HomeMy WebLinkAbout26 - Use Permit 3626 Buzz Revocation 3450 Via OportoCITY OF NEWPORT BEACH
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00 PLANNING DEPARTMENT
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.� NEWPORT BEACH, CA 82658
(949) 644-3200: FAX (949) 644-3250
Hearing Date:
Agenda Item No.:
Staff Person:
REPORT TO THE MAYOR AND CITY COUNCIL
SUBJECT: Use Permit 3626 (Buzz) Revocation
3450 Via Oporto
June 12, 2001
26
Patrick J. Alford
(949) 644 -3235
SUMMARY: An appeal by the applicant of the Planning Commission's revocation of Use
Permit 3626.
SUGGESTED
ACTION: 1) Rescind the City Council's action on February 13, 2001 referring the
revocation appeal back to the Planning Commission; and
2) Direct the Planning Director to designate a hearing date and a
hearing officer to conduct the revocation appeal hearing and submit
proposed findings and recommendations to the City Council for final
action.
Back round
On November 9, 2000, the Planning Commission voted to revoke Use Permit 3626. The applicant
filed an appeal to the City Council on November 27, 2000 and expressed a willingness to correct
the violations that led to the revocation by filing a new use permit application for a new eating and
drinking establishment. At the applicant/appellant's request, the City Council twice continued the
appeal hearing before referring the matter back to the Planning Commission on February 13, 2001.
The Planning Commission was to reevaluate the revocation in conjunction with an application for
a new eating and drinking establishment on the project site (see Exhibit I for a detailed chronology
of events).
Discussion
When the Planning Commission's decision to revoke Use Permit 3626 was appealed to the City
Council, the revocation was held in abeyance until the appeal is heard. Therefore, the City did not
have the authority to require the establishment to close without obtaining a court order until such
time as the City Council makes a final decision on the appeal.
The applicant/appellant agreed that while they were applying for a new use permit, the
establishment would operate with approximately 2,000 square feet of the second floor' closed off
pending the outcome of the appeal and/or an application to modify the use permit. This was
intended as an accommodation principally to allow the management to honor their boat parade and
other holiday banquet commitments during December 2000 and January 2001.
The establishment operated sporadically thereafter until the management voluntarily closed the
establishment in early March 2001. On March 28, 2001, the applicant/appellant's representative
submitted a letter informing the City of "the decision had been made to stop operations of `the
Buzz "' and their intent to "move slowly" on the use permit application. They also requested "that
any hearing relative to the revocation be tabled." The applicant/appellant now believes they have a
right to reopen and operate at less than what was approved under the use permit, provided the
approximately 2,000 square feet on the second floor originally approved as game areas is not used
for any purpose. The applicant/appellant proposes to block off this area off.
It should be noted that the "block off' plan implemented for the holidays was not fully effective in
preventing use of the second floor area and, therefore, deemed by staff not to be in compliance with
Use Permit 3626 conditions.
Staff does not believe that it was the City Council's intent to allow any new establishment to open
on the project site without the appropriate permits. It has been four (4) months and the City still has
not received a complete application. Therefore, staff recommends that the City Council rescind
their earlier action referring the revocation appeal back to the Planning Commission and direct the
Planning Director to designate a hearing officer to conduct the revocation appeal hearing under the
provisions of Section 1.08.055 of the Municipal Code. The hearing officer will take evidence,
direct preparation of a transcript and submit proposed findings and recommendations to the City
Council. The City Council may then adopt the proposed findings and recommendations as their
decision or may take any other action that is supported by substantial evidence in the record.
Submitted by:
PATRICIA L. TEMPLE
Planning Director
Exhibits:
1. Chronology of Events.
2. February 13, 2001 City Council Staff Report.
3. February 13, 2011 City Council minutes.
Prepared by:
PATRICK J. ALFORD
Senior Planner
4
' The use permit designated this space as games areas, which was the basis of the Planning Commission's approval of
an increase of the net public area and the waiver of a portion of the project's off - street parking requirement. The
conversion of this and other areas of the establishment to food and beverage service live entertainment, and dancing
was one of the primary reasons for the revocation of the use permit.
Use Permit 3626 (BuU) Revocation 2
June 12. 2001
Page 2
Use Permit 3626 (Buzz) Revocation
3450 Via Oporto
Chronology of Events
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.
On November 9, 2000, the Planning Commission voted (6 ayes, 0 no, 1 absent) to revoke Use
Permit 3626.
November 27, 2000, the applicant files the appeal to the City Council.
On December 1, 2000, applicant/appellant submitted a letter requesting a continuance and
expressing a willingness to correct the violations that led to the revocation.
On December 12, 2000, the City Council continued the appeal hearing to January 23, 2001.
On December 13, 2000, the applicant/appellant submitted a letter outlining the proposed changes
to the operational characteristics of the establishment.
On January 8, 2001, the applicant/appellant requested a second continuance to allow time to file
an application for a use permit for a new eating and drinking establishment on the project site.
On January 23, 2001, the City Council continued the appeal hearing to February 13, 2001.
One February 1, 2001, the applicant/appellant filed an application for a use permit for a
restaurant with entertainment and dancing (Newport Fish House).
On February 13, 2001, the City Council referred the project back to the Planning Commission so
they could take action on the new application and possibly factor in the revocation proceedings
into that process.
On March 2, 2001, the Planning Department staff sent a letter to the applicant/appellant advising
him that the application was incomplete.
On March 28, 2001, the applicant/appellant's representative submitted a letter stating "the decision
had been made to stop operations of `the Buzz "' and requesting "that any hearing relative to the
revocation be tabled."
On April 17, 2001, the City sent a letter to the applicant/appellant stating that the request to table
the revocation proceedings and the statement that a complete application was not forthcoming
3
Exhibit 1
was counter to the City Council' direction. Furthermore, that the City considered their actions as
their desire not to pursue the application or appeal. Staff gives the applicant/appellant one (1)
week to respond.
On April 23, 2001, the applicant/appellant's representative responded with more detail on how
they plan to proceed with the goal to work with the City. There is no mention of intent to
reopen.
On May 11, 2001, the applicant/appellant applied for a building permit for a wall sign for
"Newport Fish House."
On May 18, 2001, the Code Enforcement Division observed and photographed a banner on the
project site indicating that the "Newport Fish House" will open in June.
On May 21, 2001, the applicant/appellant's representative stated that the application will be
completed, but wished to reopen prior to the hearing.
On May 23, 2001, the applicant/appellant submitted additional information and plans in response
to incomplete letter. The applicant/appellant emphasized that they were not asking for a new use
permit, rather simply requesting a modification to the use permit to remove "...the game element
from the operation..."
q
Exhibit 1
CITY OF NEWPORT BEACH
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O PLANNING DEPARTMENT
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(949) 644'32°°7 FAX (949) 644'325°
Hearing Date:
Agenda Item No.:
Staff Person:
February 13, 2001
19
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, applicant/appellant)
3450 Via Oporto
SUMMARY: An appeal by the applicant of the Planning Commission's revocation of Use
Permit 3626.
ACTION: Hold a public hearing and uphold or reverse the decision of the Planning
Commission to revoke Use Permit 3626.
Introduction
The applicant has filed an appeal (Attachment A) of the Planning Commission decision to revoke a
use permit for a full service restaurant and entertainment facility known as Buzz. The
applicant/appellant has twice requested and received continuances with the understanding that an
application for a use permit for a new eating and drinking establishment on the project site would
be filed by the end of January, 2001. However, as of this writing, the application for the new use
permit has not been filed with the Planning Department.
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.
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.
On December 1, 2000, applicant/appellant submitted a letter requesting a continuance and
expressing a willingness to correct the violations that led to the revocation.
On December 12, 2000, the City Council continued the appeal hearing to January 23, 2001.
5
On December 13, 2000, the applicant submitted a letter outlining the proposed changes to the
operational characteristics of the establishment.
On January 8, 2001, the applicant/appellant requested a second continuance to allow time to file an
application for a use permit for a new eating and drinking establishment on the project site.
On January 23, 2001, the City Council continued the appeal hearing to February 13, 2001.
Analysis
The Appeal
The applicant bases the appeal on the following arguments:
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.
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.
Use Permit 3626 (Buzz) Revocation Appeal
February 13, 2001
Page 2
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.
Based on the testimony of the applicant and the information contained in the staff repor2> 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
Use Permit 3626 (Bun) Revocation Appeal ry
February 13. 2001
Page 3
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.
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.
Use Permit 3626 (Bu ) Revocation Appeal
February 13, 2001 1�
Page 4
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
Prepared by:
PATRICK J. ALFORD
Senior Planner
Attachments:
A. Appeal Application.
B. December 1, 2000 continuance request letter from the applicant/appellant.
C. January 8, 2001 continuance request letter from the applicant/appellant.
D. November 9, 2000 Planning Commission minutes.
E. November 9, 2000 Planning Commission staff report Wattachments.
Note:
Due to the volume of the attachments, they will not
be reproduced for wide dissemination. They are
available for review in the City Clerk's office.
Use Permit 3626 (B=) Revocation Appeal
February 13, 2001
Page 5
City of Newport Beach
City Council Minutes
February 13, 2001 INDEX
that this is what was done when he sat on the Planning Commission.
The motion carried by the following roll call vote:
Ayes: Ridgeway, Glover, Bromberg, Proctor
Noes: Heffernan, O'Neil, Mayor Adams
Abstain: None
Absent: None
19. USE PERMIT 3626 (BUZZ) REVOCATION APPEAL (ERIC RAMESON
Use Permit 3626/
AND HOSPITALITY MANAGEMENT GROUP, APPLICANT/
Buzz Revocation Appe
APPELLANT) - 3450 VIA OPORTO - AN APPEAL BY THE
3450 Via Oporto
APPLICANT OF THE PLANNING COMMISSION'S REVOCATION OF
(88)
USE PERMIT 3626 (contd. from 12/12/00 & 1/23/01).
City Attorney Burnham reported that staff met with Buzz representatives
last week. He stated that they submitted an application that will be
considered by the Planning Commission for an amendment to the existing
use permit to modify the business concept. He suggested either referring the
revocation back to the Planning Commission so they could take action on the
application and possibly factor in the revocation proceedings into that
process, or deferring the revocation hearing for 60 or 90 days pending final
action by the Planning Commission on the application.
Motion by Council Member O'Neil to refer this item back to the Planning
Commission.
Mayor Adams opened the public hearing.
The motion carried by the following roll call vote:
Ayes: Heffernan, O'Neil, Ridgeway, Glover, Bromberg, Proctor, Mayor
Adams
Noes: None
Abstain: None
Absent: None
CONTINUED BUSINESS
20. APPOINTMENTS TO ENVIRONMENTAL QUALITY CITIZENS
EQAC
AFFAIRS COMMITTEE.
Appointments
(24)
Motion by Mavor Pro Tern Ridaeway to appoint the following members
from each City Council District, and confirm the appointments recommended
by EQAC.:
(District 1). Mayor Pro Tem Ridgeway's appointment of Louis Van Dyl.
(District 2) Council Member Proctor's appointment of Jim Killer.
(District 3) Council Member Glovers appointment of Gale Demmer.
(District 4) Mayor Adams' appointment of Richard Rivett.
Volume 54 - Pa¢e 110