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Home My WebLink About2009-76 - Port Restaurant - 440 Heliotrope AvenueRESOLUTION NO. 2009 -76 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH DENYING THE APPEAL AND UPHOLDING AND AFFIRMING THE DECISION OF THE PLANNING COMMISSION TO DISSAPROVE 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 CITY COUNCIL OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS FOLLOWS: SECTION 1. STATEMENT OF FACTS. 1. An application was filed by Ali H. Zadeh, applicant and appellant , 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 appellant proposed 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. 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. Public hearings were held by the Planning Commission on August 20, 2009 and September 17, 2009, in the City Hall Council Chambers, 3300 Newport Boulevard, Newport Beach, California. A notice of time, place and purpose of the meetings were given in accordance with the Newport Beach Municipal Code. Evidence, both written and oral, was presented to, and considered by, the Planning Commission at these meetings. 6. At the September 17, 2009, Planning Commission hearing, the Planning Commission unanimously voted to disapprove the amendment to Use Permit No. 1566 and Off -Site Parking Agreement No. OP2009. 7. On September 30, 2009, the applicant appealed the decision of the Planning Commission to the City Council. 8. The appellant has modified his request to limit the extension of the closing hours to three days of week (Thursday through Saturday), as opposed to daily as originally requested. Pursuant to Section 20.95.060(C) the City Council may only consider the modified application if they deem it relevant. 9. A public hearing was held by the City Council on November 10, 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 City Council at this meeting SECTION 2. FINDINGS. 1. The findings required by 20.91.035 of the Zoning Code to approve the requested amendment to Use Permit No. 1566 cannot be made. 2. Given the location of the restaurant in close proximity to numerous residential units and Two -Unit Residential (RT) Zoning 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: • 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. Sound tests conducted by the applicant did 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 can potentially transform the restaurant into a bar /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. • There is insufficient evidence 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. 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 City Council 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 3. DECISION. NOW, THEREFORE, BE IT RESOLVED: The City Council of the City of Newport Beach hereby denies the appeal and upholds and affirms the decision of the Planning Commission to disapprove the amendment to Use Permit No. 1566 and Off -Site Parking Agreement No. OP2009 -003. 2. This resolution shall take effect immediately upon adoption. 3. The City Council of the City of Newport Beach hereby directs the City Clerk to mail notice of this decision to the applicant and appellant within five working days of the date of this decision. Passed and adopted by the City Council of Newport Beach at a regular meeting held on the November 10, 2009. ATTEST: CITY CLERK STATE OF CALIFORNIA } COUNTY OF ORANGE } ss. CITY OF NEWPORT BEACH } I, Leilani I. Brown, City Clerk of the City of Newport Beach, California, do hereby certify that the whole number of members of the City Council is seven; that the foregoing resolution, being Resolution No. 2009 -76 was duly and regularly introduced before and adopted by the City Council of said City at a regular meeting of said Council, duly and regularly held on the 10th day of November, 2009, and that the same was so passed and adopted by the following vote, to wit: Ayes: Henn, Rosansky, Curry, Webb, Gardner, Daigle, Mayor Selich Noes: None Absent: None Abstain: None IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the official seal of said City this 11th day of November, 2009. City Clerk Newport Beach, California (Seal)