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HomeMy WebLinkAbout28 - Buzz Revocation Appeal Use Permit 3626E�ypO CITY OF NEWPORT BEACH OVA R PLANNING DEPARTMENT C 33o NEWPORT BOULEVARD u d NEWPORT BEACH, CA 82658 C9t /pppN`' (qaq) 644-32oo; FAx (qaq) 644-3250 Hearing Date: Agenda Item No.: Staff Person: December 12, 2000 28 Patrick J. Alford (949) 644 -3235 REPORT TO THE MAYOR AND CITY COUNCIL SUBJECT: Use Permit 3626 (Buzz) Revocation Appeal (Eric Rameson and Hospitality Management Group, applicantlappellant) 3450 Via Oporto SUMMARY: An appeal by the applicant of the Planning Commission's revocation of Use Permit 3626. ACTION: Continue to January 23, 2001. Introduction The applicant has filed an appeal (Attachment 41) of the Planning Commission decision to revoke a use permit for a full service restaurant and entertainment facility known as Buzz. Section 20.95.050 (A) of the Newport Beach Municipal Code (NBMC) requires that the appeal be scheduled for hearing within 30 days of the filing, unless the applicant/appellant consents to a later date. A representative of the applicant/appellant has submitted a letter (Attachment #2) requesting a continuance and expressing a Willingness to correct the violations that lead to the revocation. Due to the large volume of support material necessary for the City Council to prepare for the hearing and the anticipated time required to conduct the hearing, staff is recommending that this item be continued to the meeting of January 23, 2001. Staff also requests that the City Council direct the applicant/appellant to submit any additional materials in support of the appeal to staff no later than January 5, 2001 so that it can be reviewed and included in the staff report, which will be delivered to the City Council on January 12, 2001. Background On October 5, 2000, the Planning Commission was informed of apparent violations of the terms and conditions of approval for the establishment known as Buzz (Use Permit 3626). Planning Commission determined that there are reasonable grounds for the revocation of the use permit and, at the request of the applicant's legal counsel, set the revocation hearing date for November 9, 2000. Section 20.96.040 of the NBMC authorizes the Planning Commission to revoke a use permit upon making one or more of the following findings: 1. That the permit was issued on the basis of erroneous or misleading information or misrepresentation; 2. That the terms or conditions of approval of the permit have been violated or that other laws or regulations have been violated; 3. That there has been a discontinuance of the exercise of the entitlement granted by the permit for 180 consecutive days. On November 9, 2000, the Planning Commission voted (6 ayes, 0 no, 1 absent) to revoke Use Permit 3626. The applicant filed the notice of appeal on November 27, 2000. Analysis The Appeal The applicant bases the appeal on the following arguments: 1. The Planning Commission had no authority to revoke Use Permit 3626. 2. The Planning Commission acted arbitrarily and capriciously by refusing the applicant's request for a full evidentiary hearing. This would include witnesses testifying under oath, the opportunity to cross - examine, issue subpoenas, and conduct discovery. 3. Many of the supporting materials to the Planning Commission's staff report were provided too close to the hearing, which did not give the applicant enough time to prepare an adequate rebuttal. 4. The Planning Commission's action has no rational basis, violates the First Amendment rights of the applicant, and lacks any adequate substantive factual basis. 5. The Planning Commission refused to take any testimony from the applicant and their witnesses. 6. The Planning Commission hearing violated the California and United States Constitutions and deprived the applicant of their Constitutional rights. I Use Permit 3626 (B=) Revocation Appeal December 12, 2000 Page 2 The Planning Commission's Action The Planning Commission first addressed the applicant's request for a full evidentiary hearing. Both the Assistant City Attorney and the independent legal counsel retained for the revocation hearing (Philip D. Kohn of Rutan & Tucker) advised the Planning Commission that the judicial - type proceedings requested by the applicant were not applicable to the revocation proceeding relating to the use permit. Furthermore, the applicant is provided due process through the opportunity to be present, to be confronted with the evidence that is being presented to the Planning Commission, to be provided with the opportunity to present testimony, documentary evidence, argument and whatever other written or oral information he wishes the Commission to consider. The Planning Commission concluded that the public hearing procedure, which includes the staff s presentation, the applicant's presentation, public testimony, and the applicant's rebuttal, was the proper procedure for the revocation hearing. The Planning Commission then addressed the applicant's request for a continuance. Some Commissioners acknowledged that there was a voluminous amount of support material, most of which consisted of arrest reports and declarations from Newport Beach Police Department (NBPD) officers. However, the consensus of the Planning Commission was that the primary issue was whether or not the project was in compliance with the terms and conditions of approval. The Planning Commission questioned the value of detailed inquiries into the arrest reports and the declarations of the NBPD, noting that NBPD officers were either present at the hearing or on call should they be needed. The Planning Commission concluded that the applicant did not present a compelling justification for another postponement of the revocation hearing and chose not to grant the request for the continuance. The Planning Commission then addressed whether the findings could be made to revoke the use permit, focusing on two key points. First, the extent to which the project as it operates today deviates from that approved by the Planning Commission and the City Council in 1998. Second, whether the terms or conditions of approval of the use permit have been violated or that other laws or regulations have been violated. In their discussion, the Planning Commission placed a strong emphasis on the applicant's admission that the interactive and skill games described in the project application and depicted on the approved floor plans had been removed and that valet parking service was not being provided. The Planning Commission confirmed that the substantial number of interactive and skill games was a key factor in the Planning Commission's approval of the project. The interactive and skill games were used to establish the operational characteristics of the project and served as the basis for the increase in the project's net public area and the partial waiver of the project's off - street parking requirement. The Planning Commission concluded that the removal of the games and subsequent use of this area for food and beverage service and dancing is in direct violation of Use Permit 3626 Condition No. 1, which requires that the development be in substantial conformance with the approved floor plan. Furthermore, the Planning Commission concluded that failure to provide valet parking was in direct violation of Use Permit 3626 Condition No. 3, which requires the project to provide a valet parking service. 3 Use Permit 3626 (Bua) Revocation Appeal December 12, 2000 Page 3 Based on the testimony of the applicant and the information contained in the staff report, the Planning Commission voted to revoke Use Permit 3626 with the following findings: Finding No. 1: The permit was issued on the basis of erroneous or misleading information or misrepresentation. 1. The Planning Commission approved Use Permit 3626 on the basis of erroneous or misleading information or the misrepresentation that the project was to permanently operate as a full service restaurant/recreation facility. The full service restaurant/recreation facility was seen as a means of establishing a use that would correct the problems with the previous bar /nightclub use of the project site and be beneficial to the surrounding area. However, the project is being operated as a bar /nightclub that is negatively impacting the project site and the surrounding area. 2. The increase of net public area and the waiver of 41 additional parking spaces was based on the erroneous information that the second floor game area was identified as a permanent feature of the project. Since electronic game centers have a significantly lower off - street parking requirement than eating and drinking establishments, this feature was used as justification for the increase in net public area and the parking waiver. However, within six months of the issuance of the certificate of occupancy, all but a few of these games were removed and the floor area was converted to food and beverage service and dance floors. This increased the net public area of the project, leading to higher parking demand. The representative of the applicant stated that the first and second floors are no longer used as game area. Finding No. 2: That the terms or conditions of approval of the permit have been violated or that other laws or regulations have been violated. 1. The floor plans submitted with the application depicted a significant portion of the floor area devoted to game units. However, within six months of the issuance of the certificate of occupancy, these games were removed, which is in direct violation of Use Permit 3626 Condition No. 1, which requires that the development be in substantial conformance with the approved floor plan. 2. A representative of the applicant has stated that the project has ceased to provide valet parking services, which is in direct violation of Use Permit 3626 Condition No. 3, which requires the project to provide a valet parking service. 3. The Code Enforcement Division issued administrative citations on February 5, 2000 and February 26, 2000 for exceeding the City's exterior noise standard and Use Permit 3626 Condition No. 24, which requires compliance with the City's noise standards. I/ Use Permit 3626 (B=) Revocation Appeal December 12, 2000 Page 4 4. From January 1, 2000 to September 30, 2000, the Newport Beach Police Department has documented at least 66 calls for service and 98 officer - initiated activities at the project site. The NBPD concluded that the project was having an adverse impact on the health, safety, and welfare of the neighborhood and the general public and is a drain on police resources. 5. The State Department of Alcoholic Beverage Control has formally advised the project owners that the continued criminal acts at the project site and surrounding area constitute a disorderly house and a nuisance. Conclusion Should the City Council grant the appeal and reverse the Planning Commission's revocation of Use Permit 3626, the project will be allowed to continue to operate subject to the terms and conditions approved in 1998. Should the City Council affirm the Planning Commission's revocation of Use Permit 3626, all rights and entitlements granted by the use permit will become voided immediately. Submitted by: PATRICIA L. TEMPLE Planning Director 02_4,L26t Attachments: Prepared by: PATRICK J. ALFORD Senior Planner 1. Appeal Application. 2. December 1, 2000 letter from the applicant/appellant. S Use Permit 3626 (Bun) Revocation Appeal December 12, 2000 Page 5 CITY OF (NEWPORT BEACH APPLICATION TO APPEAL DECISION OF THE PLANNING COMMISSION AccilcationNe. ' =temp re'rocation of Use Permit 3626 zrix xameson ana Hospitality Management Group, by and Name of Appe!lantthrough Stephen Allen Jamieson, Solomon, Saltsman & cr parson filing: Jamieson, attorney of record for Ptcre: (310) 822 -9848 Appellants. Address: 426 Culver Blvd., Y:ava del Rev, Cali= oraia, 90293 Cate of Planning Commission decisior: November 9 .2000 Recarclrgapplicationof: Attempted revocation. of Use Permit 1526 for (Description application filed with Planning Commission) the Buzz resta•:rant, located escri ,ion of a at 3430 Via Oporto, N=ewport Beach, California Reasons for Appeal: =le -sse see the attac;ad lets== -r (incorporated by this reference) en A —lien Ja-_eson, as Attorney half of Appellants FOR OFFICE USE ONLY Ca-a Nov. 2?, 2000 Date Appeal filed and Admiristrative Fee received. %?r> •�* ✓ r97 2000 Hearing Data_. An appeal shall be scheduled for a hearng before the City Council HP:hin chiry (30) days of the fliing of the appeal unless both applicant and appellant or reviewing Cody cc nsent `.o a !ater dale (NBMC Sac. 2Q.85.050) Note that Appellants consten to cc: Appellant a later date of appeal. Ptanntng (Ft;misn are sat cf maal , labe!s far maiang) _ File - AP PEALS: 1i ricipal Cede Sec. 2C.SS.0 ?06 - i A^ceal Fee: 52A7 %r l ct'c " 2; d ed Q (ef` 711f0C) r. � wa,a .o Resal n � w. OC -59 a opt_ on c 27-.. �, _., (Deposit fur.ds 'N th Cashier it Ac,—um "12 17 C. rT -1 LAW OFFICES OF SOLOMON, SALTSMAN & JAMIESON A Partnership Including Professional Corporations 426 CULVER BOULEVARD PLAYA DEL REY, CA 90293 (310)822 -9848 FAX (310) 822 -3512 November 27, 2000 VIA HAND DELIVERY Newport Beach City Council Newport Beach City Clerk City of Newport Beach 3300 Newport Blvd. Newport Beach, CA 92663 Re: Appeal of November 9, 2000 Planning Commission action attempting to revoke Use Permit 3626 To the Honorable Council Members, Mayor, and to the City Clerk: Please be advised the undersigned represents the holder of Use Permit 3626, commonly known as The Buzz Restaurant (hereinafter referred to as "Appellants ") in regards to the above - referenced matter. Appellants, pursuant to Chapters 20.95, 20.96 and all other applicable Chapters, Titles, and provisions of the Newport Beach Municipal Code, hereby appeals the November 9, 2000 Planning Commission action purporting to revoke Use Permit 3626. Please find attached a check in the amount of $287.00 made payable to the City of Newport Beach for the appeal fee, as well as the appeal form provided by the City. This appeal is made on the ground that, pursuant to the conditions of Use Permit 3626 and pursuant to Newport Beach Municipal Code Section 20.96.040 and all other pertinent provisions, the Planning Commission had no authority to revoke Use Permit 3626. This appeal is further made on the grounds that, in attempting to revoke Use Permit 3626, the Planning Commission acted arbitrarily and capriciously. The Commission while, empowered to administer oath and to take sworn testimony, refused and/or failed to do so. In addition, the Commission's purported revocation of Use Permit 3626 was based on un -sworn, unverified, and uncorroborated, multiple hearsay testimony evidence submitted by staff of the City departments. In addition, the Commission having the power to compel the attendance of witnesses refused and failed to compel the attendance of witnesses whose alleged testimony was used as grounds for the attempted revocation of the Permit and provided in related Planning Department staff reports. The materials upon which it based its action were provided too close to the hearing and thus did not 7 Newport Beach City Council Newport Beach City Clerk City of Newport Beach November 27, 2000 Page 2 give Appellant adequate time to prepare to rebut the evidence the City presented. Furthermore, the purported revocation has no rational basis, violates the First Amendment rights of Appellants, and lacks any or adequate substantive factual basis. This appeal is further made on the ground that, during the November 9, 2000 hearing the Commission refused and did not take any testimony from Appellants and their witnesses. The revocation resolution and factual findings are inadequate as a matter of law. This appeal is further made on the ground that the Planning Commission hearing was conducted in manner that violated the California and U.S. Constitutions and deprived Appellants of their Constitutional rights. Said violations include, but are not limited to, violating Appellants' Due Process rights, including but not limited to their rights of notice and opportunity to rebut the charges against them. Said violations also include, but are not limited to, violating Appellants' Equal Protection rights, and violating the Takings Clauses of the California and U.S. Constitutions by, inter alia, wrongfully infringing upon Appellants' Constitutionally protected and vested property rights. Very truly TSMAN & JAMIESON ALLEN JAMIESON SAJ /mg cc: Robin Clauson, Assistant City Attorney Randy Teffeteller, Hospitality Management Group Eric Rameson, Applicant Michael Cho, Esq. Barry Hammond Stephen Warren Solomon, Esq. UWSERVERWDRIVE\aaOm Cuc S- Z\Tefferclle. Randy, Bun RanunmH.Nppeal.d 14FA From: Fax 949/25(17116 To: Patncia Temple Date: 1214100 Time: 12:46:56 PM Page 2 of 3 December 1, 2000 Ms. Patricia Temple Director, Planning Department City of Newport Beach PO Box 1768 Newport Beach, Ca. 92658 -8915 J ASi "AI`I B COMPANIES I N C O R P O R A T E D AA J O I N T W E N T U R E Subject: Use Permit No. 3626 (the Buzz" restaurant; 3450 Via Oporto Dear Ms. Temple: Thank you for taking the time to meet with Steve Jamieson and myself regarding the Buzz Restaurant. I believe that our meetings have produced a new level of understanding and communication. Given this positive development, we are proposing some changes in the operations of The Buzz and a continuance or table of the appeal scheduled for the December 12, 2000 Newport Beach City Council meeting. Before getting into the actual proposal, I would like to re -state that it was not the intent of anyone associated with this project to deceive the planning commission or the City when this use permit was obtained in 1998. The plan was to develop the project as stated in the hearing where the use permit was issued. Unfortunately, the public, who arc the customers of The Buzz, did not accept the concept and it was quickly evident that the concept was not going to work. Given this reality the games were removed after many months of lack of consumer acceptance and the operation changed. This in part brings us to the matter before us. It is also my understanding, that despite the fact that the Police have had some problems at the restaurant, they feel that the current operator has a reasonable security plan and has trained staff to adequately handle security. In order to comply with the conditions of Use Permit # 3626 and to show good faith to The City of Newport Beach, we propose the following: Items to bring the restaurant into compliance with the conditions of the permit: 1. Valet Parking will immediately begin, as required in the permit. 2. The approx. 2,000 sq. ft. of game area on the second floor will not be used for general operations, unless the use permit is amended. This area may be used for banquets and special events, such at the Boat Parade, Items offered as good faith to The City of Newport Beach: 1. Restaurant will expand operating hours to increasingly reflect a restaurant during the Holiday Season. 2. "Drinks" will be sold only at the 2 permanent bars, or via a server (no "cooler tubs") 3. Dancing will be restricted to an area consistent with the Use Permit 41 CORPORATE PARK, SUITE 210 - IRVINE, CA 92606 TELEPHONE: 949/260-7117 . PAX: 949/230.7116 From Fax 949 /250 7116 To: Patricia Temple Date: 12/4/00 Time: 12:46:56 PM Page 3 of 3 4. One source of live entertainment per floor. 5. Re -state our agreement with the Police that the operator will not use outside promoters, but can use HMG stat% 6. Per our conversation with Capt. Newman, we will meet the Newport Beach Police department within the next 2 weeks to review and improve the security plan then follow up on a periodic basis. 7. The operators will implement the City's Alcoholic Beverage Outlet ordinance (section 20.89.050) section 9. Responsible Beverage Service /Sales Training Requirements and have its managers and employees serving and/or selling alcoholic beverages undergo and successfully complete a training program in responsible methods and skills for serving and selling alcoholic beverages. 8. Submit an application for a revised use by January 31, 2001. i believe this includes the things that we discussed and trust this is an acceptable solution for The City. Again thank you for your time, I look forward to your positive response. Cc: Robin Clauson, City Attorney Capt. Tim Newman, Newport Beach Police Steve Jamieson Randy TefJeteller /P