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HomeMy WebLinkAbout1922 - APPROVED CONDITIONAL USE PERMIT UP2011-010 AND VA2913-006_2138 NEWPORT BLVDRESOLUTION NO. 1922 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH APPROVING CONDITIONAL USE PERMIT NO. UP2011 -010 AND VARIANCE NO. VA2013 -006 TO MODIFY VALET SERVICE, OPENING HOURS, CLOSING HOUR OF THE OUTDOOR DINING AREA, WAIVER OF SIX PARKING SPACES, ALLOW A PATIO COVER TO ENCROACH INTO THE BULKHEAD SETBACK, A CHANGE TO OUTDOOR SEATING PLAN AND THE ADDITION OF PATRON DANCING; AND SUPERSEDING USE PERMIT NO. 3065 AND OUTDOOR DINING PERMIT NO. 1 AT AN EATING AND DRINKING ESTABLISHMENT LOCATED AT 2318 NEWPORT BOULEVARD (PA2011 -055). THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS FOLLOWS: SECTION 1. STATEMENT OF FACTS. 1. An application was filed by Martin Potts on behalf of the Woody's Wharf Restaurant, with respect to the property located at 2318 Newport Boulevard, and legally described as Lots 6, 7, and 8, Section A Newport Beach, Block 223, requesting to amend the existing use permit to change the operational characteristics of an existing restaurant. 2. An application requesting the following changes in the operational characteristics of the existing restaurant: 1) to extend the opening hour from 11:00 a.m. to 10:00 a.m., daily; extend the closing hour of the existing outdoor dining area from 11:00 p.m. to 2:00 a.m., daily; 2) to accommodate patron dancing in the interior of the restaurant, nightly; 3) to amend the requirement for full -time valet parking service during restaurant operating hours, to only require valet services on an as- needed basis (to accommodate special events and holiday peak use); and 4) to approve a waiver of up to 6 parking spaces that results from the addition of patron dancing and eliminating valet parking service on a full time basis. The application will also eliminate conditions of approval that are duplicative and /or otherwise outdated, as requested by the applicant. 3. On July 11, 2013 an application was submitted to request a variance to construct a patio cover on the existing patio which would encroach into the bulkhead setback. 4. The subject property is located within the Mixed Use — Water Related Zoning District (MU- W2) and the General Plan Land Use Element category is also Mixed Use — Water Related District (MU -W2). 5. The subject property is located within the coastal zone. The Coastal Land Use Plan category is Mixed Use — Water Related District (MU -W). 6. The construction of the patio cover will reduce the noise levels generated by patrons utilizing the outdoor patio, as documented by separate noise studies developed by the applicant and the City. Planning Commission Resolution No. 1922 Conditional Use Permit No. UP2011 -010 and Variance No. VA2013 -006 7. Removal of tables and chairs on the outdoor patio, as proposed, will not result in increased noise levels provided the occupancy level of the patio is not increased. 8. The current parking requirement is one (1) parking space for every 40 square feet of net public area. The net public area proposed is 1,589 square feet; therefore the parking requirement is 40 spaces. There are 26 spaces on -site (with 6 tandem spaces available only with the valet parking service) and 10 spaces annual in -lieu spaces, and a credit of 4 spaces for the boat docks is granted, for a total 40 parking spaces allocated to the use. 9. The removal of tables and chairs within the main dining room to accommodate patron dancing will result in a change in operational characteristics of the restaurant but because live entertainment is already permitted, dancing will not generate additional noise in the surrounding area. 10. In accordance with the Newport Beach Municipal Code, on November 8, 2012 the Planning Commission conducted a public hearing and approved: 1) extending the opening hour of the restaurant and outdoor dining area from 11:00 a.m, to 10:00 a.m., daily; 2) extending the closing hour of the outdoor dining area from 11:00 p.m. to Midnight on Friday and Saturday nights; 3) the use of the valet parking on an as- needed basis; and 4) waiver of a portion of the required parking. The portion of the application that was denied included: 1) the introduction of patron dancing within the interior of the restaurant; 2) removing tables and chairs within the outdoor dining area; and 3) extending the closing hour of the outdoor dining area from 11:00 p.m. to 2:00 a.m. from Sunday to Thursday. 11. On November 26, 2012, the project applicant filed an application and letter of justification appealing the Planning Commission's decision. The City Council considered the appeal at a public hearing on March 12, 2013 and requested the Planning Commission reconsider the item on the basis that the applicant modified the application following the Planning Commission's decision. 12. A public hearing before the Planning Commission was held on September 5, 2013, in the City Hall Council Chambers, 100 Civic Center Drive, Newport Beach, California. A notice of time, place and purpose of the meeting was given in accordance with the Newport Beach Municipal Code (NBMC). Following consideration of all evidence, both written and oral, the Planning Commission at this meeting approved: 1) extending the opening hour of the restaurant and outdoor dining area from 11:00 a.m. to 10:00 a.m., daily; 2) extending the closing hour of the outdoor dining area from 11:00 p.m. to 2:00 a.m. on Friday and Saturday nights; 3) the introduction of patron dancing within the interior of the restaurant on Friday and Saturday nights; 4) removing tables and chairs within the outdoor dining area on Friday and Saturday nights; 5) the use of the valet parking on an as- needed basis; and 6) waiver of a portion of the required parking. SECTION 2. CALIFORNIA ENVIRONMENTAL QUALITYACT DETERMINATION. 1. This project has been determined to be categorically exempt under the requirements of the California Environmental Quality Act under Class 1- Existing Facilities. Planning Commission Resolution No. 1922 Conditional Use Permit No. UP2011 -010 and Variance No. VA2013 -006 Pace 3 of 16 2. This exemption applies to existing facilities where it can be demonstrated the project involves negligible or no expansion of the existing use. The change in hours of operation or addition of patron dancing does not involve an expansion or intensification of the existing use. Additionally, the change in the provision of valet parking services on an as- needed basis is consistent with the previous restaurant operations prior to acquisition by the current applicant. SECTION 3. REQUIRED FINDINGS — USE PERMIT. In accordance with Sections 20.48.030 (Alcohol Sales) and 20.52.020 (Conditional Use Permit) of the Newport Beach Municipal Code, the following finding and facts in support of such finding is set forth: Finding: A. The use is consistent with the purpose and intent of Section 20.48.030 (Alcohol Sales) of the Zoning Code. Facts in Support Finding: A -1. The project has been reviewed and conditioned to ensure that the purpose and intent of Section 20.48.030 (Alcohol Sales) of the Zoning Code is maintained and that a healthy environment for residents and businesses is preserved. The service of alcoholic beverages is intended for the convenience of customers of the restaurant. Operational conditions of approval recommended by the Newport Beach Police Department (NBPD) relative to the sale of alcoholic beverages will ensure compatibility with the surrounding use and minimize alcohol - related impacts. A -2. Pursuant to Chapter 5.25 of the NBMC, the operator, as well as any future operators, is has been conditioned to require that the applicant, as well as any future operators, to obtain an Operator License to ensure the establishment is operated in a safe manner and compatible with the neighborhood. A -3. The subject property is located within a mixed use district developed primarily with commercial uses. Across the Rhine Channel, the closest residential district is approximately 570 feet away. To the north, the closest residential use is approximately 200 feet away and residential uses associated with the future South Coast Shipyard Project will be approximately 100 feet away. To the west, the nearest residential uses are 230 feet away; and to the north the nearest residential uses are approximately 200 feet away. The nearest park is the public beach adjacent to the West Ocean Front Boardwalk over 650 feet from the subject property. There are no day care centers, recreation facilities, places of religious assembly, or schools in close proximity to the subject property. In accordance with Section 20.52.020 of the Zoning Code, eating and drinking establishments classified as "Food Service, Late Hours" require the approval of a conditional use permit within the Mixed -Use Water Related (MU -W2) Zoning District. In accordance with Section 20.52.020.E of the Zoning Code, the following findings and facts in support of such findings are set forth: Planning Commission Resolution No. 1922 Conditional Use Permit No. UP2011 -010 and Variance No. VA2013 -006 Paae 4 of 16 Finding: B. The use is consistent with the General Plan and any applicable specific plan. Facts in Support of Finding: B -1. The Mixed -Use Water Related (MU -W2 and MU -W) land use designations of the General Plan and Coastal Land Use Plan are intended to encourage water related uses intermixed with general commercial, visitor - serving commercial and residential uses. The operation of a "Food Service, Late Hours" use with alcoholic beverage sales is consistent with the purpose and intent of this land use designation. B -2. Food service uses are expected to be located in commercial areas, and are complementary to the existing commercial and residential uses in the area. Such uses are frequented by visitors, tenants of the nearby commercial uses, and residents alike. B -3. The subject property is not part of a specific plan area. Finding: C. The use is allowed within the applicable zoning district and complies with all other applicable provisions of this Zoning Code and the Municipal Code. Facts in Support of Finding: C -1. The subject property is located in the Mixed Use — Water Related Zoning District (MU -W2), and eating and drinking establishments classified as "Food Service, Late Hours" require the approval of a conditional use permit. C -2. As conditioned, the project will comply with Zoning Code standards for eating and drinking establishments. Conditions are included related to on -sale alcoholic beverage activities, including the training of personnel, and the provision of security personnel while live entertainment is offered. C -3. Pursuant to Chapter 5.25 of the NBMC, the project has been conditioned to require the applicant, and any future operator of the eating and drinking establishment, to obtain an Operator License from the Newport Beach Police Department (NBPD) in order to maintain operating hours beyond 11:00 p.m., to add dancing and to modify operations, as proposed. C -4. As conditioned, the proposed patio cover shall be constructed in accordance with the submitted plans and tested to confirm the expected noise reduction is provided prior to use of the outdoor patio beyond 11:00 p.m. C -5. As conditioned, the applicant shall obtain a Cafe Dance Permit from the Newport Beach Revenue Division in order to allow patron dancing on -site. Planning Commission Resolution No. 1922 Conditional Use Permit No. UP2011 -010 and Variance No. VA2013 -006 Finding: D. The design, location, size, and operating characteristics of the use are compatible with the allowed uses in the vicinity. Facts in Support of Finding: D -1. The project has been reviewed and conditioned to ensure that potential conflicts with the surrounding land uses are minimized to the extent possible to maintain a healthy environment for both residents and businesses. D -2. As conditioned, the approved seating plan shall be maintained on the basis that the removal of table and chairs from the outdoor dining area increases the number of patrons in this area and likely to result in increased noise levels that will adversely impact nearby properties and residential occupants. D -3. The dancing activities are anticipated to result in an increase in the number patrons entering and exiting the building and thereby exposing the increased noise levels of the interior and the noise generated by the live entertainment and /or dancing to the surrounding area. D -4. The existing outdoor dining patio is surrounded by glass walls which aid to minimize noise from emanating from this area, but are not adequately effective in controlling noise as evidence by noise complaints received by the Police Department and the correspondence received. D -5. The effectiveness of the proposed a patio cover has been evaluated by two acoustical engineers who indicate it will significantly reduce the noise levels from the patio area. D -6. Construction of the proposed patio cover will significantly reduce noise from the patio area to levels well below the Noise Ordinance criteria at the existing mixed use residences to the north and the future residences to the south. Therefore, extending the closing hour to 2:00 a.m. will not adversely impact nearby properties and residential occupants into the late night hours, and is a compatible activity for the neighborhood. D -7. In order to further reduce the potential impact on neighboring properties, a condition of approval is required to prohibit recorded music or other types of sound amplification within the outdoor dining area at all times. Additionally, conditions of approval require the doors exiting the building to the outdoor dining area to remain closed whenever live entertainment is performed inside the building, except in the case when persons are entering and exiting the building. D -8. The location of the valet parking pick -up and drop -off area is shielded from the residences by the restaurant building, thereby mitigating noise impacts from this activity to residential uses across and along the Rhine Channel. D -9. Adequate number of parking spaces are available on -site and the valet parking service serving the nighttime operation will prevent traffic backing up onto Newport Boulevard. The Planning Commission Resolution No. 1922 Conditional Use Permit No. UP2011 -010 and Variance No. VA2013 -006 Page 6 of 16 waiver of a portion of the on -site parking caused by the elimination of the valet parking service during daytime hours of the operation is offset by the lower parking demand for the use based upon on -site observations and the availability of the municipal parking lots in the vicinity. The use of the valet parking service when live entertainment occurs and on an as- needed basis in the evening will maximize on -site utilization of the parking lot and in the case that the lot is full, parking is available in the municipal metered parking lot across the street (the meters are not in effect after 6:00 p.m. daily). Therefore, the waiver of 6 parking spaces for the daytime and nighttime operational periods as proposed is reasonable in this particular case. Finding: E. The site is physically suitable in terms of design, location, shape, size, operating characteristics, and the provision of public and emergency vehicle (e.g., fire and medical) access and public services and utilities. Facts in Support of Finding: E -1. This is an eating and drinking establishment that has existed in this location since the 1960's. The project site has proven to be physically suitable in size to accommodate the restaurant use. E -2. The project site is located on Newport Bay between 24th and 26th Street overlooking the Rhine Channel and is surrounded by similar commercial uses located to the north (next door), and the northwest of the use. This is an appropriate location for an eating and drinking establishment. The restaurant use is complementary to the existing commercial uses in the area, as well as convenient to serve the residential uses located to the north and east across the Rhine Channel in relation to the project site. E -3. The Traffic Engineer has previously reviewed the configuration of the parking lot, as well as the valet parking plan, and has determined the parking lot design functions safely and does not prevent emergency vehicle access to the establishment. E -4. The site is currently served by public services and utilities. Finding: F. Operation of the use at the location proposed would not be detrimental to the harmonious and orderly growth of the City, or endanger, jeopardize, or otherwise constitute a hazard to the public convenience, health, interest, safety, or general welfare of persons residing or working in the neighborhood of the proposed use. Facts in Support of Finding: F -1. The project has been reviewed and appropriately conditioned to ensure the continued operation of the existing eating and drinking establishment as a restaurant, and not as a bar /nightclub, will not be detrimental to the community. Planning Commission Resolution No. 1922 Conditional Use Permit No. UP2011 -010 and Variance No. VA2013 -006 Page 7 of 16 F -2. The proposed patio cover will significant reduce noise levels from the patio area and will remain within the Noise Ordinance criteria. Since the applicant has presented a physical barriers to mitigate existing or anticipated increase in noise levels associated with late night hours, an extension of the outdoor patio hours to 2:00 a.m. and the introduction of patron dancing is justiifed. F -3. The applicant has operated the existing eating and drinking establishment in this location since 2002, and is required to proactively control noise generated by patrons of the restaurant. The operator will be required to obtain an Operator License from the NBPD in order to accommodate the proposed closing hour beyond 11:00 p.m. The Operator License will provide for enhanced control of noise, loitering, litter, disorderly conduct, parking /circulation, and other potential disturbances resulting from the existing establishment, and will provide the NBPD with means to modify, suspend, or revoke the operator's ability to maintain late -hour operations if objectionable condition occur. SECTION 4. REQUIRED FINDINGS —VARIANCE. In accordance with Section 20.52.090 (Variance) of the Newport Beach Municipal Code, the following finding and facts in support of such finding is set forth: Finding: A. There are special or unique circumstances or conditions applicable to the subject property (e.g., location, shape, size, surroundings, topography, or other physical features) that do not apply generally to other properties in the vicinity under an identical zoning classification. Facts in Support of Finding: A -1. The location of the subject property is unique in that it is located on the bay where a bulkhead exists. The patio cover is proposed to mitigate noise generated on an existing patio which encroaches into the 10 -foot bulkhead setback. Covering the patio to implement the desired mitigation necessitates an encroachment into the bulkhead setback. Finding: B. Strict compliance with Zoning Code requirements would deprive the subject property of privileges enjoyed by other properties in the vicinity and under an identical zoning classification. Facts in Support of Finding: B -1. Two parcels located north of the subject property are also constructed at the bulkhead. American Junkie, located immediately to the north, also has an outdoor patio located at or beyond the bulkhead line which is not covered. Planning Commission Resolution No. 1922 Conditional Use Permit No. UP2011 -010 and Variance No. VA2013 -006 Pace 8 of 16 Finding: C. Granting of the Variance is necessary for the preservation and enjoyment of substantial property rights of the applicant. Facts in Support of Finding: C -1. The applicant seeks to construct a patio cover to mitigate noise generated by the use of an existing outdoor patio. Allowing the cover to be constructed within the setback area is anticipated to reduce noise complaints and allow the patio area to be used until 2:00 a.m., daily. Without the patio cover in place, the outdoor area will be restricted to 11:00 p.m., daily. Finding: D. Granting of the Variance will not constitute a grant of special privilege inconsistent with the limitations on other properties in the vicinity and in the same zoning district. D -1. Two parcels located north of the subject property are also constructed at the bulkhead. American Junkie, located immediately to the north, also has an outdoor patio located at or beyond the bulkhead line which is not covered. Facts in Support of Finding: Finding: E. Granting of the Variance will not be detrimental to the harmonious and orderly growth of the City, or endanger, jeopardize, or otherwise constitute a hazard to the public convenience, health, interest, safety, or general welfare of persons residing or working in the neighborhood. E -1. Two parcels located north of the subject property are also constructed at the bulkhead. American Junkie, located immediately to the north, also has an outdoor patio located at or beyond the bulkhead line which is not covered. Facts in Support of Finding: Finding: F. Granting of the Variance will not be in conflict with the intent and purpose of this Section, this Zoning Code, the General Plan, or any applicable specific plan. Facts in Support of Finding: F -1. The encroachment would allow for a patio cover to encroach into the bulkhead setback. The patio cover is an accessory structure which will not extend the useful life of the primary structure. Planning Commission Resolution No. 1922 Conditional Use Permit No. UP2011 -010 and Variance No. VA2013 -006 Paoe 9 of 16 SECTION 5. DECISION. NOW, THEREFORE, BE IT RESOLVED: 1. The Planning Commission of the City of Newport Beach hereby approves Use Permit No. UP2011 -010 and Variance No. VA2013 -006, to 1) extend the opening hour of the restaurant and outdoor dining area from 11:00 a.m. to 10:00 a.m., daily; 2) extend the closing hour of the outdoor dining area from 11:00 p.m. to 2:00 a.m. on Friday and Saturday nights; 3) introduce patron dancing within the interior of the restaurant on Friday and Saturday nights; 4) remove tables and chairs within the outdoor dining area on Friday and Saturday nights; 5) use of the valet parking on an as- needed basis; and 6) waiver of a portion of the required parking subject to the conditions set forth in Exhibit A, which is attached hereto and incorporated by reference. 2. This action shall become final and effective fourteen 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. 3. This resolution supersedes Use Permit No. 3065, 3065 (amended); and Outdoor Dining Permit No. 1, which upon vesting of the rights authorized by this Conditional Use Permit No. UP2011 -010 and Variance No. VA 2013 -006 shall become null and void. PASSED, APPROVED AND ADOPTED THIS 5th DAY OF SEPTEMBER, 2013. AYES: Ameri, Brown, Hillgren, Kramer, and Lawler NOES: Myers and Tucker ABSTAIN: None ABSENT: None 11-ya Planning Commission Resolution No. 1922 Conditional Use Permit No. UP2011 -010 and Variance No. VA2013 -006 Pace 10 of 16 EXHIBIT "A" CONDITIONS OF APPROVAL (Project- specific conditions are in italics) PLANNING 1. The development shall be in substantial conformance with the approved site plan, floor plans, and building elevations stamped and dated with the date of this approval (Except as modified by applicable conditions of approval). Prior to implementation of the activities approved by this application, the applicant shall submit a revised floor plan for approval by the Community Development Director that reflects the limitations and restrictions imposed by the conditions of approval. 2. Conditional Use Permit No. UP2011 -010 and Variance No. VA2013 -006 shall expire unless exercised within 24 months from the date of approval as specified in Section 20.54.060 of the Newport Beach Municipal Code (NBMC), unless an extension is otherwise granted. 3. The hours of operations of the restaurant shall be limited to between 10:00 a.m, and 2:00 a.m., daily. The hours of the outdoor dining area are limited to 10:00 a.m. and 11:00 p.m. daily, however, Friday and Saturdays closing may be extended to 2:00 a.m. The applicant/operator, including any future operator, shall secure and maintain an Operator License issued by the Chief of Police, pursuant to Chapter 5.25 of the NBMC. In no case shall the eating and drinking establishment be permitted to operate beyond the hour of 2:00 a.m., daily. 4. All doors and windows of the interior, including the patio cover, of the eating and drinking establishment shall remain closed whenever live entertainment occurs after 10:00 p.m., except for the ingress and egress of patrons and employees. Doors shall not be propped open, or remain open longer than necessary, to allow for the ingress and egress of patrons and employees. 5. The Operator License required to be obtained pursuant to Condition No. 3 and Chapter 5.25 may be subject to additional and /or more restrictive conditions to regulate and control potential late -hour nuisances associated with the operation of the establishment. 6. Full meal service shall be provided and available for ordering until 10 p.m. and an abbreviated menu that includes heavy appetizers after 10 p.m. daily and serving until a half - hour before closing. 7. The outdoor dining area shall be used in conjunction with the eating and drinking establishment. No special events /promotional activities shall be allowed within the outdoor dining area. 8. The outdoor dining area shall be limited to 709 square feet in area. Planning Commission Resolution No. 1922 Conditional Use Permit No. UP2011 -010 and Variance No. VA2013 -006 9. The outdoor dining area shall be limited to a maximum of 66 seats, including disabled seats/table space, consistent with the floor plans as approved by Plan Check set of plans PC 1141 -2011. The seating and dining in the outdoor dining patio shall be limited to dining table height (approximately 30 inches) and the use of the elevated counters and barstools is prohibited. Removal of dining tables and chairs shall be prohibited between Sunday to Thursday. 10. All employees shall park on -site or in the municipal parking lots in the vicinity. 11. The net public area of the interior portion of the eating and drinking establishment shall not exceed 1,173 square feet and the outdoor dining area shall not exceed 709 square feet for a total of 1,882 square feet of net public area. 12. A minimum of 26 parking spaces shall be provided on -site and payment of in lieu parking fees for 10 spaces for the operation of the eating and drinking establishment. A total of 40 parking spaces shall be provided on -site and by payment of in lieu fees (annually for four parking spaces) for all hours of operation of the establishment (one parking space for each 40 square feet of net public area, 1,589 sq. ft.). Valet parking service shall be provided whenever live entertainment occurs and on an as- needed basis. 13. The applicant/operator shall conspicuously post and maintain signs at all outdoor dining, waiting, smoking and parking areas indicating to patrons the proximity of the restaurant and public dock and boat slip areas to the residential areas, requesting patrons; `Be courteous and respectful of our residential neighbors while outside the establishment ". 14. The project is subject to all applicable City ordinances, policies, and standards, unless specifically waived or modified by the conditions of approval. 15. The applicant /operator shall comply with all federal, state, and local laws. Material violation of any of those laws in connection with the use may be cause for revocation of this Conditional Use Permit. 16. The applicant/operator shall maintain a copy of the most recent City permit conditions of approval on the premises and shall post a notice that these are available for review on the premises. The posted notice shall be signed by the permittee. 17. This approval was based on the particulars of the individual case and does not in and of itself or in combination with other approvals in the vicinity or Citywide constitute a precedent for future approvals or decisions. 18. This Conditional Use Permit and Variance may be modified or revoked by the City Council or Planning Commission should they determine that the proposed uses or conditions under which it is being operated or maintained is detrimental to the public health, welfare or materially injurious to property or improvements in the vicinity or if the property is operated or maintained so as to constitute a public nuisance. 19. Approval of Conditional Use Permit No. 2011 -010 is for the operation of an eating and drinking establishment defined as "Food Service, Late Hours" per Title 20 of the NBMC, Planning Commission Resolution No. 1922 Conditional Use Permit No. UP2011 -010 and Variance No. VA2013 -006 and does not permit or authorize the use or operation of a bar, tavern, cocktail lounge, nightclub or commercial recreational entertainment venue. 20. Any change in operational characteristics, expansion in area, or other modification to the approved plans, shall require an amendment to this Conditional Use Permit or the processing of a new Conditional Use Permit. 21. The type of alcoholic beverage license issued by the California Board of Alcoholic Beverage Control shall be a Type 47 In conjunction with the service of food as the principal use of the facility. Any upgrade in the alcoholic beverage license shall be subject to the approval of an amendment to this application, and may require the approval of the Planning Commission. 22. All landscaped areas shall be maintained in a healthy and growing condition and shall receive regular pruning, fertilizing, mowing and trimming. All landscaped areas shall be kept free of weeds and debris. All irrigation systems shall be kept operable, including adjustments, replacements, repairs, and cleaning as part of regular maintenance. 23. Water should not be used to clean paved surfaces such as sidewalks, driveways, parking areas, etc. except to alleviate immediate safety or sanitation hazards. 24. The washing of the outdoor dining patio with any cleaning solutions or the use of high pressure or steam cleaning devices is prohibited. 25. Lighting shall be in compliance with applicable standards of the Zoning Code. The site shall not be excessively illuminated based on the luminance recommendations of the Illuminating Engineering Society of North America, or, if in the opinion of the Community Development Director, the illumination creates an unacceptable negative impact on surrounding land uses or environmental resources. The Community Development Director may order the dimming of light sources or other remediation upon finding that the site is excessively illuminated. 26. All noise generated by the existing eating and drinking establishment use shall comply with the provisions of Chapter 10.26 and other applicable noise control requirements of the Newport Beach Municipal Code. The maximum noise shall be limited to no more than depicted below for the specified time periods unless the ambient noise level is higher: Between the hours of Between the hours of 7:00 a.m. and 10:00 p.m. 10:00 p.m. and 7:00 a. m. Measured at the property line of commercially zoned property: 65 dBA 60 dBA Measured at the property line of residentially zoned property: 55 dBA 50 dBA Measured in the interior of a 45 dBA 40 dBA Planning Commission Resolution No. 1922 Conditional Use Permit No. UP2011 -010 and Variance No. VA2013 -006 residential structure 27. Prior to issuance of building permits, the construction plans and materials for the proposed patio cover shall be reviewed by an acoustical engineer retained by the City to verify the potential to mitigate the noise levels. 28. Prior to certificate of occupancy for use of the outdoor patio beyond 11:00 p.m., an acoustical engineer retained by the City shall conduct noise measurements around the enclosure, at the property lines, and at the residential uses in the vicinity to verify compliance with the applicable noise control requirements of the Newport Beach Municipal Code. 29. The applicant /operator of the facility shall be responsible for and shall actively control any noise generated by the subject facility including, but not limited to, noise generated by patrons, food service operations, and mechanical equipment. 30. Should the property be sold or otherwise come under different ownership, any future owners or assignees shall be notified of the conditions of this approval by either the current business owner, property owner or the leasing agent. 31. Live entertainment shall be allowed in the interior of the eating and drinking establishment in conjunction with the operator obtaining and maintaining a live entertainment permit from the City. In conjunction with the approval of this use permit, the operator shall amend the existing live entertainment permit consistent with the conditions of approval and the authorized operational changes. 32. No outside paging system or loudspeaker device shall be used in conjunction with this establishment. 33. No live entertainment shall be permitted in the outdoor dining area. Recorded music or other types of sound amplification within the outdoor dining area shall only be audible to the audience within this area, and shall cease after the hour of 10:00 p.m. daily. 34. Dancing shall be allowed on the premises only in conjunction with the issuance of a Cafe Dance permit by the City Manager or designee, if applicable. 35. The applicant/operator 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 (NBPD). The procedures included in the plan and any recommendations made by the NBPD shall be implemented and adhered to for the life of the Conditional Use Permit. 36. Trash receptacles for patrons shall be conveniently located both inside and outside of the establishment, however, not located on or within any public property or right -of -way. 37. The exterior of the business shall be maintained free of litter and graffiti at all times. The owner or operator shall provide for daily removal of trash, litter debris and graffiti from the premises and on all abutting sidewalks within 20 feet of the premises. Planning Commission Resolution No. 1922 Conditional Use Permit No. UP2011 -010 and Variance No. VA2013 -006 Paae 14 of 16 38. The applicant /operator shall ensure that the trash dumpsters and /or receptacles are maintained to control odors. This may include the provision of either fully self- contained dumpsters or periodic steam cleaning of the dumpsters, if deemed necessary by the Code Enforcement Division. Cleaning and maintenance of trash dumpsters shall be done in compliance with the provisions of Title 14, including all future amendments (including Water Quality related requirements). 39. Deliveries and refuse collection for the facility shall be prohibited between the hours of 10:00 p.m. and 8:00 a.m. the following morning, unless otherwise approved by the Community Development Director, and may require an amendment to this Use Permit. 40. Storage outside of the building in the front or at the rear of the property shall be prohibited, with the exception of the required trash container enclosure. 41. No recreational vehicles, boats, food trucks, portable street kitchens or similar vehicles shall be stored at any time at the subject site. 42. A Special Events Permit is required for any event or promotional activity outside the normal operational characteristics of the approved use, as conditioned, or that would attract large crowds, involve the sale of alcoholic beverages, include any form of on -site media broadcast, or any other activities as specified in the Newport Beach Municipal Code to require such permits. 43. Kitchen exhaust fans shall be installed /maintained in accordance with the Uniform Mechanical Code. The issues with regard to the control of smoke and odor shall be directed to the South Coast Air Quality Management District. 44. All exits shall remain free of obstructions and available for ingress and egress at all times. 45. Strict adherence to maximum occupancy limits is required. 46. The use of private (enclosed) "VIP" rooms or any other temporary or permanent enclosures separate from public areas are prohibited. 47. All owners, managers and employees selling, serving or giving away alcoholic beverages shall undergo and successfully complete a certified training program in responsible methods and skills for selling alcoholic beverages. The certified program must meet the standards of the California Coordinating Council on Responsible Beverage Service or other certifying /licensing body, which the State may designate. The establishment shall comply with the requirements of this section within 180 days of the issuance of the certificate of occupancy. Records of each owner's, manager's and employee's successful completion of the required certified training program shall be maintained on the premises and shall be presented upon request by a representative of the City of Newport Beach. 48. Any event or activity staged by an outside promoter or entity, where the restaurant owner or his employees or representatives share in any profits, or pay any percentage or commission to a promoter or any other person based upon money collected as a door Planning Commission Resolution No, 1922 Conditional Use Permit No. UP2011 -010 and Variance No. VA2013 -006 Pape 15 of 16 charge, cover charge or any other form of admission charge, including minimum drink orders or sale of drinks is prohibited. 49. No alcoholic beverages shall be consumed on any property adjacent to the licensed premises under the control of the license. 50. No "happy hour" type of reduced price alcoholic beverage promotion shall be allowed except in conjunction with food service available from the full service menu. There shall be no reduced price alcoholic beverage promotion after 10:00 p.m. 51. "Minimum drink orders are prohibited. 52. The quarterly gross sales of alcoholic beverages shall not exceed the gross sales of food and retail sales during the same period. The licensee shall maintain records that reflect separately the gross sale of food and the gross sales of alcoholic beverages of the licensed business. Said records shall be kept no less frequently than on a quarterly basis and shall be made available to the NBPD on demand. 53. No on -site radio, television, video, film or other media broadcasts from the establishment that includes the service of alcoholic beverages shall be permitted without first obtaining an approved Special Event Permit issued by the City. This prohibition of media broadcasts includes recordings to be broadcasted at a later time. 54. All signs shall be in conformance with the provisions of Chapter 20.42 of the Newport Beach Municipal Code. 55. 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 that are clearly visible to the exterior shall constitute a violation of this condition. 56. No games or contests requiring or involving the consumption of alcoholic beverages shall be permitted. 57. A modification is required to be filed with the Building Division, for compliance to Section 705.11 of the California Building Code. 58. Occupant Load shall be maintained at 164 Occupants total for all areas. 59. Accessibility upgrades shall be required pursuant to Section 1134.2.1 of the California Building Code. 60. Submit architectural and structural plans and calculations for plan review. Two (2) building permits shall be required for the installation of two awnings. Awnings shall meet the requirement for Class A roofing. Planning Commission Resolution No. 1922 Conditional Use Permit No. UP2011 -010 and Variance No. VA2013 -006 Pace 16 of 16 61. Awnings and canopies shall be designed and constructed to withstand wind or other lateral loads and live loads as required by California Building Code Chapter 31 Section 3105.3. 62. Canopies shall be constructed with an approved covering that meets the fire propagation performance criteria of NFPA 701 or has a flame spread index not greater than 25 when tested in accordance with ASTM E 84 or UL 723 as per C.B.0 Sec. 3105.4. 63. Occupant load and seating arrangement under new exterior awning area must meet California Building Code Chapter 10. These items will be reviewed at the time of plan check. 64. To the fullest extent permitted by law, applicant/operator shall indemnify, defend and hold harmless City, its City Council, its boards and commissions, officials, officers, employees, and agents from and against any and all claims, demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever which may arise from or in any manner relate (directly or indirectly) to City's approval of the subject restaurant facility (currently operating as Woody's Wharf Restaurant) including, but not limited to, the Use Permit No. 2011 -010 and Variance No. VA2013 -006. This indemnification shall include, but not be limited to, damages awarded against the City, if any, costs of suit, attorneys' fees, and other expenses incurred in connection with such claim, action, causes of action, suit or proceeding whether incurred by applicant/operator, City, and /or the parties initiating or bringing such proceeding. The applicant/operator shall indemnify the City for all of City's costs, attorneys' fees, and damages which City incurs in enforcing the indemnification provisions set forth in this condition. The applicant/operator shall pay to the City upon demand any amount owed to the City pursuant to the indemnification requirements prescribed in this condition.