation ends at 12 midnight but patrons can linger in the area for up to an hour. Increasing operations by an hour will only cause this problem to extend further into the night. The expanded operating hours also swing the clientele and atmosphere from being a restaurant to that of a nightclub or lounge. The establishment is surrounded by homes and not suited for such use. We are not trying to be unreasonable. None of us mind a restaurant tucked into our quiet neighborhood. What we do mind is a bar/ lounge /nightclub masquerading as a restaurant. Expansion plans to contain the live music noise to the restaurant do not remediate the noise from the center patio that patrons use to smoke. The noise from this area alone can be heard throughout the neighborhood every Thursday, Friday, and Saturday night and sometimes on weekdays as well. The slamming car doors, trash, cab traffic, and revving engines that we have had to deal with over and over will only get worse with their proposal. Angela Kralovec Resident of 438 1/2 Goldenrod Ave. From CHAPTER 20.82 EATING AND DRINKING ESTABLISHMENTS 10 B. Required Findings for Bars and Cocktail Lounges. In order to approve a use permit for the establishment of any bar or cocktail lounge, the Planning Commission shall make the following findings: 2. Establishment, maintenance or operation of the use will not, under the circumstances of the particular case, be detrimental to the health, safety, peace, comfort and general welfare of persons residing or working in the neighborhood or injurious to property or improvements in the area The extended hours and amplified live or DJ music directly affects the peace, comfort, and general welfare of persons residing in the neighborhood. Id