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HomeMy WebLinkAbout17 - Newport Beach Brewing CompanyCITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item 17 July 10, 2007 TO: Honorable Mayor and Members of the City Council FROM: James Campbell, Senior Planner (949) 644 -3210, cam pbell(a)city.newport-beach. ca. us SUBJECT: Newport Beach Brewing Company, Review of Use Permit No. 3485 2920 Newport Boulevard (PA2006 -177) 1. Hold a "de novo" public hearing, 2. Determine whether the Newport Beach Brewing Company is operating a bar in violation of use permit Conditions #9 and #10. 3. If a violation of Conditions #9 and #10 is determined, modify Use Permit No. 3485 by adopting the draft attached as resolution Attachment No. 1. 4. If there is no violation of Conditions #9 and #10, modify Use Permit No. 3485 by adopting the draft attached as resolution Attachment No. 2. INTRODUCTION On March 27, 2007, City Council considered the potential modification or revocation of Use Permit No. 3485. The Council acted to modify the use permit principally by prohibiting the sale of distilled spirits after 11 PM. After the hearing, it was discovered that the item was not noticed as a "de novo" hearing and the limitation considered on the sale of distilled spirits conflicts with the California Constitution and State law. The prior Council report and the minutes from March 27, 2007 are attached to this report as Attachment No. 3. The City began reviewing the Newport Beach Brewing Company (NBBC) use permit last year due to complaints received from "The Cannery Village Concerned," a group of residents, business owners and property owners. They alleged that NBBC was violating the conditions of their use permit. A complete discussion of the complaints and issues are contained in the attached Planning Commission reports (Attachment Nos. 4 & 5). The Planning Commission, after three meetings, modified the conditions of approval to address the concerns of the neighborhood (Attachment No. 6). The NBBC voluntarily agreed to the change in conditions, which included operational and physical improvements. An appeal was filed by The Cannery Village Concerned contending that the Commission "failed to take responsibility for the enforcement of the California Coastal Commission permit, and make the restaurant conform to their use permit as such and not as a bar." (Attachment No. 7) Newport Beach Brewing Company July 10, 2007 Page 2 of 10 PUBLIC NOTICE The Newport Beach Brewing Company and the appellant have been notified of this hearing. A hearing notice indicating the subject, time, place and location of this "de novo" hearing was provided in accordance with the Municipal Code. Notice was published in the Daily Pilot, mailed to property owners within 300 feet of the property (excluding abutting roads) and the site was posted a minimum of 10 days in advance of this hearing. DISCUSSION As noted, the Planning Commission acted to add to and modify the conditions of approval of Use Permit No. 3485 on January 4, 2007. Despite having grounds for the revocation or modification of the Use Permit based upon violations of the conditions of approval, no finding to that effect was made as the NBBC voluntarily agreed to changes in the conditions of approval to address neighborhood complaints. Bruce Low, who resides at 411 29th Street adjacent to the Brewing Company's parking lot submitted two letters in support of the appeal (Attachment Nos. 8 & 9). Attachment No. 10 contains the provisions of the Municipal Code that establish the legal standards for the review, modification or revocation of a use permit. In summary, if a use permit was granted on the basis of erroneous information or if the use operates in a disorderly manner or in violation of conditions or other laws, the permit could be modified or revoked. This attachment also contains the specific conditions of approval of this use permit that were at issue in this matter. Attachment No. 11 contains a summary of the history of Use Permit No. 3485 and a summary of the prior proceedings before the Planning Commission and City Council. The following discussion focuses on the 4 key issues at hand. 1. Does the way the NBBC operate after 11:00 PM constitute a violation of Use Permit Conditions # 9 and # 10? In 1993, Use Permit No. 3485 permitted a combination restaurant and brewpub subject to conditions. The brewery itself was to occupy only 32 percent of the total floor area, its use was determined to be ancillary to the restaurant, and therefore, it was considered a permissible use. Condition #10 read as follows: "The operation of the brewery and the service of alcoholic beverages shall be ancillary to the primary food service operation of the restaurant." The term ancillary is defined as "a use that a) is clearly incidental to and customarily found in connection with the principle use; b) is subordinate to and serve the principle use; c) is subordinate in area, extent, or purpose to the principal use served; d) contributes to the comfort convenience, or necessity of the operation, employees, or customers of the principal use served. An ancillary use may be located on a property separate from the principal use." The definition of an ancillary use was modified in 1997 with the comprehensive update and reformatting of the Zoning Code; however, it did not amend its meaning. In 1999, the Use Permit was amended subject to findings and revised conditions of approval allowing the sale of distilled spirits at the restaurant pursuant to a Type 75 ABC license. The Newport Beach Brewing Company July 10, 2007 Page 3 of 10 closing hour on Friday and Saturday nights was also changed from 2:00 AM to 1:00 AM. Condition #10 above was maintained, but it was renumbered as Condition #9. A new Condition #10 was applied, which reads as follows: "The approval of this use permit is for a restaurant/brewpub and shall not be construed as the approval of a bar, cocktail lounge, or other use serving alcoholic beverages during hours not corresponding to regular meal service hours (food products sold or served incidentally to the sale or service of alcoholic beverages shall not be deemed as constituting regular meal service) nor as the approval of a cabaret, nightclub, or other use with the principal purpose of providing live entertainment and /or dancing." These two conditions maintain the principal use as a restaurant and brewpub and not a bar, nightclub or similar use. A bar is defined by Chapter 20.05 of the Zoning Code as: "Establishments with the principal purpose to sell or serve alcoholic beverages for consumption on the premises or any establishment having any of the following characteristics: a. Is licensed as a "public premises" by the California Department of Alcoholic Beverage Control. b. Provides an area for serving alcoholic beverages that is operated during hours not corresponding to regular meal service hours. Food products sold or served incidentally to the sale or service of alcoholic beverages shall not be deemed as constituting regular meal service." Regular meal service hours are not defined by the City. The State Department of Alcoholic Beverage Control (ABC) defines regular meal service hours as 6:00 AM - 9:00 AM, 11:00 AM - 2:00 AM, and 6:00 PM - 9:00 PM. These hours might be used as a guide although the Council retains the discretion to determine what the term means for the purpose of implementing the Zoning Code. NBBC food sales after 11:00 PM are limited. The NBBC General Manager at the May 4, 2006 Planning Commission meeting, stated that the dinner crowd is usually between 7:00 PM and 9:00 PM with alcohol sales being approximately 90% of sales after 11:00 PM. Additionally, NBBC General Manager also indicated that the majority of alcohol sales are distilled spirits. At the March 27, 2007 hearing of the City Council, the NBBC General Manager again indicated that alcohol sales after 11:00 PM are at least 80% of sales, although he indicated that it was a guess and not based upon a review of records. Based upon these representations, it is reasonable to conclude that the use principally serves alcohol after 11:00 PM and the use could be considered a bar by the definition above after 11:00 PM. The change from restaurant to bar based upon alcohol sales being more than food sales could actually be happening earlier in the evening at various times or varying days, but there is no specific evidence in the record to establish a particular time other than 11:00 PM. In the past, the City has looked at the operating characteristics over all hours /days of operation to determine the primary use. In this case, the NBBC principally operates a restaurant during the majority of its operating hours and it operates a bar on Friday and Saturday evenings after 11:00 PM. Staff would conclude that the use as a whole operates as Newport Beach Brewing Company July 10, 2007 Page 4 of 10 primarily as a restaurant and brewpub. As an alternative to the traditional interpretation, the City Council may find that Condition #10 that prohibits the operation of a bar applies during all hours. This would mean that the restaurant aspect of the use must be the principal use during every hour of the day. This interpretation is supported by the administrative record; however, it should be noted that Use Permit No. 3485 authorized a restaurant and a brewpub. Should this be the Council's direction, additional restrictions can be considered to require the restaurant to remain the principal use during all hours. The following three examples can be considered: • The kitchen shall remain open for service during all operating hours with a full menu. • Menus and condiments must remain on the tables. • Alcohol sales must be less than food sales during all hours of operation. The first two items were considered and included by the Planning Commission. The effectiveness of these additional restrictions in achieving the goal of eliminating the bar use is uncertain. While the availability of a full menu makes it more likely food service will occur during all hours, it does not require that customers order food. However, if there is no requirement for providing full menu food service, the likelihood that the primary operation will be a bar is higher. Requiring alcohol sales to be less than food sales during each hour of operation will require a certified audit of cash register receipts and any audit will only be as good as the accuracy of the inputs to the point of sale system. Due to these potential difficulties in enforcement, it is not a recommended restriction. A physical change of the floor plan is another method of eliminating the bar use. The physical bars themselves might be reduced in size in exchange for additional dining tables. Eliminating the stand up bar opposite the existing main bar or the secondary bar near the brew kettles might be considered. Again, these changes will not guarantee food sales in excess of alcohol sales during the late evening and early morning hours as these hours are not typical meal service hours. If the early morning hours are retained and the primary use must be a restaurant during those hours and no one orders food, the NBBC would need to voluntarily regulate sales in order maintain food sales in excess of alcohol sales to maintain compliance. The City could not condition a limit on alcohol served without food service. When food service tapers off later in evening, the establishment would need to close to remain in compliance with conditions. If the Council feels that operational conditions will not effectively limit alcohol sales to be less than food sales after 11:00 PM, the only reliable method of eliminating the bar use is to close the establishment at 11:00 PM. Additionally, staff would recommend the three bulleted items above; however, the alcohol /food percentage limitation is recommended to be based on quarterly sales not hour by hour. This action would effectively eliminate the bar use after 11:00 PM and would eliminate the alleged nuisances testified to by the community attributable to the NBBC even though clear and compelling evidence of direct link between NBBC patrons and nuisances occurring in the parking lot has not been established, in staffs opinion (see below). 2. Is the failure to train employees a violation of Condition F? Newport Beach Brewing Company July 10, 2007 Page 5 of 10 Condition F requires all owners, managers and employees serving and /or selling alcoholic beverages to undergo and successfully complete a certified training program in responsible methods and skills for serving and selling alcoholic beverages. Although the condition specifically states that compliance is required within 180 days of the 1999 the issuance of the certificate of occupancy, the intent is clear that anyone serving alcohol must be trained. Evidence in the record indicates that this training did not occur until September of 2006, although the general manager testified that training did occur in 1999. Based on the testimony and other evidence, staff believes a violation of Condition F occurred and was not remedied until September of 2006. Staff recommends that this condition be modified to read as follows for clarity: F. All owners, managers and employees serving and /or selling alcoholic beverages shall undergo and successfully complete a certified training program in responsible methods and skills for serving and selling alcoholic beverages. To qualify to meet the requirements of this section a 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 operator shall provide proof of successful completion of the training program for all owners, managers and employees serving and /or selling alcoholic beverages within 30 days of the approval of this amendment and new employees shall successfully complete the training within 30 days of initially starting work. The establishment shall ,..,.. Ply with the reaalrements of this seGtiap. withip. ,Qn days of the issuanGe Of +he Aertifirate of may. 3. Does the operation of the NBBC constitute a nuisance in violation of Condition D? Neighbors contend that the Newport Beach Brewing Company is violating its use permit and that the operators are not sufficiently controlling patron behavior, which creates nuisances especially during the late evening and early morning hours. The primary complaint from neighbors is that patrons create noise, carry on loud conversations or on occasion yelling, cause property damage, fight, urinate, defecate and fornicate during the late evening and early morning hours, to the detriment of the neighborhood. On February 10, 2006, Code and Water Quality Enforcement conducted a site visit and the officer observed that there was a line to get into NBBC and the officer noted that some individuals were screaming at each other and a high noise level was being emitted from the premises. This could constitute a violation of Condition D as NBBC staff could have quieted the line, closed windows or doors if they were open or even reduced occupancy to address interior noise levels. Testimony from residents at the prior hearings on this issue supports a conclusion that noise from patron activity outside the establishment has caused nuisances on other occasions. Based on testimony of residents and local business owners, the nuisances listed above occur periodically on and around the NBBC property. However, establishing whether the patrons of the NBBC are the cause of the nuisance behavior has proven difficult to corroborate as the City staff visits and investigations, with the exception of the February 10, 2006 investigation by Code Enforcement, failed to find that there was clear and compelling evidence that the problems occurring were directly related to NBBC patrons. Newport Beach Brewing Company July 10, 2007 Page 6 of 10 Residents have also complained to staff that noise from early morning deliveries, noise from late night recycling disposal and other waste disposal and the general maintenance of the trash enclosure area constitute nuisances. To address the question of nuisances, the NBBC has agreed to make the following physical and operational changes designed to alleviate the issues: • Construction of a trash enclosure cover (construction underway). • Employee training on responsible alcohol sales has been completed. • Relocation of the entrance from the parking lot side of the building to the Newport Boulevard entrance when a line of patrons forms to enter the establishment (completed). • Retention of condiments and menus on the tables (ongoing). • Discontinuation of the late night bar menu while keeping the kitchen open at all times with a full menu (ongoing). • Installation of signs requesting that patrons be respectful of the neighborhood (completed). • Regular security sweeps of the parking lot (ongoing). • Provision of a security presence at least'/ hour after closing (ongoing). • Recycling collection program that minimizes noise generation (ongoing). • Scheduling if maintenance activities outside of sensitive hours (ongoing). The Planning Commission acted to modify the conditions of approval to incorporate the physical and operational changes offered by the Newport Beach Brewing Company. The basis for the change in conditions was the voluntarily acceptance of the changes rather than documented violations of the conditions of approval. Staff recommends all of the changes noted in the bulleted list if the Council chooses not to reduce the permitted hours of operation. If the Council determines that the NBBC is operating as a bar in violation of Condition #10 and chooses to restrict the hours of operation to 11:00 PM, the provision requiring security would not be necessary. If security is provided, the Council might consider the posting of a security guard in the parking lot rather than allowing the current practice of periodic security sweeps as a posted security presence would be more effective. 4. Has the NBBC violated other laws and regulations? Staff is not aware of any violation of law or regulation related to the State Department of Alcoholic Beverage Control. The Department conducted an investigation in 2006 and concluded that no violations were occurring and the investigation was closed. A violation of Special Condition #1 of Coastal Development Permit (CDP) No. 5 -93 -137 occurs when the NBBC opens the entire dining room (in excess of 1,500 square feet) on weekends prior to 5:00 PM. Special Condition #1 states: 'Prior to the issuance of a coastal development permit, the applicant shall execute a deed restriction, in a form and content acceptable to the Executive Director, which shall provided no more than 1,500 square feet of service area for the subject restaurant/brewpub shall be Newport Beach Brewing Company July 10, 2007 Page 7 of 10 open before 5:OOPM. This document shall run with the land, binding all successors and assigns, and shall be recorded free of prior liens." The deed restriction was recorded against the property. On Sunday October 8, 2006, Newport Beach Police Detectives visited the NBBC, arriving at about 12:30 PM. They noted that the restaurant was completely open with patrons occupying tables in all areas with no sections being closed off. When they arrived, they estimated that the restaurant was 70% full and when they left at 2:30 PM it was 90% full. Testimony from residents and the applicant at prior hearings supports the fact that the NBBC has opened the entire restaurant on Saturday and Sunday for many years. Staff has observed that the NBBC routinely closes one section of the dining room before 5PM, making it approximately 1,500 square feet in area, during the week and NBBC opens the entire dining area on Saturday and Sunday before 5:00 PM. This issue is complicated by the fact that Condition #6 of the Use Permit is in conflict with Special Condition #1 of the CDP. It should be noted that the peace and quiet of the neighborhood during the late evening or early morning hours and the question of the principal use are not directly tied to this issue. The appellant believes that Condition #6 is inaccurate and inconsistent with Special Condition #1 and should be modified accordingly. Staff concurs. Condition #6 limits the amount of net public area (1,500 sq. ft.) that can be utilized prior to 5:00 PM, Monday through Friday. This condition was imposed by the City in September of 1993 after the Coastal Commission required the City to rescind its prior approval of the daytime use of the adjacent City parking lot. The Coastal Commission did not want the operation of the Brewing Company to impact the parking supply for coastal visitors. The use of the City parking lot for this establishment originated with the City purchasing the land for the existing municipal parking lot from the owner of the adjacent parking lot presently leased to the NBBC. As a condition of the sale to the City, the property owner received the ability to purchase a maximum of 47 in -lieu parking permits for their use in the City parking lot; however, the availability of the spaces only extended between the hours of 5:00 PM and 6:00 AM daily. The stated reason for this limitation was to avoid reducing the availability of parking to the public as parking during the daytime hours are in higher demand to visitors. Since the NBBC use permit application required more parking than the leased lot provided and the effect of this shortfall was the reduced dining area commensurate with actual parking provided based upon the required parking ratios for restaurants before 5:00 PM, the property owner requested an amendment to the original agreement to allow the daytime use of the City lot. If approved, a larger dining area during the day could be permitted. The City Council approved the request in March of 1993. When the Coastal Commission required this action to be rescinded later that year in exchange for project approval, the property owner was forced to bring the matter back to the City Council. In September of 1993, the City Council rescinded its prior action to modify the terms of the purchase agreement allowing daytime use of the City parking lot. This action disallowed any use of the City parking lot prior to 5:00 PM daily. Concurrent with this action, the City Council modified the conditions of the use permit for the purpose of making them consistent with the conditions applied by the Coastal Commission through the CDP. However, Condition #6 contained provisions allowing the NBBC's use of the City parking lot prior to 5:00 PM on the weekends inconsistent with Special Condition #1 and the Council's own action to rescind its Newport Beach Brewing Company July 10, 2007 Page 8 of 10 prior approval to allow the daytime use of the City parking lot. All other changes necessary to comply with the action of the CCC were made. Pursuant to a separate condition of the CDP requesting that the City enforce Special Condition #1, James Hewicker, the Planning Director sent a letter to the Coastal Commission indicating that the City would enforce Condition #6,. not recognizing that an error was made. In a letter dated May 9, 2007, Coastal Commission Staff Analyst Meg Vaughn indicates that Special Condition #1 applies daily and she goes on to indicate the intent behind the condition as being to minimize conflicts of the use of the abutting public parking lot (Within Attachment #10). Ms. Vaughn was the staff analyst who worked on the NBBC coastal development permit application in 1993. In conclusion, it is reasonable to conclude that Condition #6 is incorrect and staff recommends a change to this condition as follows: 6. The net public area of the restaurant/brewpub, which is devoted to daytime use Monday through Friday prior to 5:00 PM.) shall be limited to 1,500 square feet daily. The balance of the net public area shall be physically closed off to the public by a fixed barrier and shall not be used until after 5:00 PM daily. The revision to Condition #6 corrects the error, is consistent with the Council's action to rescind the amendment of the approval for the daytime use of the City parking lot and it is consistent with Special Condition #1 of the CDP. Lastly, the record reflects that the NBBC and the property owner have previously agreed to this provision as they have accepted Special Condition #1. SUMMARY Staff does not believe the NBBC is in violation of Condition D regarding NBBC's responsibility to correct objectionable patron behavior. It is staffs belief that the late night and early morning problems in the area are attributable to the concentration of late night eating and drinking establishments in the area, the service of alcohol and the availability of public parking adjacent to the Brewing Company. Although the Brewing Company contributes to this neighborhood problem, testimony from the community and the City's own investigative efforts did not provide a clear connection between the nuisance incidents and the NBBC. Additionally, the NBBC has relocated the line to the front of the building and enhanced their security to address the complaints of alleged violation. Furthermore, staff does not believe that the NBBC misrepresented their application in the past as they operate a restaurant with an extensive menu and they operate a brewpub and the full menu is available during all hours of operation. The NBBC may not be in compliance with the following conditions and the revocation or modification of the use permit on this basis would be appropriate. However, City Council interpretation of the following conditions may be the basis for determining that the NBBC is operating in compliance with the use permit and in that case, modification of the conditions may be appropriate to eliminate conflicting interpretations. 1. Condition #9 with alcohol sales dominating food sales after 11:00 PM. The operator contends that when alcohol sales are considered over all operating hours, food sales Newport Beach Brewing Company July 10, 2007 Page 9 of 10 exceed alcohol sales. The City's past practice has been to consider all operating hours when applying conditions similar to this one. 2. Condition #10 if the operation is determined to be a bar after 11:00 PM. It should be noted that the use permit authorizes a brewpub in addition to the restaurant. The NBBC represented both uses in 1993 with the primary use being a restaurant. In 1999, when the amendment to the use permit was approved, the NBBC again represented that the primary use would be a restaurant and the addition of distilled spirits would be a convenience to patrons and they would not operate a bar. If the Council determines that the primary use must be a restaurant during all hours of operation, the NBBC is in violation of Condition #10. If the Council views the operation after 11:00PM as part of the permitted brewpub function and finds it secondary to the restaurant that operates during the majority of the hours, no violation of Condition #10 exists. 3. Condition F: The NBBC violated this condition in the past regarding responsible alcohol sales training and they are currently in compliance. Violations of the conditions of approval are sufficient grounds to modify or revoke the use permit. Depending upon how the Council interprets the conditions, violation of Conditions #9 and #10 may exist. There is no violation of Condition #6 although staff believes the condition to be inconsistent with past Council action and the condition should be modified. There is an ongoing violation of the Special Condition #1 of the Coastal Development Permit and this violation can be used as the grounds for modification or revocation of the use permit. If the Council finds that violations of Conditions #9 & 10 are present, the draft resolution attached as Attachment No. 1 should be considered. In summary, it would change the closing hour to 11:00 PM daily, requires food service during all hours, requires food sales to exceed alcohol sales based upon a quarterly basis, amends Condition #6 to be consistent with the Coastal Development Permit and does not include provisions for added security as it would not likely be necessary with an earlier closing time. If the Council finds that no violations of Conditions #9 & 10 are occurring, the draft resolution in Attachment No. 2 should be considered. This resolution incorporates the changes to the conditions of approval as approved by the Planning Commission with the correction to Condition #6 as noted. Prepared by: James Campbell, Senior Planner Submitted by: WCAVkA FOA vid Lepo, Planning Director Newport Beach Brewing Company July 10, 2007 Page 10 of 10 ATTACHMENTS 1. Draft Council resolution modifying Use Permit No. 3485 2. Draft Council resolution modifying Use Permit No. 3485 3. Staff report and minutes from March 27, 2007 City Council hearing 4. Staff report and minutes from August 17, 2006 Planning Commission hearing 5. Staff report and minutes from January 4, 2007 Planning Commission hearing 6. Planning Commission Resolution No. 1709 7. Appeal dated January 12, 2007 8. Letter from Bruce Low dated February 28, 2007 9. Letter from Bruce Low dated March 2, 2007 10. Relevant legal standards 11. Background of Use Permit No. 3485 and summary of proceedings 12. Additional materials submitted to the Planning Commission & City Council for consideration I L Draft Council resolution modifying Use Permit No. 3485 BLANK � • I-Z RESOLUTION NO. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH MODIFYING THE CONDITIONS OF APPROVAL OF USE PERMIT NO. 3485 FOR PROPERTY LOCATED AT 2920 NEWPORT BOULEVARD (PA2006 -177). WHEREAS, on September 27, 1993, the City approved Use Permit No. 3485 subject to findings and conditions of approval authorizing a restaurant/brewpub with a Type 23 Alcoholic Beverage Control (ABC) license to operate at 2920 Newport Boulevard within the Cannery Village area subject to findings and twenty -nine (29) conditions of approval. A Type 23 license allows a small beer manufacturer (brewpub or micro - brewery) where a brewpub is typically a small brewery with a restaurant. The restaurant and brewpub began operations in 1994 using the business name of Newport Beach Brewing Company referred to hereto as "NBBC" after the issuance of Coastal Development Permit (CDP) No. 5 -93 -137 issued by the California Coastal Commission (CCC). WHEREAS, the NBBC represented to the City that the primary use would be a restaurant and that the brewery and alcohol sales would be secondary to the primary use. This fact is supported by the administrative record from the hearings conducted by the City in 1993. Condition No. 10 was imposed requiring the operation of the brewery and the service of alcoholic beverages to be ancillary to the primary food service operation of the restaurant. WHEREAS, on September 27, 1993, the City Council rescinded its March 8, 1993 approval to allow the purchase and use of in -lieu parking spaces within the Cannery Village municipal parking lot prior to 5:00 PM in association with Use Permit No. 3485. WHEREAS, in 1999, the NBBC requested and received approval of an amendment to Use Permit No. 3485. The amendment allowed the restaurant and brewpub to operate with a Type 75 ABC license and the amendment was subject to findings and additional and revised conditions of approval (twenty -nine [29] in total). A Type 75 license authorizes the sale of beer, wine and distilled sprits at a bona fide eating place plus the brewing of beer. WHEREAS, the NBBC represented to the City that the primary use would be a restaurant and that the brewery and alcohol sales would compliment and be secondary to the primary use. This fact is supported by the administrative record from the proceedings conducted in 1999. Condition No. 9 was imposed requiring the operation of the brewery and the service of alcoholic beverages to be ancillary to the primary food service operation of the restaurant. Condition No. 10 was imposed that provides, 'The approval of this use permit is for a restaurant/brewpub and shall not be construed as the approval of a bar, cocktail lounge, or other use serving alcoholic beverages during hours not corresponding to regular meal service hours (food products sold or served incidentally to the sale or service of alcoholic beverages shall not be deemed as 1-3 Resolution No. Page 2 of 16 constituting regular meal service) nor as the approval of a cabaret, nightclub, or other use with the principal purpose of providing live entertainment and /or dancing." Additionally, the closing hour on Friday and Saturday nights was changed from 2:00 AM to 1:00 AM. WHEREAS, in January of 2006, the City received a complaint from The Cannery Village Concerned, a local group of residents, property owners and business owners, alleging that the Newport Beach Brewing Company was violating the conditions of Use Permit No. 3485. Alleged violations included, among other things: operating a bar rather than a restaurant in violation of Condition No. 10; alcohol sales in excess of food sales in violation of Condition No. 9; opening the entire dining area on weekends before 513M in violation of Coastal Development Permit No. 5 -93 -137, trash in the parking lot in violation of Standard Condition E; failure of the establishment to curb unruly patron behavior outside the establishment in violation of Standard Condition D; and inadequate training of the owner and employees in responsible methods and skills for serving and selling alcoholic beverages in accordance with Standard Condition F. Neighbors contend that patrons create noise, fight, cause property damage, urinate, defecate, and fornicate during the late evening and early morning hours on and in the vicinity of the project site and that the operator was unable or unwilling to discourage or correct these objectionable conditions. Based upon the complaints received, Use Permit No. 3485 was referred to the Planning Commission on May 4, 2006, for review. WHEREAS, on May 4, 2006, the Planning Commission discussed the operation, took input from the neighborhood and directed an official review of the Use Permit. At the May 4, 2006, meeting, testimony was given to the Planning Commission supporting the following facts: a) Jerry Kolbly, General Manager, NBBC represented that the establishment's emphasis was on being a restaurant. He also noted that the kitchen is opened during the hours of alcohol service with the late night menu (pizzas and appetizers) from 10:00 PM to closing. In addition, Mr. Kolbly noted that "service from 11:00 pm and 1 am is about 90% alcohol (55% liquor and 45% beer and wine) and 10% food. (See, Planning Commission Minutes dated May 4, 2006). Operation of the brewery and the service of alcoholic beverages shall be ancillary to the primary food service operation of the restaurant pursuant to Condition #9 and this testimony would support a finding of a violation. Condition #10 prohibits a bar and based upon these representations, staff believes that the limited menu after 10:00 PM and relationship between the sale of alcohol to food violated both Condition Nos. 9 and 10. b) Jerry Kolbly also testified that his staff had received certified alcohol training in 1999, but due to staff turnover, the training had since lapsed. (See, Planning Commission Minutes dated August 17, 2006). No record of completion of a certified alcohol sales training course is in evidence as required pursuant to Condition F. Failure to properly train the owners and staff who serve alcohol in accordance with Condition F would constitute a violation of the condition. On September 6, 2006, the majority of NBBC staff successfully complete the State Department of Alcohol Control Board administered License Education on Alcohol / -y Resolution No. Page 3 of 16 and Drugs (L.E.A.D.) training program. If this course had been completed by all staff members, NBBC would have been in compliance with Condition F that requires training of owners, staff and employees on responsible alcohol sales. They may have previously been in violation of this condition, if there were employees serving and /or selling alcoholic beverages who had not undergone a certified training program. All employees have since received the LEAD training and the NBBC is believed to be in compliance with Condition F. c) Bruce Low, a 29th Street resident, testified for a group of concerned citizens, noting that: i) They do not wish to close the Brewery as it brings value to the neighborhood provided it is operated in accordance with the conditions of approval. ii) There is a discrepancy between the Use Permit conditions and the condition of the Coastal Development Permit related to the size of the dining room on the weekends. iii) The Brewery turns into an obtrusive bar operation after 10:30 PM and they have bouncers, what restaurant has bouncers? iv) The operators have made strides but the more serious issues still remain nuisances to the neighborhood as outlined in the January 2006. d) Joe Reese, 30th Street resident, testified that patrons have to show their identification to get into the establishment. It is not a restaurant, not with bouncers and serving only appetizers after 10:00 p.m. This operation between 10:00 PM and 1:00 AM is nothing more than a bar. This area is out of control and he is disturbed by the noise in the early mornings. e) Drew Wetherhault, 30th Street resident, testified that he supported the prior speakers and he stated that the restaurants and bars need to comply with their use permits. f) Carrie Stade, 29th Street resident, testified she has been awakened with noise and victimized by patrons. g) Stephanie Rosanelli, resident of Cannery Village, noted the noise at night and that she cannot leave her windows open. She too has had her home vandalized by tagging. h) Christine Andros, 30th Street resident, testified the challenges are the noise and patron activities (nuisances) in the parking lot. This establishment operates as a bar. She has spoken to the bar operator on several occasions to inform him of disturbances in his parking lot. i) Tony Shepherdson, 31st Street resident, testified his agreement with previous speakers and stated any help would be welcomed. j) Kevin Weeda, the owner of a business located in the area, testified his agreement with the previous speakers and asked that this item be brought back for formal review. 1-5- Resolution No. Page 4 of 16 k) The net public area of the establishment is no more than 1500 square feet Monday through Friday before 5:00 PM and the net public area exceeds 1500 square feet before 5:00 PM on Saturday and Sunday in violation of Special Condition No. of Coastal Development Permit No. 5 -93 -137. 1) The site was found to be generally free of litter and not in violation of Standard Condition E. At the conclusion of the discussion, the Planning Commission determined that there was sufficient information to indicate that the use was operating in violation of the conditions of approval and in a manner that may have been detrimental to the reasonable peace and quiet of the neighborhood. The Commission also found that there was sufficient information to consider potentially modifying the conditions of approval to alleviate the problems reported by neighbors. The Commission requested and the Planning Director determined pursuant to Section 20.96.040 of the Municipal Code that a review of Use Permit No. 3485 was required. WHEREAS, On August 17, 2006, the Planning Commission held a public hearing regarding the alleged violations of and potential modifications to the conditions of approval of Use Permit No. 3485. The hearing was noticed in accordance with Chapter 20.92 of the Municipal Code and the operator of the Newport Beach Brewing Company was also mailed a notice of the hearing. The following facts were considered by the Planning Commission: a) A Code and Water Quality Enforcement Officer conducted a site visit on February 10, 2006. It was a Friday night, and the officer noted that there was in fact a line to get into NBBC and the officer noted that some individuals were screaming at each other and a high noise level was being emitted from the premises. This would constitute a violation of the nuisance provision in Condition D. (Planning Commission Minutes dated August 17, 2006). b) At the Planning Commission Meeting, Mr. Kolbly, the General Manager of NBBC, acknowledged that the line to get into the establishment could reach up to thirty people. Additionally, John Dale, a patron of NBBC noted that the establishment "does a great job with security at the door." (Planning Commission Minutes dated August 17, 2006). c) At the Planning Commission meeting, Jill Markowitz, owner of a property near NBBC contended that individuals were urinating in public (she did not specify that the individuals came directly from NBBC). She also complained that, in general, there were loud noises coming from the establishment and the parking lot. (See, Planning Commission Minutes dated August 17, 2006). The noises/disturbances would be in violation of the nuisance provision in Condition D. d) Billy Steed testified that the establishment is nice until after 9:00 p.m. when it can get out of control. Noise, public urination and fights coming out of the bar disturb the peace. (See, Planning Commission Minutes dated August 17, 2006). The noises /disturbances would be in violation of the nuisance provision in Condition D. /-4 Resolution No. Page 5 of 16 e) Joe Reese testified at the meeting that he had visited NBBC after 9:00 PM on August 5, 2005 to see how the NBBC operated. He testified that the security guard at the door said that after 9:00 PM the restaurant becomes a bar and that no one under 21 is allowed in or they would lose their liquor license. The restaurant had patrons standing and loud music was playing. We sat at a table and asked the waiter for food who told us the kitchen was closed and the only thing to order was drinks. There were no chips, pretzels or popcorn being served. There were three security guards inside the restaurant and another one was outside. It was obvious that this was acting as a bar, not a restaurant. Conversely, there was testimony given by Zach Stevens, a NBBC employee, on duty that night noting that waiters are told to push food even past 11:00 PM to increase sales and that the kitchen was open as evidenced by the sale of a '/z chicken salad at midnight. (Planning Commission Minutes dated August 17, 2006). Closing the kitchen thereby eliminating food sales with the continued sales of alcohol would constitute a violation of Condition #9 as the sale of alcohol would exceed that of food and a violation of Condition #10 by operating a prohibited bar. f) Robby Hogan, a manager in charge of the kitchen at the establishment, testified that he was on duty the night of August 5, 2005 and the kitchen was open and is always open until the establishment closes (Planning Commission Minutes dated August 17, 2006). g) Roberta Aley, resident, testified that she frequents the brewery and that she always has been able to get food after 12:00 PM and that she has not seen any of these problems after 12:00 PM that have been portrayed by previous speakers. (Planning Commission Minutes dated August 17, 2006). At the conclusion of the hearing, the Planning Commission directed staff to set Use Permit No. 3485 for possible modification and /or revocation given that the NBBC had not addressed issues of nuisance and strict compliance with all conditions of approval. WHEREAS, on or about August 21, 2006, Newport Beach Police informed planning staff that the owners, staff and employees had successfully completed the L.E.A.D. training classes administered by the State Department of Alcoholic Beverage Control as required by Condition F. A violation of Condition F had occurred prior to successful completion of the training curriculum. WHEREAS, Condition #6 of Use Permit No. 3485 states: "The net public area of the restaurant/brewpub, which is devoted to daytime use Monday through Friday (prior to 5:00 PM.) shall be limited to 1,500 square feet. The balance of the net public area shall be physically closed off to the public by a fixed barrier and shall not be used until after 5:00 PM daily." WHEREAS, Special Condition #1 of Coastal Development Permit (CDP) No. 5- 93 -137 states: "Prior to the issuance of a coastal development permit, the applicant shall execute a deed restriction, in a form and content acceptable to the Executive Director, which shall provided no more than 1,500 square feet of service area for the subject restauranUbrewpub shall be open before 5:OOPM. This document shall run with 1-7 Resolution No. Page 6 of 16 the land, binding all successors and assigns, and shall be recorded free of prior liens." On January 19, 1994, the property owner recorded a deed restriction pursuant to Special Condition #1 that restricts the use of the property in accordance with Special Condition #1. WHEREAS, on Sunday October 8, 2006, Newport Beach Police Detectives visited the NBBC, arriving at about 12:30 PM. They noted that the restaurant was completely open with patrons occupying tables in all areas with no sections being closed off. NBBC has admitted during the various public hearings that the NBBC does not limit the size of the dining room on weekends before 5:00 PM. WHEREAS, on January 4, 2007, the Planning Commission held a noticed public hearing on the possible modification of conditions and/or revocation of Use Permit No. 3485. Testimony and a staff report, including a report prepared by the Newport Beach Police Department, were considered by the Planning Commission: a) The Newport Beach Police Department investigation did not reveal any violations of conditions or a significant law enforcement issue with the operation of the NBBC. The Department of Alcoholic Beverage Control was contacted and they reported that the Department did conduct an investigation that was closed due to a lack of evidence of a violation of license conditions. b) All NBBC had successfully completed the L.E.A.D. training classes administered by the State Department of Alcoholic Beverage Control abating past violation of Condition F. c) The NBBC staff voluntarily offered the following physical and operational changes for consideration as amended conditions of approval: i) Construction of a trash enclosure cover. ii) Relocation the entrance from the parking lot side of the building to the Newport Boulevard entrance when a line of patrons forms to enter the establishment. iii) Discontinuation of the removal of condiments and menus from the tables. iv) Discontinuation of the late night bar menu while keeping the kitchen open at all times with a full menu. v) Installation of signs requesting that patrons be respectful of the neighborhood. vi) Initiation of regular security sweeps of the parking lot. vii) Maintenance of a security presence at least '' /z hour after closing. viii)Implementation of a recycling collection program that minimizes noise generation. ix) Scheduling building /business maintenance (waste disposal, deliveries, etc.) activities during hours less objectionable to nearby residents. d) Jerry Kolbly, General Manager of the Newport Beach Brewing Company, testified that the queue line location change has worked well. Instituting the full menu in the late evening and early morning has been advantageous from a business perspective. The LEAD training program has been a valuable experience they /_g Resolution No. Page 7 of 16 have undertaken. Every brewpub cards after 10:00 PM in order to protect their licenses and other restaurants do the same. The Brewing Company maintains a higher percentage of food sales than alcohol sales and have since day one. e) Drew Wetherhault, a local resident, testified that there is a parking problem before 5:00 PM on the weekends. He also indicated his belief that the establishment operates as a bar after 9:00 PM due to high alcohol sales. He noted his desire to see a reduction in the hours of operation on Friday and Saturday having them shut down at 11:00 PM like other restaurants to address nuisances. He also noted that the neighborhood is impacted by after hours activities in the parking lots south of the Brewery and not all of them are attributable to the Brewing Company's patrons. f) Joe Reese, local resident, testified that it is his belief that there is no doubt that the use was intended to be a restaurant and not a bar as alcohol was conditioned to be ancillary to food service. The Brewing Company has security guards at the doors and bouncers inside, it is a bar atmosphere. Every weekend he is awakened by people leaving the drinking establishments. g) Billy Staid, local resident, testified that in spite of the recent operational changes instituted by the Brewing Company, there are still problems with the operation principally with patron activity in the parking lot. He asked if the entrance could be moved to the Newport Boulevard side of the building during the week after 9:00 PM. h) Stephanie Rosanelli, local resident, testified that noise is a problem and suggested that a restaurant would be a better business value. At the conclusion of the public hearing, the Planning Commission adopted Resolution No. 1709 amending Use Permit No. 3485 by modifying the conditions of approval to clarify the meaning of the conditions principally recognizing that a brewpub was originally authorized and that there was no violation of Condition No. 10 and to include the physical and operational changes offered by the NBBC. WHEREAS, the grounds for the modification or revocation of a use permit are established by Condition K of the Use Permit No. 3485, Section 20.89.060.0 and Section 20.96.040 of the Municipal Code, which provide: a) Condition K states that, "The Planning Commission may add to or modify conditions of approval to this use permit upon a determination that this use permit causes injury, or is detrimental to the health, safety, peace, morals, comfort, or general welfare of the community." b) Section 20.89.060(C) provides that, "The Planning Commission, or the Planning Director, as the case may be, may revoke a use permit for an alcoholic beverage outlet 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. / —1 Resolution No. Page 8 of 16 2. That the terms or conditions of approval of the permit have been violated or that other laws or regulations have been violated. 3. The establishment for which the permit was issued is being operated in an illegal or disorderly manner. 4. Noise from the establishment for which the permit was issued violates the Community Noise Control Ordinance (Chapter 10.26 of the Municipal Code). 5. The business or establishment for which the permit was issued has had or is having an adverse impact on the health, safety or welfare of the neighborhood or the general public. 6. There is a violation of or failure to maintain a valid ABC license. 7. The business or establishment fails to fully comply with all the rules, regulations and orders of the California State Department of Alcoholic Beverage Control." c) Section 20.96.040 of the Municipal Code provides that, "The Planning Director has the duty to schedule a discretionary permit for a noticed public hearing to consider its possible revocation provided there are reasonable grounds to do so. The body conducting the hearing shall revoke the 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 or the entitlement granted by the permit for 180 consecutive days." WHEREAS, decisions of the Planning Commission under Section 20.89.060 may be appealed to the City Council pursuant to Section 20.89.070 and decisions of the Planning Commission under Section 20.96.040 may be appealed to the City Council pursuant to Section 20.96.040(H) and Chapter 20.95 of the Municipal Code. WHEREAS, on January 12, 2007, The Cannery Village Concerned filed an appeal of the Planning Commission's action in accordance with Chapter 20.95 (Appeals) of the Municipal Code. WHEREAS, on March 27, 2007, the City Council held a public hearing on the appeal and the possible modification of conditions and /or revocation of Use Permit No. 3485; however, the hearing was not properly noticed in accordance with the Municipal Code. The following information was presented and considered by the City Council: a) Bruce Low, local resident and representative of The Cannery Village Concerned, testified to his belief that the NBBC was violating Conditions #9 and #10 as Resolution No. Page 9 of 16 evidenced by the high alcohol sales admitted by the NBBC. He also testified to his belief that the Condition #6 was not properly modified in September of 1993 to be consistent with Coastal Commission conditions. b) Kevin Weeda, a resident and business owner operating a business on 30th Street, said the group of concerned residents did not want to drive away the business, merely have the applicant comply with the use permit. Most problems occur late at night and he believed the business should be limited to an 11:00 PM closing. c) Jerry Kolbly, co- owner, Newport Beach Brewing Company, spoke about his establishment and the fact that it had maintained the same social atmosphere for the past 12 years. He has attempted to work with adjacent neighbors and staff to resolve the issues. There is a security guard stationed at the rear door and patrons enter and exit only via Newport Boulevard on Friday and Saturday nights after 10:00 PM as a way to address resident concerns. He testified that the quarterly sales of food are 52% and 48% alcohol. He indicated that in the past, the kitchen was closed and that he has now opened the kitchen during all hours to boost food sales. He also testified that there has been no significant operational change in the business since it first opened. Mr. Kolbly confirmed his earlier statements to the Planning Commission that nearly 90% of sales past 11:00 PM are alcohol; however, it was a guess and it may be approximately 80 %; clearly more than food. d) Billy Steed, Cannery Loft owner, adjacent to the Brewery, said he has observed all types of nuisances in the Brewery parking lot and his belief that the NBBC has offered no solutions and it ignores complaints. e) Stephanie Roselli, Cannery Village resident, testified to the NBBC's parking lot being noisy. f) Joe Reese testified that he believed the intent of the 1993 and 1999 use permit approvals were clear in that this establishment was to be a restaurant and not a bar. He was personally carded and denied food after 10:00 PM one evening in 2005 and he has observed individuals standing around drinking after 10:00 PM with no food service. He expressed his belief that this indicates that the NBBC is a bar and not a restaurant in violation of conditions. He asked for enforcement of the use permit. g) Kristen Andros testified that it is her belief that the use operates as a restaurant until 11:00 p.m. and thereafter it operates as a bar as evidenced by a queuing line and carding. h) There was conflicting testimony as to whether the nuisance incidents within the NBBC parking lot are attributable to patrons of the NBBC. The Council acted to modify the conditions of approval; however, the action was not implemented with the .adoption of a written resolution in the light of the fact that inadequate notice of the hearing was provided. / -!/ Resolution No. Page 10 of 16 WHEREAS, on July 10, 2007, the City Council held a duly noticed public hearing regarding the potential modification or revocation of Use Permit No. 3485. The hearing was noticed as a "de novel' hearing and the subject, time, place and date of the hearing included in the notice. The notice was published, mailed and posted a minimum of 10 days in advance of the hearing in accordance with the applicable requirements of the Municipal Code. Evidence both written and oral was presented to and considered by the City Council. NOW, THEREFORE, BE IT RESOLVED, as follows: Section 1. The Recitals above are hereby declared to be true, accurate, and correct Section 2. The City Council hereby finds that the Administrative Record which was considered by the City Council in adopting this Resolution consists, without limitation, of all documents, correspondence, testimony, photographs, and other information presented or provided to the Planning Director, Planning Commission, City Council and City including, without limitation, testimony received at City Council and Planning Commission meetings, staff reports, agendas, notices, meeting minutes, police reports, correspondence, and all other information provided to the City and retained in the files of the City, its staff and attorneys, and such is hereby incorporated by reference into the Administrative Record and is available upon request ( "Administrative Record "). Section 3. The City Council finds that notice of this hearing was provided in conformance with California law and the Municipal Code of the City of Newport Beach. Section 4. The City Council finds as follows: A. There is no clear and compelling evidence to support a conclusion that the NBBC is violating Condition D. The NBBC has increased security and relocated the line to enter the establishment. B. Condition No. 9 requires that the operation of the brewery and the service of alcoholic beverages shall be ancillary to the primary food service operation of the restaurant. An ancillary use is a "use that is clearly incidental to and customarily found in connection with the principal use; is subordinate to and serves the principal use; is subordinate in area, extent, or purpose to the principal use served; contributes to the comfort convenience, or necessity of the operation, employees, or customers of the principal use served..." Based on evidence in the Administrative Record, the City Council finds that the that the Newport Beach Brewing Company is violating and /or has violated the Condition No. 9, because the operation of the brewery and the service of alcoholic beverages after 11:OOPM is not ancillary to the primary food service operation of the restaurant. The operator of the Newport Brewing company has testified that alcohol sales exceed food sales most of the time in the late evening and early morning hours and that alcohol sales are approximately 1 -1Z Resolution No. Page 11 of 16 90% of sales after 11:00 PM. This high percentage of alcohol sales does not constitute ancillary alcohol sales to food sales and violates Condition No. 9. C. Condition #10 prohibits the operation of a bar, cocktail lounge, nightclub or other use serving alcoholic beverages during hours not corresponding to regular meal service hours. Given the description of a bar use contained within Section 20.05.050.K.7 of the Municipal Code, and the fact that after 11:00 PM, alcohol sales are approximately 90% of total sales, the principal activity is the sale of alcoholic beverages and is therefore a bar in violation of Condition #10. D. The City is not aware of any violation of law or regulation related to the State Department of Alcoholic Beverage Control. The Department conducted an investigation in 2006 and concluded that no violations were occurring and the investigation was closed. E. Special Condition #1 states: 'Prior to the issuance of a coastal development permit, the applicant shall execute a deed restriction, in a form and content acceptable to the Executive Director, which shall provided no more than 1,500 square feet of service area for the subject restaurant/brewpub shall be open before 5:OOPM. This document shall run with the land, binding all successors and assigns, and shall be recorded free of prior liens." The property owner recorded the deed restriction that includes the daytime limitation on service area and it is a binding restriction on the NBBC. A violation of Special Condition #1 of Coastal Development Permit (CDP) No. 5 -93 -137 occurs when the NBBC opens the entire dining room (in excess of 1,500 square feet) on weekends prior to 5:00 PM. On Sunday October 8, 2006, Newport Beach Police Detectives visited the NBBC, arriving at about 12:30 PM. They noted that the restaurant was completely open with patrons occupying tables in all areas with no sections being closed off. F. Condition #6 is in conflict with Special Condition #1 and it is inconsistent with the September 27, 1993, action of the City Council to rescind the approval authorizing the use of in -lieu parking spaces in the Cannery Village public parking lot prior to 5:00 PM. Section 5. The City Council finds that pursuant to Condition K of the Use Permit No. 3485, Section 20.89.060.0 and Section 20.96.040 of the Municipal Code, the Administrative Record, the findings stated above, sufficient grounds exist to modify and add to the conditions of approval for Use Permit No. 3485. Section 6. City Council of the City of Newport Beach does hereby approve an amendment and modification of Use Permit No. 3485 as set forth in as Exhibit "A ". l -J3 Resolution No. Page 12 of 16 Section 7. This resolution shall take effect immediately upon adoption. Passed and adopted by the City Council of Newport Beach at a regular meeting held on the July 10, 2007 by the following vote to wit: AYES, COUNCIL MEM NOES, COUNCIL MEM ABSENT, COUNCIL MEM ATTEST: CITY CLERK MAYOR / - /I Resolution No. Page 13 of 16 Exhibit A Use Permit No. 3485 CONDITIONS: 1. The proposed development shall be in substantial conformance with the approved site plan, floor plan and elevations, except as noted below. 2. That a covenant or other suitable, legally binding agreement shall be recorded against the off -site parking lot assuring that all of the requirements of Section 20.63.080 (1) of the Municipal Code, will be met by the current and future property owners. Said covenant or agreement may include provisions for its future termination at such time as the development on the building site is removed or at such time as the floor area devoted to the restaurant/brewpub reverts back to a base FAR use. 3. The applicant shall provide a minimum of one parking space for each 50 square feet of net public area before 5:00 p.m. and one parking space for each 40 square feet of net public area after 5:00 p.m. in conjunction with the restaurant/brewpub. 4. An amended off -site parking agreement approved by the City Council shall be maintained, guaranteeing that a minimum of 41 parking spaces shall be provided on property located on Lots 18 -21 and portions of Lots 17 and 22, Block 230, Lancaster's Addition, for the duration of the existing and proposed uses located on Parcel 1, Parcel Map 92 -40 (Resubdivision No. 527). 5. The property owner shall pay for 29 in -lieu parking spaces in the Cannery Village Municipal Parking Lot on an annual basis for the nighttime operation (after 5:00 p.m.) of the restaurant/brewpub use as agreed upon by the Sales Agreement between the City of Newport Beach and the property owner. 6. The net public area of the restaurant/brewpub, which is devoted to daytime use prior to 5:00 p.m. shall be limited to 1,500 square feet daily. The balance of the net public area shall be physically closed off to the public by a fixed barrier and shall not be used until after 5:00 p.m. daily. 7. The hours of operation for the restaurant/brewpub shall be limited to the hours between 6:00 a.m. and 11:00 p.m. daily. 8. All employees shall park either in the privately owned off -site parking area or in one of the municipal parking lots in the area. 9. The operation of the brewery and the service of alcoholic beverages shall be ancillary to the primary food service operation of the restaurant during all hours of operation (e.g. the brewery and the service of alcoholic beverages may not be conducted without the concurrent operation of the restaurant during all hours Resolution No. Page 14 of 16 the use is open for business). The gross sales of alcoholic beverages, on an hourly basis, shall not exceed the gross sales of food during the same period. The operator shall at all times maintain records which reflect separately the gross sales of food and the gross sales of alcoholic beverages and the time of the transaction. Said records shall be maintained and made available to the Planning Director upon request. 10. The approval of this use permit is for a restaurant/brewpub and shall not be construed as the approval of a bar, cocktail lounge, or other use serving alcoholic beverages during hours not corresponding to regular meal service hours (food products sold or served incidentally to the sale or service of alcoholic beverages shall not be deemed as constituting regular meal service) nor as the approval of a cabaret, nightclub, or other use with the principal purpose of providing live entertainment and /or dancing. The kitchen shall remain open for the service of meals ordered by patrons and a full menu shall be provided at all times that the business is open. Menus and condiments shall be available at the tables at all times. 11. No outdoor loudspeakers or paging system shall be permitted in conjunction with the proposed location. 12. A washout area for refuse containers shall be provided in such a way as to allow direct drainage into the sewer system and not into the Bay or storm drains, unless otherwise approved by the Building Department. 13. Kitchen exhaust fans shall be designed to control smoke and odor to the satisfaction of the Building Department. 14. All mechanical equipment and trash areas shall be screened from surrounding public streets and alleys and adjoining properties. The existing trash enclosure shall be covered and the doors or gates to the enclosure shall be modified to be self - closing and self - locking for security. 15. Deleted 16. Should prerecorded music be played within the restaurant facility, such music shall be confined to the interior of the building, and all doors and windows shall be kept closed while such music is played. 17. A special events permit is required for any event or promotional activity outside the normal operational characteristics of this restaurant business 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. 18. Should this business be sold or otherwise come under different ownership, any future owners or assignees shall be notified of the conditions of this approval by either the current business owner, property owner or the leasing company. A — UV Resolution No. Page 15 of 16 19. The parking lot entrance to the building shall not be used as an entrance or exit (except in the case of an emergency) after 9:00 PM daily. 20. The operator shall discourage loitering on site at all times the establishment is open or employees or owners are present. 21. The operator shall conspicuously post and maintain signs indicating to patrons to be courteous to residential neighbors while outside the establishment. 23. Deliveries and exterior property maintenance activities shall not be conducted between 8PM and 8AM daily. 24. The use shall maintain a Type 23 or a Type 75 license to sell alcoholic beverages from the State Department of Alcoholic Beverage Control. No other license type shall be permitted without review and approval by the Planning Commission. 25. Live entertainment and dancing shall be prohibited without an amendment to this Use Permit and a Live Entertainment Permit and /or a Cafe Dance permit issued by the City Manager's Office. STANDARD CITY REQUIREMENTS: A. The project is subject to all applicable City ordinances, policies, and standards, unless specifically waived or modified by the conditions of approval. B. Signs and displays shall not obstruct the sales counter, cash register, seller and customer from view from the exterior. C. Loitering, open container, and other signs specified by the Alcoholic Beverage Control Act shall be posted as required by the ABC. D. The applicant shall take reasonable steps to discourage and correct objectionable conditions that constitute a nuisance in parking areas, sidewalks, alleys and areas surrounding the alcoholic beverage outlet and adjacent properties must be taken during business hours if directly related to the patrons of the subject alcoholic beverage outlet. E. The exterior of the alcoholic beverage outlet 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. F. All owners, managers and employees serving and /or selling alcoholic beverages shall undergo and successfully complete a certified training program in responsible methods and skills for serving and selling alcoholic beverages. To qualify to meet the requirements of this section a certified program must meet the standards of the California Coordinating Council on Responsible Resolution No. Page 16 of 16 Beverage Service or other certifying /licensing body, which the State may designate. The operator shall provide proof of completion for all owners, managers and employees within 30 days of the approval of this amendment and new employees shall successfully complete the training within 30 days of initially starting work. G. The project shall comply with the provisions of Chapter 14.30 of the Newport Beach Municipal Code for commercial kitchen grease disposal. H. All signs shall conform to the provisions of Chapter 20.67 of the Municipal Code. I. This Use Permit for an alcoholic beverage outlet granted in accordance with the terms of this chapter shall expire within 12 months from the date of approval unless a license has been issued or transferred by the California State Department of Alcoholic Beverage Control prior to the expiration date. J. Coastal Commission approval shall be obtained prior to issuance of any building permits. K. The Planning Commission may add to or modify conditions of approval to this nination that this Use Permit causes injury, or is afety, peace, morals, comfort, or general welfare of r -113 Attachment No. 2 Draft Council resolution modifying Use Permit No. 3485 Z-/ a. ' 4-"M,,!Aak 2,4 RESOLUTION NO. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH MODIFYING THE CONDITIONS OF APPROVAL OF USE PERMIT NO. 3485 FOR PROPERTY LOCATED AT 2920 NEWPORT BOULEVARD (PA2006 -177). WHEREAS, on September 27, 1993, the City approved Use Permit No. 3485 subject to findings and conditions of approval authorizing a restaurant/brewpub with a Type 23 Alcoholic Beverage Control (ABC) license to operate at 2920 Newport Boulevard within the Cannery Village area subject to findings and twenty -nine (29) conditions of approval. A Type 23 license allows a small beer manufacturer (brewpub or micro - brewery) where a brewpub is typically a small brewery with a restaurant. The restaurant and brewpub began operations in 1994 using the business name of Newport Beach Brewing Company referred to hereto as "NBBC" after the issuance of Coastal Development Permit (CDP) No. 5 -93 -137 issued by the California Coastal Commission (CCC). WHEREAS, the NBBC represented to the City that the primary use would be a restaurant and that the brewery and alcohol sales would be secondary to the primary use. This fact is supported by the administrative record from the hearings conducted by the City in 1993. Condition No. 10 was imposed requiring the operation of the brewery and the service of alcoholic beverages to be ancillary to the primary food service operation of the restaurant. WHEREAS, on September 27, 1993, the City Council rescinded its March 8, 1993 approval to allow the purchase and use of in -lieu parking spaces within the Cannery Village municipal parking lot prior to 5:00 PM in association with Use Permit No. 3485. WHEREAS, in 1999, the NBBC requested and received approval of an amendment to Use Permit No. 3485. The amendment allowed the restaurant and brewpub to operate with a Type 75 ABC license and the amendment was subject to findings and additional and revised conditions of approval (twenty -nine [29] in total). A Type 75 license authorizes the sale of beer, wine and distilled sprits at a bona fide eating place plus the brewing of beer. WHEREAS, the NBBC represented to the City that the primary use would be a restaurant and that the brewery and alcohol sales would compliment and be secondary to the primary use. This fact is supported by the administrative record from the proceedings conducted in 1999. Condition No. 9 was imposed requiring the operation of the brewery and the service of alcoholic beverages to be ancillary to the primary food service operation of the restaurant. Condition No. 10 was imposed that provides, "The approval of this use permit is for a restaurant/brewpub and shall not be construed as the approval of a bar, cocktail lounge, or other use serving alcoholic beverages during hours not corresponding to regular meal service hours (food products sold or served incidentally to the sale or service of alcoholic beverages shall not be deemed as 2.3 Resolution No. Page 2 of 16 constituting regular meal service) nor as the approval of a cabaret, nightclub, or other use with the principal purpose of providing live entertainment and/or dancing." Additionally, the closing hour on Friday and Saturday nights was changed from 2:00 AM to 1:00 AM. WHEREAS, in January of 2006, the City received a complaint from The Cannery Village Concerned, a local group of residents, property owners and business owners, alleging that the Newport Beach Brewing Company was violating the conditions of Use Permit No. 3485. Alleged violations included, among other things: operating a bar rather than a restaurant in violation of Condition No. 10; alcohol sales in excess of food sales in violation of Condition No. 9; opening the entire dining area on weekends before 5PM in violation of Coastal Development Permit No. 5 -93 -137, trash in the parking lot in violation of Standard Condition E; failure of the establishment to curb unruly patron behavior outside the establishment in violation of Standard Condition D; and inadequate training of the owner and employees in responsible methods and skills for serving and selling alcoholic beverages in accordance with Standard Condition F. Neighbors contend that patrons create noise, fight, cause property damage, urinate, defecate, and fornicate during the late evening and early morning hours on and in the vicinity of the project site and that the operator was unable or unwilling to discourage or correct these objectionable conditions. Based upon the complaints received, Use Permit No. 3485 was referred to the Planning Commission on May 4, 2006, for review. WHEREAS, on May 4, 2006, the Planning Commission discussed the operation, took input from the neighborhood and directed an official review of the Use Permit. At the May 4, 2006, meeting, testimony was given to the Planning Commission supporting the following facts: a) Jerry Kolbly, General Manager, NBBC represented that the establishment's emphasis was on being a restaurant. He also noted that the kitchen is opened during the hours of alcohol service with the late night menu (pizzas and appetizers) from 10:00 PM to closing. In addition, Mr. Kolbly noted that "service from 11:00 pm and 1 am is about 90% alcohol (55% liquor and 45% beer and wine) and 10% food. (See, Planning Commission Minutes dated May 4, 2006). Operation of the brewery and the service of alcoholic beverages shall be ancillary to the primary food service operation of the restaurant pursuant to Condition #9 and this testimony would support a finding of a violation. Condition #10 prohibits a bar and based upon these representations, staff believes that the limited menu after 10:00 PM and relationship between the sale of alcohol to food violated both Condition Nos. 9 and 10. b) Jerry Kolbly also testified that his staff had received certified alcohol training in 1999, but due to staff turnover, the training had since lapsed. (See, Planning Commission Minutes dated August 17, 2006). No record of completion of a certified alcohol sales training course is in evidence required pursuant to Condition F. Failure to properly train the owners and staff who serve alcohol in accordance with Condition F would constitute a violation of the condition. On September 6, 2006, the majority of NBBC staff successfully complete the State Department of Alcohol Control Board administered License Education on Alcohol 2.Y Resolution No. Page 3 of 16 and Drugs (L.E.A.D.) training program. If this course had been completed by all staff members, NBBC would have been in compliance with Condition F that requires training of owners, staff and employees on responsible alcohol sales. They may have previously been in violation of this condition, if there were employees serving and /or selling alcoholic beverages who had not undergone a certified training program. All employees have since received the LEAD training and the NBBC is believed to be in compliance with Condition F. c) Bruce Low, a 29th Street resident, testified for a group of concerned citizens, noting that: i) They do not wish to close the Brewery as it brings value to the neighborhood provided it is operated in accordance with the conditions of approval. ii) There is a discrepancy between the Use Permit conditions and the condition of the Coastal Development Permit related to the size of the dining room on the weekends. iii) The Brewery turns into an obtrusive bar operation after 10:30 PM and they have bouncers, what restaurant has bouncers? iv) The operators have made strides but the more serious issues still remain nuisances to the neighborhood as outlined in the January 2006. d) Joe Reese, 30th Street resident, testified that patrons have to show their identification to get into the establishment. It is not a restaurant, not with bouncers and serving only appetizers after 10:00 p.m. This operation between 10:00 PM and 1:00 AM is nothing more than a bar. This area is out of control and he is disturbed by the noise in the early mornings. e) Drew Wetherhault, 30th Street resident, testified that he supported the prior speakers and he stated that the restaurants and bars need to comply with their use permits. f) Carrie Stade, 29th Street resident, testified she has been awakened with noise and victimized by patrons. g) Stephanie Rosanelli, resident of Cannery Village, noted the noise at night and that she cannot leave her windows open. She too has had her home vandalized by tagging. h) Christine Andros, 30th Street resident, testified the challenges are the noise and patron activities (nuisances) in the parking lot. This establishment operates as a bar. She has spoken to the bar operator on several occasions to inform him of disturbances in his parking lot. i) Tony Shepherdson, 31st Street resident, testified his agreement with previous speakers and stated any help would be welcomed. j) Kevin Weeda, the owner of a business located in the area, testified his agreement with the previous speakers and asked that this item be brought back for formal review. Z. Resolution No. Page 4 of 16 k) The net public area of the establishment is no more than 1500 square feet Monday through Friday before 5:00 PM and the net public area exceeds 1500 square feet before 5:00 PM on Saturday and Sunday in violation of Special Condition No. of Coastal Development Permit No. 5 -93 -137. 1) The site was found to be generally free of litter and not in violation of Standard Condition E. At the conclusion of the discussion, the Planning Commission determined that there was sufficient information to indicate that the use was operating in violation of the conditions of approval and in a manner that may have been detrimental to the reasonable peace and quiet of the neighborhood. The Commission also found that there was sufficient information to consider potentially modifying the conditions of approval to alleviate the problems reported by neighbors. The Commission requested and the Planning Director determined pursuant to Section 20.96.040 of the Municipal Code that a review of Use Permit No. 3485 was required. WHEREAS, On August 17, 2006, the Planning Commission held a public hearing regarding the alleged violations of and potential modifications to the conditions of approval of Use Permit No. 3485. The hearing was noticed in accordance with Chapter 20.92 of the Municipal Code and the operator of the Newport Beach Brewing Company was also mailed a notice of the hearing. The following facts were considered by the Planning Commission: a) A Code and Water Quality Enforcement Officer conducted a site visit on February 10, 2006. It was a Friday night, and the officer noted that there was in fact a line to get into NBBC and the officer noted that some individuals were screaming at each other and a high noise level was being emitted from the premises. This would constitute a violation of the nuisance provision in Condition D. (Planning Commission Minutes dated August 17, 2006). b) At the Planning Commission Meeting, Mr. Kolbly, the General Manager of NBBC, acknowledged that the line to get into the establishment could reach up to thirty people. Additionally, John Dale, a patron of NBBC noted that the establishment "does a great job with security at the door." (See, Planning Commission Minutes dated August 17, 2006). c) At the Planning Commission meeting, Jill Markowitz, owner of a property near NBBC contended that individuals were urinating in public (she did not specify that the individuals came directly from NBBC). She also complained that, in general, there were loud noises coming from the establishment and the parking lot. (Planning Commission Minutes dated August 17, 2006). The noises /disturbances would be in violation of the nuisance provision in Condition D. d) Billy Steed testified that the establishment is nice until after 9:00 p.m. when it can get out of control. Noise, public urination and fights coming out of the bar disturb the peace. (See, Planning Commission Minutes dated August 17, 2006). The noises /disturbances would be in violation of the nuisance provision in Condition D. Resolution No. Page 5 of 16 e) Joe Reese testified at the meeting that he had visited NBBC after 9:00 PM on August 5, 2005 to see how the NBBC operated. He testified that the security guard at the door said that after 9:00 PM the restaurant becomes a bar and that no one under 21 is allowed in or they would lose their liquor license. The restaurant had patrons standing and loud music was playing. We sat at a table and asked the waiter for food who told us the kitchen was closed and the only thing to order was drinks. There were no chips, pretzels or popcorn being served. There were three security guards inside the restaurant and another one was outside. It was obvious that this was acting as a bar, not a restaurant. Conversely, there was testimony given by Zach Stevens, a NBBC employee, on duty that night noting that waiters are told to push food even past 11:00 PM to increase sales and that the kitchen was open as evidenced by the sale of a '/2 chicken salad at midnight. (Planning Commission Minutes dated August 17, 2006). Closing the kitchen thereby eliminating food sales with the continued sales of alcohol would constitute a violation of Condition #9 as the sale of alcohol would exceed that of food and a violation of Condition #10 by operating a prohibited bar. f) Robby Hogan, a manager in charge of the kitchen at the establishment, testified that he was on duty the night of August 5, 2005 and the kitchen was open and is always open until the establishment closes (Planning Commission Minutes dated August 17, 2006). g) Roberta Aley, resident, testified that she frequents the brewery and that she always has been able to get food after 12:00 PM and that she has not seen any of these problems after 12:00 PM that have been portrayed by previous speakers. (Planning Commission Minutes dated August 17, 2006). At the conclusion of the hearing, the Planning Commission directed staff to set Use Permit No. 3485 for possible modification and /or revocation given that the NBBC had not addressed issues of nuisance and strict compliance with all conditions of approval. WHEREAS, on or about August 21, 2006, Newport Beach Police informed planning staff that the owners, staff and employees had successfully completed the L.E.A.D. training classes administered by the State Department of Alcoholic Beverage Control as required by Condition F. A violation of Condition F had occurred prior to successful completion of the training curriculum. WHEREAS, Condition #6 of Use Permit No. 3485 states: 'The net public area of the restaurant/brewpub, which is devoted to daytime use Monday through Friday (prior to 5:00 PM.) shall be limited to 1,500 square feet. The balance of the net public area shall be physically closed off to the public by a fixed barrier and shall not be used until after 5:00 PM daily." WHEREAS, Special Condition #1 of Coastal Development Permit (CDP) No. 5- 93 -137 states: "Prior to the issuance of a coastal development permit, the applicant shall execute a deed restriction, in a form and content acceptable to the Executive Director, which shall provided no more than 1,500 square feet of service area for the subject restauranUbrewpub shall be open before 5:00PM. This document shall run with WN Resolution No. Page 6 of 16 the land, binding all successors and assigns, and shall be recorded free of prior liens." On January 19, 1994, the property owner recorded a deed restriction pursuant to Special Condition #1 that restricts the use of the property in accordance with Special Condition #1. WHEREAS, on Sunday October 8, 2006, Newport Beach Police Detectives visited the NBBC, arriving at about 12:30 PM. They noted that the restaurant was completely open with patrons occupying tables in all areas with no sections being closed off. NBBC has admitted during the various public hearings that the NBBC does not limit the size of the dining room on weekends before 5:00 PM. WHEREAS, on January 4, 2007, the Planning Commission held a noticed public hearing on the possible modification of conditions and /or revocation of Use Permit No. 3485. Testimony and a staff report, including a report prepared by the Newport Beach Police Department, were considered by the Planning Commission: a) The Newport Beach Police Department investigation did not reveal any violations of conditions or a significant law enforcement issue with the operation of the NBBC. The Department of Alcoholic Beverage Control was contacted and they reported that the Department did conduct an investigation that was closed due to a lack of evidence of a violation of license conditions. b) All NBBC had successfully completed the L.E.A.D. training classes administered by the State Department of Alcoholic Beverage Control abating past violation of Condition F. c) The NBBC staff voluntarily offered the following physical and operational changes for consideration as amended conditions of approval: i) Construction of a trash enclosure cover. ii) Relocation the entrance from the parking lot side of the building to the Newport Boulevard entrance when a line of patrons forms to enter the establishment. iii) Discontinuation of the removal of condiments and menus from the tables. iv) Discontinuation of the late night bar menu while keeping the kitchen open at all times with a full menu. v) Installation of signs requesting that patrons be respectful of the neighborhood. vi) Initiation of regular security sweeps of the parking lot. vii) Maintenance of a security presence at least'' /: hour after closing. viii) Implementation of a recycling collection program that minimizes noise generation. ix) Scheduling building /business maintenance (waste disposal, deliveries, etc.) activities during hours less objectionable to nearby residents. d) Jerry Kolbly, General Manager of the Newport Beach Brewing Company, testified that the queue line location change has worked well. Instituting the full menu in the late evening and early morning has been advantageous from a business perspective. The LEAD training program has been a valuable experience they Z. � Resolution No. Page 7 of 16 have undertaken. Every brewpub cards after 10:00 PM in order to protect their licenses and other restaurants do the same. The Brewing Company maintains a higher percentage of food sales than alcohol sales and have since day one. e) Drew Wetherhault, a local resident, testified that there is a parking problem before 5:00 PM on the weekends. He also indicated his belief that the establishment operates as a bar after 9:00 PM due to high alcohol sales. He noted his desire to see a reduction in the hours of operation on Friday and Saturday having them shut down at 11:00 PM like other restaurants to address nuisances. He also noted that the neighborhood is impacted by after hours activities in the parking lots south of the Brewery and not all of them are attributable to the Brewing Company's patrons. f) Joe Reese, local resident, testified that it is his belief that there is no doubt that the use was intended to be a restaurant and not a bar as alcohol was conditioned to be ancillary to food service. The Brewing Company has security guards at the doors and bouncers inside, it is a bar atmosphere. Every weekend he is awakened by people leaving the drinking establishments. g) Billy Staid, local resident, testified that in spite of the recent operational changes instituted by the Brewing Company, there are still problems with the operation principally with patron activity in the parking lot. He asked if the entrance could be moved to the Newport Boulevard side of the building during the week after 9:00 PM. h) Stephanie Rosanelli, local resident, testified that noise is a problem and suggested that a restaurant would be a better business value. At the conclusion of the public hearing, the Planning Commission adopted Resolution No. 1709 amending Use Permit No. 3485 by modifying the conditions of approval to clarify the meaning of the conditions principally recognizing that a brewpub was originally authorized and that there was no violation of Condition No. 10 and to include the physical and operational changes offered by the NBBC. WHEREAS, the grounds for the modification or revocation of a use permit are established by Condition K of the Use Permit No. 3485, Section 20.89.060.0 and Section 20.96.040 of the Municipal Code, which provide: a) Condition K states that, "The Planning Commission may add to or modify conditions of approval to this use permit upon a determination that this use permit causes injury, or is detrimental to the health, safety, peace, morals, comfort, or general welfare of the community." b) Section 20.89.060(C) provides that, "The Planning Commission, or the Planning Director, as the case may be, may revoke a use permit for an alcoholic beverage outlet 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. `f Resolution No. Page 8 of 16 2. That the terms or conditions of approval of the permit have been violated or that other laws or regulations have been violated. 3. The establishment for which the permit was issued is being operated in an illegal or disorderly manner. 4. Noise from the establishment for which the permit was issued violates the Community Noise Control Ordinance (Chapter 10.26 of the Municipal Code). 5. The business or establishment for which the permit was issued has had or is having an adverse impact on the health, safety or welfare of the neighborhood or the general public. 6. There is a violation of or failure to maintain a valid ABC license. 7. The business or establishment fails to fully comply with all the rules, regulations and orders of the California State Department of Alcoholic Beverage Control." c) Section 20.96.040 of the Municipal Code provides that, "The Planning Director has the duty to schedule a discretionary permit for a noticed public hearing to consider its possible revocation provided there are reasonable grounds to do so. The body conducting the hearing shall revoke the 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 or the entitlement granted by the permit for 180 consecutive days." WHEREAS, decisions of the Planning Commission under Section 20.89.060 may be appealed to the City Council pursuant to Section 20.89.070 and decisions of the Planning Commission under Section 20.96.040 may be appealed to the City Council pursuant to Section 20.96.040(H) and Chapter 20.95 of the Municipal Code. WHEREAS, on January 12, 2007, The Cannery Village Concerned filed an appeal of the Planning Commission's action in accordance with Chapter 20.95 (Appeals) of the Municipal Code. WHEREAS, on March 27, 2007, the City Council held a public hearing on the appeal and the possible modification of conditions and/or revocation of Use Permit No. 3485; however, the hearing was not properly noticed in accordance with the Municipal Code. The following information was presented and considered by the City Council: a) Bruce Low, local resident and representative of The Cannery Village Concerned, testified to his belief that the NBBC was violating Conditions #9 and #10 as 2.10 Resolution No. Page 9 of 16 evidenced by the high alcohol sales admitted by the NBBC. He also testified to his belief that the Condition #6 was not properly modified in September of 1993 to be consistent with Coastal Commission conditions. b) Kevin Weeda, a resident and business owner operating a business on 30th Street, said the group of concerned residents did not want to drive away the business, merely have the applicant comply with the use permit. Most problems occur late at night and he believed the business should be limited to an 11:00 PM closing. c) Jerry Kolbly, co- owner, Newport Beach Brewing Company, spoke about his establishment and the fact that it had maintained the same social atmosphere for the past 12 years. He has attempted to work with adjacent neighbors and staff to resolve the issues. There is a security guard stationed at the rear door and patrons enter and exit only via Newport Boulevard on Friday and Saturday nights after 10:00 PM as a way to address resident concerns. He testified that the quarterly sales of food are 52% and 48% alcohol. He indicated that in the past, the kitchen was closed and that he has now opened the kitchen during all hours to boost food sales. He also testified that there has been no significant operational change in the business since it first opened. Mr. Kolbly confirmed his earlier statements to the Planning Commission that nearly 90% of sales past 11:00 PM are alcohol; however, it was a guess and it may be approximately 80 %; clearly more than food. d) Billy Steed, Cannery Loft owner, adjacent to the Brewery, said he has observed all types of nuisances in the Brewery parking lot and his belief that the NBBC has offered no solutions and it ignores complaints. e) Stephanie Roselli, Cannery Village resident, testified to the NBBC's parking lot being noisy. f) Joe Reese testified that he believed the intent of the 1993 and 1999 use permit approvals were clear in that this establishment was to be a restaurant and not a bar. He was personally carded and denied food after 10:00 PM one evening in 2005 and he has observed individuals standing around drinking after 10:00 PM with no food service. He expressed his belief that this indicates that the NBBC is a bar and not a restaurant in violation of conditions. He asked for enforcement of the use permit. g) Kristen Andros testified that it is her belief that the use operates as a restaurant until 11:00 p.m. and thereafter it operates as a bar as evidenced by a queuing line and carding. h) There was conflicting testimony as to whether the nuisance incidents within the NBBC parking lot are attributable to patrons of the NBBC. The Council acted to modify the conditions of approval; however, the action was not implemented with the adoption of a written resolution in the light of the fact that inadequate notice of the hearing was provided. 2.11 Resolution No. Page 10 of 16 WHEREAS, on July 10, 2007, the City Council held a duly noticed public hearing regarding the potential modification or revocation of Use Permit No. 3485. The hearing was noticed as a "de novo" hearing and the subject, time, place and date of the hearing included in the notice. The notice was published, mailed and posted a minimum of 10 days in advance of the hearing in accordance with the applicable requirements of the Municipal Code. Evidence both written and oral was presented to and considered by the City Council. NOW, THEREFORE, BE IT RESOLVED, as follows: Section 1. The Recitals above are hereby declared to be true, accurate, and correct Section 2. The City Council hereby finds that the Administrative Record which was considered by the City Council in adopting this Resolution consists, without limitation, of all documents, correspondence, testimony, photographs, and other information presented or provided to the Planning Director, Planning Commission, City Council and City including, without limitation, testimony received at City Council and Planning Commission meetings, staff reports, agendas, notices, meeting minutes, police reports, correspondence, and all other information provided to the City and retained in the files of the City, its staff and attorneys, and such is hereby incorporated by reference into the Administrative Record and is available upon request ( "Administrative Record "). Section 3. The City Council finds that notice of this hearing was provided in conformance with California law and the Municipal Code of the City of Newport Beach. Section 4. The City Council finds as follows: A. There is no clear and compelling evidence to support a conclusion that the NBBC is violating Condition D. The NBBC has increased security and relocated the line to enter the establishment. B. Condition #9 requires that the operation of the brewery and the service of alcoholic beverages shall be ancillary to the primary food service operation of the restaurant. The NBBC has testified that food sales exceed alcohol sales based upon quarterly sales even though alcohol sales far exceed food sales after 11:00 PM. Although the percentage of alcohol sales are high, no violation of Condition #9 occurs provided substantial food services is maintained, meal service is available during all operating hours and that food sales exceed alcohol sales on a quarterly basis. C. Condition #10 authorizes a restaurant and a brewpub as the primary use and prohibits the operation of a bar, cocktail lounge, nightclub or other use serving alcoholic beverages during hours not corresponding to regular meal service hours as a primary use. The NBBC principally operates as a restaurant during the majority of its operating hours and it operates as a bar on Friday and Saturday evenings after 11:00 PM with the kitchen remaining open for service during all operating hours. This operating character is consistent with that of a restaurant and brewpub. 2.12- Resolution No. Page 11 of 16 D. The City is not aware of any violation of law or regulation related to the State Department of Alcoholic Beverage Control. The Department conducted an investigation in 2006 and concluded that no violations were occurring and the investigation was closed. E. Special Condition #1 states: "Prior to the issuance of a coastal development permit, the applicant shall execute a deed restriction, in a form and content acceptable to the Executive Director, which shall provided no more than 1,500 square feet of service area for the subject restaurant/brewpub shall be open before 5:OOPM. This document shall run with the land, binding all successors and assigns, and shall be recorded free of prior liens." The property owner recorded the deed restriction that includes the daytime limitation on service area and it is a binding restriction on the NBBC. A violation of Special Condition #1 of Coastal Development Permit (CDP) No. 5 -93 -137 occurs when the NBBC opens the entire dining room (in excess of 1,500 square feet) on weekends prior to 5:00 PM. On Sunday October 8, 2006, Newport Beach Police Detectives visited the NBBC, arriving at about 12:30 PM. They noted that the restaurant was completely open with patrons occupying tables in all areas with no sections being closed off. F. Condition #6 is in conflict with Special Condition #1 and it is inconsistent with the September 27, 1993, action of the City Council to rescind the approval authorizing the use of in -lieu parking spaces in the Cannery Village public parking lot prior to 5:00 PM. Section 5. The City Council finds that pursuant to Condition K of the Use Permit No. 3485, Section 20.89.060.0 and Section 20.96.040 of the Municipal Code, the Administrative Record, the findings stated above above, that sufficient grounds exist to modify and add to the conditions of approval for Use Permit No. 3485. Section 6. The City Council of the City of Newport Beach does hereby approve an amendment and modification of Use Permit No. 3485 as set forth in as Exhibit "A ". Z _I 3 Resolution No. Page 12 of 16 Section 7. This resolution shall take effect immediately upon adoption. Passed and adopted by the City Council of Newport Beach at a regular meeting held on the July 10, 2007 by the following vote to wit: AYES, COUNCIL MEMBE NOES, COUNCIL MEMBERS ABSENT, COUNCIL MEMBERS. MAYOR ATTEST: CITY CLERK 2.Vy Exhibit A Use Permit No. 3485 CONDITIONS: Resolution No. Page 13 of 16 1. The proposed development shall be in substantial conformance with the approved site plan, floor plan and elevations, except as noted below. 2. That a covenant or other suitable, legally binding agreement shall be recorded against the off -site parking lot assuring that all of the requirements of Section 20.63.080 (1) of the Municipal Code, will be met by the current and future property owners. Said covenant or agreement may include provisions for its future termination at such time as the development on the building site is removed or at such time as the floor area devoted to the restaurant/brewpub reverts back to a base FAR use. 3. The applicant shall provide a minimum of one parking space for each 50 square feet of net public area before 5:00 p.m. and one parking space for each 40 square feet of net public area after 5:00 p.m. in conjunction with the restaurant/brewpub. 4. An amended off -site parking agreement approved by the City Council shall be maintained, guaranteeing that a minimum of 41 parking spaces shall be provided on property located on Lots 18 -21 and portions of Lots 17 and 22, Block 230, Lancaster's Addition, for the duration of the existing and proposed uses located on Parcel 1, Parcel Map 92 -40 (Resubdivision No. 527). 5. The property owner shall pay for 29 in -lieu parking spaces in the Cannery Village Municipal Parking Lot on an annual basis for the nighttime operation (after 5:00 p.m.) of the restaurant/brewpub use as agreed upon by the Sales Agreement between the City of Newport Beach and the property owner. 6. The net public area of the restaurant/brewpub, which is devoted to daytime use prior to 5:00 p.m. shall be limited to 1,500 square feet daily. The balance of the net public area shall be physically closed off to the public by a fixed barrier and shall not be used until after 5:00 p.m. daily. 7. The hours of operation for the restaurant/brewpub shall be limited to the hours between 6:00 a.m. and 11:00 p.m. Sunday through Thursday and between 6:00 a.m. and 1:00 a.m. on Friday and Saturday. 8. All employees shall park either in the privately owned off -site parking area or in one of the municipal parking lots in the area. 9. The operation of the brewery and the service of alcoholic beverages shall be ancillary to the food service operation of the restaurant (e.g. the brewery and the service of alcoholic beverages may not be conducted without the concurrent operation of the restaurant during all hours the use is open for business). The quarterly gross sales of alcoholic beverages shall not exceed the gross sales of food during the same period. The operator shall at all times maintain records which 2./5 Resolution No. Page 14 of 16 reflect separately the gross sales of food and the gross sales of alcoholic beverages. Said records shall be kept no less frequently that on a quarterly basis and shall be made available to the Planning Director upon request in conjunction with the Planning Commission's review of this Use Permit for alleged violations of conditions. 10. The principal use authorized by this Use Permit is a restaurant/brewpub. The accessory operation of a bar is permitted provided that the kitchen remains open for the service of meals and that a full menu is provided. This Use Permit shall not be construed as the approval of a bar, cocktail lounge, or other use with the principal purpose of serving alcoholic beverages during hours not corresponding to regular meal service hours nor as the approval of a cabaret, nightclub, or other use with the principal purpose of providing live entertainment and/or dancing. The kitchen of the restaurant/brewpub shall be in operation to serve meals at all times that the business is open. A full meal menu (including the service of those meals ordered) shall be made available. Menus and condiments shall be available at the tables at all times. 11. No outdoor loudspeakers or paging system shall be permitted in conjunction with the proposed location. 12. A washout area for refuse containers shall be provided in such a way as to allow direct drainage into the sewer system and not into the Bay or storm drains, unless otherwise approved by the Building Department. 13. Kitchen exhaust fans shall be designed to control smoke and odor to the satisfaction of the Building Department. 14. All mechanical equipment and trash areas shall be screened from surrounding public streets and alleys and adjoining properties. The existing trash enclosure shall be covered and the doors or gates to the enclosure shall be modified to be self - closing and self - locking for security. 15. Deleted 16. Should prerecorded music be played within the restaurant facility, such music shall be confined to the interior of the building, and all doors and windows shall be kept closed while such music is played. 17. A special events permit is required for any event or promotional activity outside the normal operational characteristics of this restaurant business 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. 18. Should this business be sold or otherwise come under different ownership, any future owners or assignees shall be notified of the conditions of this approval by either the current business owner, property owner or the leasing company. 2.lCp Resolution No. Page 15 of 16 19. The parking lot entrance to the building shall not be used as an entrance or exit (except in the case of an emergency) after 9:OOPM daily. 20. The operator shall discourage loitering on site at all times the establishment is open or employees or owners are present. 21. The operator shall conspicuously post and maintain signs indicating to patrons to be courteous to residential neighbors while outside the establishment. 22. The applicant shall prepare a detailed security operations and property maintenance plan within 45 days of approval of this amendment to the Use Permit. The plan shall be subject to the review and approval of the Police Department and Planning Department. The plan shall specifically outline methods and personnel necessary to control patron activity on and abutting the project site to minimize or avoid land use conflicts. When security services are required pursuant to the plan, security shall be provided whenever necessary and up to a minimum of 30 minutes after the posted closing time. Additionally, a security guard shall be stationed outside the establishment to discourage and report objectionable behavior of patrons after 10:OOPM. The property maintenance portion of the plan shall address activities including, and not limited to, trash pickup, recycling disposal and pickup, grease trap cleaning, cooking oil recycling, brewery servicing, deliveries, cleaning or general building maintenance. 23. Deliveries and exterior property maintenance activities shall not be conducted between 8PM and 8AM daily. 24. The use shall maintain a Type 23 or a Type 75 license to sell alcoholic beverages from the State Department of Alcoholic Beverage Control. No other license type shall be permitted without review and approval by the Planning Commission. 25. Live entertainment and dancing shall be prohibited without an amendment to this Use Permit and a Live Entertainment Permit and /or a Cafe Dance permit issued by the City Manager's Office. 26. This Use Permit shall be reviewed by the Planning Commission at a noticed public hearing on or before October 30, 2007. The Planning Director may schedule additional reviews of this permit if there is a determination that the use directly causes or is contributing to conditions found to be detrimental to the community (this provision shall not be construed to diminish the City's ability to enforce this Use Permit or any aspect of the Municipal Code). STANDARD CITY REQUIREMENTS: A. The project is subject to all applicable City ordinances, policies, and standards, unless specifically waived or modified by the conditions of approval. B. Signs and displays shall not obstruct the sales counter, cash register, seller and customer from view from the exterior. 2.17 Resolution No. Page 16 of 16 C. Loitering, open container, and other signs specified by the Alcoholic Beverage Control Act shall be posted as required by the ABC. D. The applicant shall take reasonable steps to discourage and correct objectionable conditions that constitute a nuisance in parking areas, sidewalks, alleys and areas surrounding the alcoholic beverage outlet and adjacent properties must be taken during business hours if directly related to the patrons of the subject alcoholic beverage outlet. E. The exterior of the alcoholic beverage outlet 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. F. All owners, managers and employees serving and /or selling alcoholic beverages shall undergo and successfully complete a certified training program in responsible methods and skills for serving and selling alcoholic beverages. To qualify to meet the requirements of this section a 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 operator shall provide proof of completion for all owners, managers and employees within 30 days of the approval of this amendment and new employees shall successfully complete the training within 30 days of initially starting work. G. The project shall comply with the provisions of Chapter 14.30 of the Newport Beach Municipal Code for commercial kitchen grease disposal. H. All signs shall conform to the provisions of Chapter 20.67 of the Municipal Code. This Use Permit for an alcoholic beverage outlet granted in accordance with the terms of this chapter shall expire within 12 months from the date of approval unless a license has been issued or transferred by the California State Department of Alcoholic Beverage Control prior to the expiration date. J. Coastal Commission approval shall be obtained prior to issuance of any building permits. K. The Planning Commission may add to or modify conditions of approval to this Use Permit upon a determination that this Use Permit causes injury, or is detrimental to the health, safety, peace, morals, comfort, or general welfare of the community. Z.IFf Attachment No. 3 Staff report and minutes from March 27, 2007 City Council hearing 3�I f BLANK � 3.Z CITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item 15 March 27. 2007 TO: Honorable Mayor and Members of the City Council FROM: James Campbell, Senior Planner (949) 644 -3210, Icampbell(d)city.newport- beach.ca.us SUBJECT: Newport Beach Brewing Company, Review of Use Permit No. 3485 2920 Newport Boulevard (PA2006 -177) The City began the review of the Newport Beach Brewing Company's use permit last year due to complaints received from "The Cannery Village Concerned," a group of residents, business owners and property owners. They alleged that the Brewing Company was violating the conditions of their use permit. A complete discussion of the issues and complaints are contained in the attached Planning Commission reports. The Planning Commission, after three meetings, found the Brewing Company to be operating contrary to the findings for approval of the use permit and modified the conditions of approval to address the concerns of the neighborhood. Operational and physical improvements were required and the Brewing Company agreed to the changes in the conditions of approval. An appeal was filed by The Cannery Village Concerned contending that the Commission "failed to take responsibility for the enforcement of the California Coastal Commission permit, and make the restaurant conform to their use permit as such and not as a bar." RECOMMENDATION 1) Hold a public hearing, deny the appeal and uphold the decision of the Planning Commission to modify Use Permit No. 3485 by adopting the attached draft resolution (Exhibit No. 1). 2) Set aside the potential modification of Condition #6 to be consistent with CCC Special Condition #1 be set aside until a parking study is completed. BACKGROUND • In 1993, Use Permit No. 3485 was granted to operate a "restauranUbrewpub" with a beer and wine license. • In 1999, an amendment of the use permit was granted allowing distilled spirits at the establishment. • In January 2005, the City received complaints of alleged violations of the conditions and objectionable late night behavior by patrons. Newport Beach Brewing Company March 27, 2007 Page 2 of 6 • On May 4, 2006, the Planning Commission discussed the operation, took input from the neighborhood and directed an official review of the use permit. • On August 17, 2006, the Planning Commission conducted a noticed public hearing where additional testimony was heard and a future hearing was set to consider the possible revocation of the use permit. • On January 4, 2007, the Planning Commission held a second, noticed public hearing where the Commission acted to amend the conditions of approval. • On January 12, 2007, an appeal was filed by The Cannery Village Concerned. DISCUSSION The appeal is attached as Exhibit No. 8 and two letters were submitted on March 5, 2007 by Bruce Low, who resides at 411 29th Street adjacent to the Brewing Company's parking lot, in support of the appeal (Exhibits 9 & 10). The following major issues were considered by the Planning Commission, are referenced in the appeal and letters from Mr. Low, and necessitate attention by the City Council: 1) Is the Newport Beach Brewing Company operating to the detriment of the neighborhood and do the revised conditions of approval address nuisances? Neighbors contend that the Newport Beach Brewing Company is violating its use permit and that the operators are not sufficiently controlling patron behavior, which creates nuisances during the late evening and early morning hours. Alleged violations include operating a bar rather than a restaurant, opening the entire dining area on weekends before 5PM, trash in the parking lot and unruly patron behavior outside the establishment. The primary complaint from neighbors is that patrons create noise, cause property damage, urinate, defecate, and conduct sexual activities, etc., during the late evening and early morning hours, to the detriment of the neighborhood. The Planning Commission considered all of the issues and concluded that violations of the use permit did occur in the past. However, the Commission found that violations were abated prior to Commission action in January of 2007 because the Brewing Company made the following physical and operational changes to alleviate neighborhood complaints. • Construction of a trash enclosure cover (building permit under review). • Employee training on responsible alcohol sales has been completed. • Relocated the entrance from the parking lot side of the building to the Newport Boulevard entrance when a line of patrons forms to enter the establishment. • Discontinued the removal of condiments and menus from the tables. • Discontinued the late night bar menu while keeping the kitchen open at all times with a full menu. • Installed signs requesting that patrons be respectful of the neighborhood. • Instituted regular security sweeps of the parking lot. • Maintain a security presence at least % hour after closing. • Instituted a recycling collection program that minimizes noise generation. • Scheduling maintenance activities outside of sensitive hours. 2 Newport Beach Brewing Company March 27, 2007 Page 3 of 6 Relocation of the entrance from the parking lot side of the building to the Newport Boulevard side when a line forms was one of the most significant changes made. The Planning Commission incorporated this change as part of the modified conditions of approval (Condition #19). This measure has been beneficial in alleviating noise from patrons waiting to enter the establishment. The appellant suggests that the relocation of the entrance occur at a specific time rather than when a line forms so customers become conditioned to use the street side entrance in the evening. The appellant would prefer that patrons be prohibited from using the building doors leading to the parking lot as an exit in the late evening or early morning, as patrons tend to disturb residents. Setting a specific time for the entrance shift might have a beneficial effect with regular customers avoiding the parking lot after the specified time. Prohibiting the use of the building doors leading to and from the parking lot as a regular exit might have a beneficial effect with patrons who do not need to retrieve parked vehicles from the parking lot. Other patrons would need to walk around the building to get to their vehicles. The only guaranteed benefit would be the elimination of interior noise that escapes when the doors are opened; however, this has not been a complaint in the past. In addition to the changes already implemented by the Brewing Company, the preparation of a detailed security operations plan and its implementation was required by the Planning Commission in their action in January 2007 (Condition #22). The plan is required to be prepared within 45 days of the approval of the amendment and it will be subject to the review and approval by the Police Department and Planning Director. The plan has not been submitted to date, pending the outcome of the appeal. At the moment, Brewing Company staff conducts a sweep of the exterior of the site and parking lot approximately every 15 minutes. Security personnel also remain '/2 hour past closing. The appellant would like to see a security guard posted in the parking lot when needed to act as a continuous deterrent. This change can be mandated through the review and approval of the security operations plan or a specific condition of approval. A posted security guard could prove more effective than periodic sweeps of the grounds. The Planning Commission modified the conditions of approval to incorporate these physical and operational changes and the Brewing Company agreed to the changes in conditions. The Commission considered but did not reduce the hours of operation because they believed that the other changes made would alleviate complaints. The Planning Commission scheduled a review hearing before the end of October 2007 (Condition #27) to evaluate the effectiveness of the modified conditions and the Brewing Company's ability to control patrons. If the City Council believes that the changes in the conditions made by the Planning Commission are not sufficient to eliminate detrimental conditions in the neighborhood, the closing hour may be changed. An 11PM closing hour would eliminate late -night or early morning problems attributable to the operation. The neighborhood benefit achieved through a reduction in the operating hours would need to be balanced against the rights of the Brewing Company to continue to operate as they have for years and the potential loss to business. The Brewing Company would lose revenue and they have indicated to staff that the reduction in hours could force them out of business. It should be noted that reducing the hours of operation will not alleviate all late -night problems experienced by residents. Other restaurants and bars in the immediate area have later hours of operation and the Brewing Company's parking lot and the adjacent municipal parking lot are used by patrons of those establishments. Newport Beach Brewing Company March 27, 2007 Page 4 of 6 2) Is the Brewing Company operating a bar contrary to the original use permit? The City permitted a " restaurant/brewpub" with a closing hour of 2AM on Friday and Saturday, 11 PM on other days. In 1999, when the use permit was amended to allow the sale and on -site consumption of distilled spirits, the closing hour on Friday and Saturday was changed to 1AM with no change to the 11 PM closing hour on other days. Food service was stressed in the original approval of the use permit in 1993 and with the approval of the amendment in 1999. The brewing, sales and service of alcohol was characterized by the applicant as accessory to food service; a convenience or amenity as a way to complement food sales. Testimony at the Planning Commission hearings indicated that the use takes on a "bar -like" character especially on Thursday, Friday and Saturday nights. A limited late night menu had been offered rather than the full menu, a line of patrons attempting to enter the establishment forms in the parking lot, security personnel are employed, more alcohol is served than food based on sales, identification is checked and people under 21 are routinely refused entry. The use permit issued in 1993 included a condition that "The operation of the brewery and the service of alcoholic beverages shall be ancillary to the primary food service operation of the restaurant." In 1999, the City added a condition that "The approval of this use permit is for a restaurant/brewpub and shall not be construed as the approval of a bar, cocktail lounge, or other use serving alcoholic beverages during hours not corresponding to regular meal service hours (food products sold or served incidentally to the sale or service of alcoholic beverages shall not be deemed as constituting regular meal service) nor as the approval of a cabaret, nightclub, or other use with the principal purpose of providing live entertainment and/or dancing." These two conditions were intended to maintain the primary use and character of a restaurant and brewpub. The appellant contends that the Brewing Company violates these conditions when alcohol sales are higher than food sales. The Commission considered this issue and concluded that the use was operating as a restaurant and brewpub when the practice of having a limited late -night food menu was eliminated. The Commission modified the conditions to require the kitchen to remain open with a full menu at all times. Additionally, the Commission required food sales to be more than alcohol sales based upon quarterly gross sales. If the City Council believes that additional measures are needed for operation of the Newport Beach Brewing Company consistent with the approval of a restaurant/brewpub and the character directed by the conditions of the use permit, a change in the closing hour may also be considered to resolve this issue. 3) Parking before 5PM on Saturday and Sunday This issue relates to differences between Condition #6 of Use Permit No. 3485 and Special Condition #1 of Coastal Development Permit No. 5 -93 -137. The peace and quiet of the neighborhood during the late evening or early morning hours is not directly tied to this issue. � gyp, Newport Beach Brewing Company March 27, 2007 Page 5 of 6 The appellant believes that Condition #6 is inaccurate and inconsistent with Special Condition #1 and should be modified to make it consistent. The Brewing Company presently opens the entire dining room on weekends prior to 5PM consistent with Condition #6 and in violation of Special Condition #1. The Planning Commission considered this issue as summarized below and made no change to Condition #6. Condition #6 limits the amount of net public area (1,500 sq. ft.) that can be utilized prior to 5PM, Monday through Friday. This condition was imposed by the City in mid -1993 as the site does not provide all of the code - required parking and the restriction would avoid negatively impacting public parking supply in the adjacent municipal lot before 5PM. After local approval of the use permit, the Brewing Company sought the approval of a Coastal Development Permit (CDP) from the California Coastal Commission (CCC) for the project. Special Condition #1 of CDP 5 -93 -137 has a similar limitation of the net public area before 5PM, but it applies 7 days a week, not just weekdays. The CCC also requested assurance that the City would enforce the net public area limitation. The CCC required the City to modify its prior approval to be consistent with the conditions imposed through the approval of the CDP. In September 1993, the City Council approved changes to the conditions of approval to make them consistent with the CDP; however, the record reflects that the City Council did not change Condition #6 to apply 7 days a week. All other changes necessary to comply with the action of the CCC were made. In a letter to the California Coastal Commission shortly after the City Council hearing, James Hewicker, the Planning Director at that time, indicated that the City would enforce Condition #6 that is applicable only Monday through Friday. California Coastal Commission staff was contacted about the discrepancy between the conditions and they indicate that Special Condition #1 is applicable and applies 7 days a week. Additionally, CCC staff indicated that the Brewing Company could request a modification of the Special Condition #1 from the CCC provided that it would not negatively impact public parking. The appellant indicates that there is a parking problem in the area and the Brewing Company contributes to it by opening the entire dining area in excess of 1,500 square feet contrary to Special Condition #1. The Planning Commission did not amend Condition #6 to be consistent with Special Condition #1 of the CDP based upon the Planning Director's prior correspondence and , as well as a lack of compelling evidence to indicate that there is a parking problem on Saturday and Sunday before 5PM. The City Council may conclude that an error was made and can amend Condition #6 to be consistent with Special Condition #1. However, the magnitude of the parking issue before 5PM on Saturday and Sunday has not been documented. Staff recommends the preparation of a parking survey to determine the magnitude of the parking issue before changing Condition #6. Such a survey would need to be conducted during the summer months. The survey would be the basis for a request to the CCC to change, or eliminate, the condition if no public parking shortage is identified. - 3.7 Newport Beach Brewing Company March 27, 2007 Page 6 of 6 SUMMARY The appeal and the letters submitted by Mr. Low do not present any new information that was not considered by the Planning Commission. The City Council needs to determine whether or not the revised conditions adopted by the Planning Commission sufficiently address neighborhood complaints. Secondly, the Council will need to determine whether or not current operating character of the Newport Beach Brewing Company is consistent with the original intent of to allow a restauranUbrewpub. ALTERNATIVES 1) Overturn the decision of the Planning Commission and set a hearing to consider revocation of the use permit at a future date. 2) Further amend the conditions of approval by limiting the hours of operation or requiring other changes to the conditions of approval. PUBLIC NOTICE The Newport Beach Brewing Company and the appellant have been notified of this hearing. A hearing notice indicating the subject, time, place and location of this hearing was duly provided in accordance with the Municipal Code. Notice was published in the Daily Pilot, mailed to property owners within 300 feet of the property (excluding abutting roads) and the site was posted a minimum of 10 days in advance of this hearing. Prepared by: Submitted by: ' �' k) r.,'.' " mes Camp ell, Senio Planner David Lepo, 44Director 1. ft Council resolution affirming the action of the Planning Commission 2. Pla Council Commission staff report dated January 4, 2007 (with attachments noted) 3. Minute om January 4, 2007 4. Planning bW mission staff report dated August 17, 2006 (with attachments noted) 5. Minutes from gust 17, 2006 6. Additional mate Ns submitted to the Planning Commission for consideration 7. Planning Commiss Resolution No. 1709 8. Appeal dated January 2007 9. Letter from Bruce Low da February 28, 2007 10. Letter from Bruce Low date arch 2, 2007 _3 .$ City of Newport Beach City Council Minutes March 27, 2007 OF ENCROACHMENT PERMIT NO. N2007 -0149 1100- 20071. Conditionally approve Newport Beach Conference and Visitors Bureau request for the installation of 80 banners on 80 streetlight poles from March 29, 2007 to April 29, 2007 for the John Wayne Centennial Celebration with installation along Jamboree Road, MacArthur Boulevard, Newport Boulevard, and East Coast Highway. Mott y. Mayor Pro_.Tem Selich to approve the Consent Calendar, noting the abstention Council Member Webb on Item #8, and the correction to Item #7. The motion Carrie the following roll call vote: Ayes: Council Member Council Member Curry, Mayor Pro Tem. Selich, Mayor Rosansky, Council Me r Webb, Council Member Daigle, Council Member Gardner XIII. )UV. PUBLIC HEARINGS - None 14. IN -LIEU PARK DEDICATION FEE ADJUS NT - APPRAISAL OF EASTBLUFF AND BOB HENRY PARK (contd. from 2/27/07 & /07)1100- 80071. City Manager Bludau explained that originally the BIA a d for a 30-day continuation therefore he is requesting that this item be continued until April 2007. Motion Council Member } -ghb. to continue the item until April 1 7. The motion carried by the following roll call vote: Ayes: Council Member Henn, Council Member Curry, Mayor Pro Tem Selich, r Rosansky, Council Member Webb, Council Member Daigle, Council Member Gardner 15. NEWPORT BEACH BREWING COMPANY, REVIEW OF USE PERMIT NO. 3485 - 2920 NEWPORT BOULEVARD (PA2006- 177)1100- 20071. Senior Planner Campbell reported that as a result of complaints the Planning Commission reviewed this permit three times and on January 4, 2007 acted to place additional conditions on the permit. Their decision was appealed by representatives of The Cannery Village Concerned. Staff recommends that the City Council deny the appeal and uphold the Planning Commission's decision. The applicant has moved forward to mitigate the conditions and the Planning Commission has scheduled a review for October 2007. Senior Planner Campbell addressed Council questions and concerns. Mayor Rosansky opened the public hearing. Bruce Low, resident and representative of The Cannery Village Concerned, spoke about Conditions #9 and #10. He presented Council with a copy of the September 27, 1993 City Council minutes that indicated to him that the daytime net public area of 1500 square feet was intended to apply seven days a week until 5:00 p.m. He was concerned about vehicles traveling at a high rate of speed, abuse of the parking area, abuse of adjacent personal properties, and felt the applicant was not complying with the intended use (Condition #10). Kevin Weeda, a resident and business owner operating a business on 30th Street, said the group of concerned residents did not want to drive away the business, merely have the applicant comply with the CUP. Most problems occur late at night and he believed the Volume 58 - Page 94 City of Newport Beach City Council Minutes March 27, 2007 business should be limited to an 11:00 p.m. closing Jerry Kolbly, co- owner, Newport Beach Brewing Company, spoke about his establishment and the fact that it had maintained the same social atmosphere for the past 12 years. He has attempted to work with adjacent neighbors and staff to resolve the issues. There is a security guard stationed at the rear door and patrons enter and exit via Newport Boulevard only on Friday and Saturday nights after 10:00 p.m. Steven Miles, attorney for Newport Beach Brewing Company, found it disingenuous that it was stated that the Brewing Company was not open to suggestions and working with the City and adjacent residents to solve problems. With respect to concerns regarding noise from the parking area, the police report indicates that the only noise came from patrons talking in the patio area and that passing traffic drowned out the noise. In addition to the main entry, the only door that was open to patrons was the patio door. He believed that the Brewing Company would provide permanent security for the parking lot from 10:00 p.m. until 30 minutes after closing if the City agreed to extend the hours of operation 30 minutes to one hour on weeknights. In response to Council Member Daigle, City Attorney Clauson said that the regulations were adopted in 1988 when she was advisor to the Planning Commission. The Planning Commission based its decision to allow the sale of liquor in 1999 based upon representations by the applicant that this was a restaurant and the intent was for the establishment to continue serving food throughout the evening hours. There was never a representation or understanding by the Commission that this would turn into a bar after 11:00 p.m. Mike Madlock, founder, Newport Beach Brewing Company, felt that common sense should prevail and the current issues were a result of mixed uses in the area. The Brewing Company has made many concessions and runs a business -like establishment. For twelve years the company has operated without one code violation. Billy Steed, Cannery Loft owner, adjacent to the Brewery, said he has observed all types . of nuisances in the Brewery parking lot. The Brewery has offered no solution and ignores complaints. Stephanie Roselli, Cannery Village resident, has made several complaints about the Brewing Company and the parking lot being noisy. John Paul said he has lived and worked in the area for three plus years and the residents have recently come together to address issues that have not been addressed by the applicant and the City. He said it did not make sense to him that the restaurant would not be forced to comply with their CUP. George Schroeder, Cannery Village said this neighborhood has been zoned mixed use for 20 to 30 years and the problems with the Brewery are not new. Tony Shepherdson said he lives one block away from the Brewing Company and more than just the units in the Brewery are affected. He has lived on the street for 23 years and the problem has grown over the years. For the majority of the nights there is virtually no Parking available due to all of the restaurants in the area. The problems grow out of allowing alcohol and he felt that the problems could be resolved by limiting the hours of operation_ Volume 58 - Page 95 3 <� D City of Newport Beach City Council Minutes March 27, 2007 Joe Reese said he has been dealing with this over a year. In 1993 and 1999 the intent was clear that this establishment was to be a restaurant. He was personally carded and denied food after 10:00 p.m. and he has observed individuals standing around drinking after 10:00 p.m. In reviewing this project the Planning Commission concluded that the establishment was operating as a bar. The Planning Commission wanted assurance that the Brewing Company would operate as a restaurant and there would be no "carding' at the door. There were 32 arrests in the area on St. Patrick's Day and every night residents are subjected to fighting and other obscene behavior. He asked the City to enforce the CUP. Drew Wetherhault said residents on 29h and Wh streets have constant problems with the establishment nights and weekend. BJ's brewery is clearly a restaurant. After 10:00 P.M. Newport Beach Brewing Company is clearly a bar and there is clearly a _problem with consumption of alcohol. He asked that the City revoke the permit. Kristen Andros Low said that the owner stated the restaurant operates until 11:00 p.m. and thereafter it operates as a bar as evidenced by a queuing line and carding. Bruce Low said there were many people in the neighborhood that had issues with this establishment and on behalf of the residents he asked that the City restore the neighborhood to a reasonable, fair and even keel. Mr. Miles entered documents into the record and spoke to Mr. Weeda's "threat" to take this issue to the Coastal Commission. He stated that Mr. Weeda has a financial interest in acquiring the parcel on which Newport Beach Brewing Company resides. Mr. Miles responded to Mayor Pro Tem Selich that Condition #26 imposed by the Planning Commission was acceptable to the Brewing Company. When asked by Mayor Pro Tem Selich which option would be acceptable, returning to beer only sales or cutting back the hours of operation to 11:00 p.m., Mr. Miles stated that he believed neither option would. be acceptable. Mayor Rosansky closed the public hearing. Council discussion and debate ensued. Motion by Council Member Henn -to uphold the conditions of the Planning Commission with the following amendments: 1) amend Condition #19 to prohibit the use of the parking lot entrance by no later than 9:00 p.m.; 2) amend Condition #22 that a full time security person be in the parking lot every night at 10:00 p.m. until one-half hour after closing; 3) that Condition #6 be made clear that it applies seven days a week; and 4) in order to help the Brewing Company to get back to its original and contemplated mission, that they may not serve hard liquor after 10:00 p.m. Council Member Gardner asked if Council Member Henn would amend Item 4 to indicate the restaurant will close at 11:00 p.m. on Friday and Saturday. Council Member Henn asked for input from other Council Members. Council Member Daigle said it was clear to her that the restaurant element goes away between 11:00 p.m. and 1:00 a.m. and supported Council Member Gardner's amendment. Council Member Curry asked that "carding"' not be used to differentiate between a restaurant and a bar operation. Volume 58 - Page 96 City of Newport Beach City Council Minutes March 27, 2007 Mayor Rosansky felt residents could more appropriately address Condition #6 with the Coastal Commission. He would favor eliminating hard liquor sales past 11:00 p.m. on Friday and Saturday. Council Member Henn felt it was clear that an unintentional error was made because the City mandates should be consistent with the Coastal Commission mandates. Mayor Pro Tem Selich supported elimination of Condition 6. Council Member Webb felt it would be prudent to follow the recommendation to determine whether there is a parking problem on Saturday and Sunday. Council Member Daigle said staff felt a parking study should be done. Mayor Pro Tem Selich supported allowing the Brewing Company to sell liquor until 11:00 p.m. Council Member Henn preferred to keep Condition 6. Amended motion by Council Member Henn to change the condition to allow hard liquor sales until 11:00 p.m. on Friday and Saturday. Substitute -motion by Mayor Pro_Tem Selich to deny the appeal and uphold the decision of the Planning Commission to modify Use Permit No. 3486, with modifications to the conditions as noted: no change to the operating hours; on Friday and Saturday hard liquor sales to cease at 11:00 p.m.; no change to Condition #6; eliminated Condition #26; modified Condition #22 to require full time security in the parking lot beginning at 10 p.m. until 30 minutes after closing; Condition #19 modified to prohibit entrance through the back door after 9 p.m.; and operator to have discretion on carding requirements. The substitute motion carried by the following roll call vote: Ayes: Council Member Curry, Mayor Pro Tem Selich, Mayor Rosansky, Council Member Webb Noes: Council Member Henn, Council Member Daigle, Council Member Gardner Xw� PUBLM- COMMENTS Uhlmann said the interest in the saturation of recovery facilities has grown and interested reaiden West Newport Beach will send a newsletter and emails inviting residents to attend the April 10� City cil meeting to show support for a moratorium. Jim Miller, West Newpo ach Association and member of the IROC Committee presented a map showing an over concentration ab facilities and felt that SB1000 would make matters worse. XVI. ORAL RF&ORTS.F.ROM CITY COUA, N C MI1 ITTEE ACTIVITIES Mayor Pro Tem Selich announced that the Genera Implementation Committee would meet on March 28u' at 3:30 p.m. in Council Chambers. XVII. PLANNLNG CO.M...MISSION,AGEN_.DARND ORAL STATUS RE T 16. PLANNING COMMISSION AGENDA FOR MARCH 22, 2007 110 Volume 68 - Page 97 Attachment No. 4 Staff report and minutes from August 17, 2006 Planning Commission hearing y•I BLANK � u. 2 CITY OF NEWPORT BEACH PLANNING COMMISSION STAFF REPORT Agenda Item 4 August 17, 2006 TO: PLANNING COMMISSION FROM: James Campbell, Senior Planner (949) 644 -3210, Icampbell(abcitv.newport- beach.ca.us SUBJECT: Newport Beach Brewing Company Use Permit No. 3685 2920 Newport Boulevard INTRODUCTION On May 4, 2006, the Planning Commission discussed the operation of the Newport Beach Brewing Company in response to concerns raised by nearby residents, property owners and local business persons. Staff prepared a report providing a limited background of the use and a discussion of the issues raised (Exhibit No. 1). At the conclusion of the discussion, the Commission found that there was sufficient information to review and possibly modify the Brewing Company's Use Permit. PUBLIC NOTICE The Newport Beach Brewing Company has been notified of this hearing. A hearing notice indicating the review and potential modification of Use Permit No. 3484 was published in the Daily Pilot, mailed to property owners within 300 feet of the property (excluding roads and waterways) and posted at the site a minimum of 10 days in advance of this hearing consistent with the Municipal Code. Additionally, the item appeared upon the agenda for this meeting, which was posted at City Hall and on the city website. RECOMMENDATION Staff recommends that the Planning Commission take public testimony and direct staff to prepare revised conditions of approval for potential adoption at the next meeting. y.3 Newport Beach Brewing Company August 17, 2006 Page 2 BACKGROUND The current use was established in 1993 with the approval of Use Permit No. 3485. The staff report and minutes are attached (Exhibit No. 2). The establishment began operating in 1994. The Coastal Commission approved a modified project subject to conditions and the City Council later modified the conditions to conform to the Coastal Commission special conditions. Coastal Development Permit 5 -93 -137 is attached with the Coastal Commission's staff report and deed restriction (Exhibit No. 3). In September 1999, the City Council approved an amendment to the Use Permit to allow full alcoholic beverage service while amending and adding conditions of approval. The staff reports and minutes from the 1999 amendment are attached (Exhibit No. 4). When the use was established, the neighborhood was different, as fewer residences were located nearby. In the last several years, new mixed -use projects have been constructed and occupied, and residential uses are now located in much closer proximity to the use. Since the last meeting, staff has met with the Brewing Company and concerned residents to identify the problems and potential solutions. The operator has had their attorney prepare a letter on their behalf indicating their position on the primary issues and conditions of approval. Additionally, the letter outlines several steps the operator is willing to consider (Exhibit No. 5). DISCUSSION The Cannery Village area is evolving and the residential component of this mixed use village is emerging. This transition is a result of specific General Plan and Zoning changes adopted in the late 1980's and early 1990's. While some might argue that the Brewing Company was there first and the new residents should have known before they bought into the neighborhood, it is also reasonable for a business to recognize the nature of the neighborhood in which it is located and to adapt its operation to ensure compatibility with the neighborhood. At the time the Use Permit was approved in 1993, the City applied a standard requirement that should the operation of the Brewery be found detrimental to the community, the Planning Commission (or City Council on appeal) can add or modify conditions of approval. The unstated purpose would be to address objectionable aspects of the operation to alleviate problems. y. y Newport Beach Brewing Company August 17, 2006 Page 3 Complaints against the operation fall into the following categories: • Operation of a bar rather than a restaurant • Violations of conditions of approval • Objectionable behavior of patrons during late evening and early morning hours both on and off -site • Noise from property maintenance activities Those aggrieved believe that the use constitutes a nuisance especially after approximately 10:30PM when the use operates more like a bar than a restaurant. There seems little objection to the use prior to the end of traditional meal service. The Brewing Company is required to close at 11:OOPM Sunday through Thursday and 1:OOAM on Friday and Saturday. What is a restaurant(brewpub? The City authorized a "restaurant/brewpub" and prohibited a bar, cocktail lounge, nightclub, live entertainment venue or any other use that serves alcoholic beverages during hours not corresponding to regular meal service (Condition No. 10). Condition No. 10 reads: "The approval of this use permit is for a restaurantlbrewpub and shall not construed as the approval of a bar, cocktail lounge, or other use serving alcoholic beverages during hours not corresponding to regular meal service hours (food products sold or served incidentally to the sale or service of alcoholic beverages shall not be deemed as constituting regular meal service) nor as the approval of a cabaret, nightclub, or other use with the principal purpose of providing live entertainment and/or dancing." It is clear that a restaurant is authorized. In staffs opinion, a brewpub is simply a restaurant or bar where the beer is made on the premises and sold. The definition of a brewpub might not include the term bar as differing definitions are found using different dictionaries. Staff believes that the City authorized both a restaurant and a bar and it can be reasoned that the use cannot be any one of the prohibited uses listed as a primary use as the restaurant is the primary use. Does the restaurant have to be open at the same time? Traditionally, the City requires the kitchen to be open at all times for meal service. In this case, no requirement was made other than the reference contained within Condition No. 10. It can also be argued that the brewing of beer is also necessary, although this is not at issue unless the brewing of beer contributes to any nuisance. The kitchen is reported to be open at all times; however, a limited menu of appetizers is available in the late evening. The City did receive a report from a resident indicating that they were told that the kitchen was closed at approximately 11:00 PM on August 5t" (Exhibit No. 6). 9.5 Newport Beach Brewing Company August 17, 2006 Page 4 The use operates predominately like a bar after approximately 10:30PM. It is staff's opinion, the use, as a whole, is primarily a restaurant as it operates as a restaurant during the majority of its operating hours. Some believe that the City permitted a restaurant based upon the description of the use put forth during the use's original hearings in 1993. Although the restaurant use was marketed as the primary activity, the applicant described the proposed use in 1993 an "eating and drinking establishment." The late evening and early morning hours authorized reflect an understanding by decision makers that the use could take on a bar -like character since it is well known that traditional meal service after approximately 11PM is rare. This recognition is also supported by calling the use a brewpub, which is a reference to a drinking establishment unless one believes that a brewpub can not be a bar. Staff believes that the use is prohibited from operating as a bar (or any use described as prohibited within Condition No. 10) without the restaurant being considered the primary use. The real question in staffs mind is whether or not the restaurant/brewpub is creating a nuisance that requires specific action. That may be the case; however, if the Planning Commission believes that the use cannot take on a bar -like character in the late evening, eliminating that aspect of the use would be necessary through Commission action to modify the conditions and or findings that would describe the use. Given that the majority of the complaints relate to late evening hours, the simplest solution would be to curtail the hours of operation. The operator's attorney has offered clarification of Condition No. 10 by suggesting the following language be added: "regular meal service hours means the meal service hours regularly established by the restaurant/brewpub. The service of alcoholic beverages during regular operational hours of the restaurant/brewpub that do not include meal service is prohibited." Staff is not comfortable with this language without understanding what meal service hours the operator has established and whether or not it would change in the future. If the term regular meal service requires clarification, staff suggests that the Commission establish the meaning of the term; however, if specific hours are identified, the second sentence appears to prohibit alcohol service outside those hours. Is alcohol "ancillary "? (Condition No, 9) Condition No. 9 states that, "the operation of the brewery and the service of alcoholic beverages shall be ancillary to the primary food service operation of the restaurant." The Zoning Code defines an ancillary use as "a use that is clearly incidental to and customarily found in connection with the principal use; is subordinate to and serves the principal use; is subordinate in area, extent, or purpose to the principal use served; contributes to the comfort convenience, or necessity of the operation, employees, or customers of the principal use served..." Newport Beach Brewing Company August 17, 2006 Page 5 Some believe that the fact that the use operates more in the character of a bar in the late evening with little food sales, the use is in violation of this condition. Furthermore, the General Manager admitted at the last meeting that the sale of alcohol is roughly 90% after 11 PM and that it is roughly 50% during the day. Is alcohol ancillary to food service? Although one can conclude that alcohol may not be ancillary to food service, an alternative interpretation exists in that the operation of the use cannot occur without the restaurant. If the facts show that alcohol is not clearly incidential to food service, the Commission should amend the condition to achieve a desired outcome. The applicant has suggested a modification to the condition "The service of alcoholic beverages shall be ancillary to the primary restaurant/brewpub service operation of the restaurant. Accordingly, alcoholic beverage service is not permitted independent of restaurant food or brewpub services." Although this language could be applied, it changes the nature of the condition. First, it excludes the operation of the brewery itself (retail sales of beer for off - site consumption) and it changes the regulatory relationship between alcohol service and food service. The new relationship proposed would be limited to alcohol sales and the use entirely as opposed to food service specifically. The suggested change also modifies the nature of the use to indicate that alcoholic beverage service cannot be an independent use. As noted previously, in similar cases, the City has required the kitchen to remain open at all times. Simply opening the kitchen would not necessarily change the nature of the use after approximately 10:30PM as most patrons appear to be more interested in alcohol service. If it is determined that alcohol service should be curbed to be clearly incidential to food service at all times given the definition of ancillary, staff would suggest that the hours be limited to midnight or 11 PM as alcohol service prior to these hours can more easily be viewed as incidential. Simply requiring the sale of alcohol to be below a specific percentage of sales may or may not achieve a desired outcome and it presents enforcement issues. If it is believed that the use is being operated as intended, the condition should be amended to facilitate the use while reducing conflicting interpretations or application. How much area is permitted before 5PM? (Condition No. 6) Condition No. 6 requires a reduction of net public area prior to 5PM weekdays. Staff has monitored this condition periodically and has never observed a violation as the portion of the dining area designated to be closed prior to 5PM has been closed when observed. The condition does not apply to weekends and the full dining room is open on weekends. The Coastal Commission required the same reduction in net public area although their condition does not indicate when the condition is applicable. Coastal Commission staff has indicated that the limitation applies daily and the issuance of the Coastal Development Permit was predicated on the City's commitment to enforce the special condition. In a letter date stamped "received October 13, 1993 by the Coastal y.7 lil Newport Beach Brewing Company August 17, 2006 Page 6 Commission," the City agreed to enforce the City's limitation that applied Monday through Friday (Exhibit No. 7). Coastal Commission staff must have accepted this commitment as there is no evidence to the contrary and they issued the Coastal Development Permit shortly in early 1994. Is there a lack of control of patrons in the parking lot? Standard Requirement D requires the applicant to take "reasonable steps to discourage and correct objectionable conditions that constitute a nuisance" either occurring on site or in the areas surrounding the establishment that are directly related to patrons of the establishment. Many objectionable conditions have been reported, from patron behavior to noise. Primarily on Friday and Saturday evenings after approximately 10:30PM, the establishment is close to capacity and there is a queue of several dozen patrons waiting to get in. These people congregate in the parking lot and they can be boisterous. Although the applicant indicates that restrooms are made available upon request, people have been reported using the alley and adjacent properties as a toilet. When the establishment closes, patrons have a tendency to loiter and again they can be boisterous as they leave. In some cases, patrons wander to another night spot that has later hours of operation and these people return later in the early morning hours to retrieve vehicles and can be more of a nuisance. The operator has expressed a willingness to tow cars from their lot after they close. The effectiveness of this proposal is unknown and it might simply disperse the issue further into the neighborhood. Fights, sexual encounters and vandalism have been reported to staff during the late evening and early morning hours. The difficulty is determining where these people are coming from and whether or not an establishment should be held responsible. Some of these incidents may not be attributable to the restaurants or bars in the area let alone the applicant. Obviously, the individuals who are committing these acts are responsible, but it is reasonable to assume that most of these reported incidents are related to the sale of alcohol and the concentration of restaurants and bars in the area. Has the Brewing Company taken all reasonable steps to discourage and correct objectionable conditions attributable to their patrons when they are open? The applicant provides 3 -5 security guards who make sweeps of the parking lot and attempts to control patrons waiting for entry. They discourage loitering on site in the parking lot when they leave. Signs have been posted to alert patrons to be respectful of neighbors as they come and go. Staff requested that the applicant prepare an enhanced security plan in an effort to show how they can be more effective, and the applicant has not provided their security protocols. Residents who live overlooking the parking lot report that the applicant has not done enough especially in the light that the City has stepped up monitoring since receiving the initial complaints. Newport Beach Brewing Company August 17, 2006 Page 7 One resident has suggested that the entrance of the facility be relocated to the street side of the building. The main entrance is from the parking lot and if the main entrance were located between the building and Newport Boulevard, even if only during the late evenings, one might experience a reduction in activity in the parking lot. This would benefit the residents to the east and south that abut the parking lot but it would not eliminate all activity in the parking lot; however, it might simply create other impacts to the west. The patio and the landscaping would need to be physically modified to accommodate the patron queue and modified entrance and in staff's opinion, the parking lot entrance is likely acceptable up until approximately 9:OOPM. This concept has trade offs and it might be worthy of additional consideration if the Commission directs. Based upon the applicant's letter and follow up communications, they appear to be willing to consider this alternative during the late evening hours. Although some nuisance issues are not attributable to patrons, the applicant is proposing to cover and secure the trash enclosure. Since the closest housing is about roughly 20 feet away and is 2 -3 stories in height, this should help these residents. Condition No. 14 requires screening of the trash enclosure. The applicant proposes to change the method in which recycling of bottles is handled to reduce noise. Dumping bottles into a metal trash bin will make an objectionable noise especially when it is done around 2AM. The applicant proposes to place the bottles in plastic bins within the interior of the restaurant and then the bins would be loaded onto a truck. The applicant has also expressed his commitment to schedule all waste pickup (trash, recycling & grease trap vactoring) at more reasonable hours of the day. All of these offerings are steps in the right direction. Are the owner, manager and employees properly trained? In the applicant's letter, they are offering to have all applicable employees complete alcohol service training. Standard requirement F requires the owner, manager and all employees to undergo and successfully complete certified training program on responsible sales and service of alcohol. Although this condition indicates that compliance is required within 6 months from permit issuance, no information regarding initial or ongoing compliance was available. Staff recommends that this condition be amended to reflect the need to make this condition perpetual and that a report be submitted annually by the applicant documenting compliance with this condition as the applicant's staff changes over time. Staff has requested confirmation that the owner, managers and employees have or will soon complete this required training, but to date, the operator has not provided any additional information other than their letter. Summary In the prior report, staff wrote that the complaint indicates that the operator has no regard for the neighborhood and it was staffs impression that this statement was not correct as they seemed reactive to addressing the complaints. Staff believes the Newport Beach Brewing Company August 17, 2006 Page 8 applicant is willing to make improvements and modify their operation to address neighbor concerns, but based upon the operator's brief response letter (Exhibit No. 5), the applicant seems to be seeking specific guidance from the City. Although the applicant has made some efforts to address the neighborhood complaints, lingering issues remain. Clarification of several conditions of approval is necessary depending upon how the Commission views the nature of the operation. Staff recommends the following: 1. Condition No. 9 should be modified to eliminate the conflict between the term ancillary and the true nature of the operation. 2. Condition No. 10 should also be modified to clarify what is permitted and what is not. 3. Require that a screening cover be constructed on the trash enclosure. 4. Require that a new entrance be implemented on the Newport Boulevard side of the building for use after 9:00 PM Thursday through Sunday. 5. Require the preparation of a detailed security plan and its implementation. The Planning Commission can direct staff and the applicant to implement the items listed above. The Commission can add or modify the list of potential changes to this Use Permit. Staff would return with the changes to the conditions and the change to the plans for the Commission to review at a future hearing, If testimony received supports revocation, the action can be delayed to a future noticed public hearing as revocation was not an identified option within the notice for this hearing. The Commission also has the option to continue to monitor the situation and direct no changes at this time. Prepared by: Ja es Campbe I, Seni Planner Attachments: Submitted by: Patricia L. Temple, R anning Director 1. Staff report and minutes from May 4, 2006 2. Staff report and minutes from 1993 for Use Permit No. 3485 3. CDP 5 -93 -137 and supporting documents 4. Staff report and minutes from 1999 amendment of Use Permit No. 3485 5. Letter from the applicant's attorney dated August 8, 2006 6. E -mail from Joe Reiss dated August 9, 2006 7. Letter from City to Coastal Commission regarding enforcement of net public area y.fo n U 0 Exhibit No. 1 y.1l -. Planning Commission Minutes 05/04/2006 Page 2 of 13 Zinc Caf6 (PA2003 -225) ITEM NO 3222 E. Coast Highway I PA2003 -: annN review of Use Permit No. 2001 -040 that authorizes Zinc Cafe to operate as Approvc eating d drinking establishment with on -sale beer and wine license. linh Ung, sociate Planner, gave an overview of the staff report noting that no laints were eived regarding employee parking or the current delivery gement occurri in the back alley. She noted that staff recommends amending lion 6 to allow th \rppews ant to use the existing alley for his deliveries and that tion 36 for annu be terminated as future reviews can be initiated if Tutu laints arise. "hairperson Toerge asked abouXondition 6 allowing deliveries. He stated he would ike to change the hours of deliverftQ start at 7 a.m. in order to be consistent with the loise Ordinance and to end at 6 D.m. Secretan, owner of the Zinc Cafe, agrkd to the change in the hours of delivery. comment was opened comment was closed. Cole asked about evening operations. Secretan noted initially, following approval, evening operate s went until 8:00. T ted to be too cumbersome, so that has been discontinued an ey close at 6:00 . He has started a wine tasting program on Thursdays as they a the option to e at 8:30 p.m. and may expand this venue. otion was made by Chairperson Toerge to accept the review and to model that no delivery shall be permitted before 7:00 a.m. or after 6:00 p.m., and mdition 36 in place. imissioner McDaniel noted that unless the operator wants to change his hours, delete condition 36. Followinq discussion the vote was called. yes: Eaton, Hawkins, Cole, Toerge, Tucker and McDaniel oes: None bsent: Henn bstain: None OBJECT: Newport Beach Brewing Company ITEM NO 2920 Newport Boulevard Use Permit 3485 Discussion of complaints received by concerned Cannery Village residents regarding Newport Beach Brewing Company. Discussion Mr. Jim Campbell noted a letter received at the last Planning Commission meeting from he Cannery Village Concerned, a group of residents alleging violations of the use Lr. 12- http: / /www. city .newport- beach.ca.usiPInAgendas /2006 /mnO5- 04- 06.htm 03/19/2007 Planning Commission Minutes 05/04/2006 Page 3 of 13 )ermit as well as other activities they deem a nuisance to the neighborhood. He has >een in discussions with the Police Department, Code Enforcement and staff and has addressed these in the staff report. At Commission inquiry, he noted the deed estriction does not specify operation on particular days of the week. He has; however, >een in contact with the Coastal Commission staff, Mr. Schwing, who noted his mpressions. It is his impression that our condition that limits the net public area >etween Monday through Friday should apply daily, so that is a conflict. Mr. Schwing is n the process of acquiring the file from their archives to see if there is any additional nformation, which should be coming to staff within the next few weeks. Jerry Copley, General Manager of the Brewing Company, noted: • Condition No. 6 - We are under the impression that it was Monday through Friday and a section of the restaurant is closed off until 5:00 p.m. on those days. • Condition No. 9 - The kitchen is opened during the hours of alcohol service with the late night menu (pizzas and appetizers) from 10:00 p.m. to closing. . Condition No. 10 - Their emphasis is on being a restaurant. . Condition No. 17 - During football season on Sundays, there is a barbecue in the parking lot. Patrons are not allowed to consume alcohol in the parking lot and that is monitored. . Nuisance issues are being addressed by the increase of security staff in the parking lot when needed and to keep the noise level down, any patron in line is allowed to use the restroom in the establishment; security sweep the parking lot to assure no activity in cars, etc.; smoking is permitted on the patio; security clears out the parking lot starting at last call and continuing until all guests have left, which is about 1 in the morning; lids are being provided for the trash cans; the parking lot is swept daily; the next alcohol training class is June 8th, and about 3/4 of staff will be attending; and, letters have been sent to all purveyors and service people regarding service deliveries between 8 a.m. and no later than 8 p.m. . The Brewing Company feels they are a good neighbor as they have added signage, increased security and added surveillance cameras in the parking lot. at Commission inquiry he noted: • The staff had gone to the alcohol training in 1999; however, he has had a large staff turnover since then and the new staff will be attending the training in June. He agreed that he will have new staff members get the training as soon as possible. • The dinner crowd is usually between 7 p.m. and 9 p.m. Service from 11:00 p.m. and 1 a.m. is about 90% alcohol (55% liquor and 45% beer and wine) and 10% food. • Security staffing is 1 on Tuesday and Wednesday; 2 on Thursday; 5 on Friday and Saturday during a normal week. • Barbecue is handled by an outside vendor. The patron pays for the food inside and with a ticket they go outside and the food is put on a plate and then the patron comes back inside sits at a table to consume the food. ,ommissioner McDaniel noted the concern is that this should not be a bar; however, it s obvious that it switches between 11 and 1 and it is a bar. This is a problem as this is iot what was approved. y. l3 http: / /www.city.newport- beach. ca. us /PlnAgendas /2006 /mnO5- 04- 06.htm 03/19/2007 Planning Commission Minutes 05/04/2006 Page 4 of 13 rperson Toerge asked about a Special Events Permit. 1s. Temple answered that the need for a Special Events Permit is if there is amplified r live outside entertainment, or that the patronage associated with the activity exceeds 50 persons. We could verify the number by sending Code Enforcement to investigate the next time it happens. hairperson Toerge noted this is a discussion item only. No changes to the conditions e allowed, but the Commission can determine, following public testimony, that this �m should be brought back for a full hearing. comment was opened. Low, 29th Street resident, speaking for a group of concerned citizens, noted: • They do not wish to close the Brewery; as it brings value to the neighborhood; and they are supported being there as advertised. • Issues to consider: is the current use permit in error with discrepancies between staff report, council minutes and Coastal Development permit? • It is their contention that the intent of the use permit needs to operate in less than 1,500 square feet Monday thru Sunday. • Adherence to the use permit and type of business that is being conducted. They are a bar, what restaurant has bouncers? There are no complaints with other local restaurants. . The Brewery turns into an obtrusive bar operation after 10:30 p.m. . Operators have made strides but the more serious ones still remain. There are complicated issues that create a tremendous amount of difficulty for the neighborhood. . We are here to ask that this operation be confined to what it represented itself to be in the beginning. Reese, 30th Street resident, noted that patrons have to show their identification in �r to get into the establishment. It is not a restaurant, not with bouncers and serving ( appetizers after 10:00 p.m. This operation between 10:00 p.m. and 1:00 a.m. is ling more than a bar. This area is out of control and he is disturbed by the noise in early mornings. )rew Wetherhault, 30th Street resident, noted he agrees with previous statements. He hen distributed a listing of calls to the Police Department regarding alcohol related ncidents in this area. He stated that the restaurants and bars need to be maintained to heir use permits and allocations. rrie Stade, 29th Street resident, noted she has been awakened with noise and iimized by patrons. )hanie Rosanelli, resident of Cannery Village, noted the noise at night and that one not leave their windows open. She too has had her home vandalized by tagging. ristine Andros, 30th Street resident noted the challenges are the noise and parking activities. This establishment operates as a bar. She has spoken to the bar gyrator on several occasions to inform him of disturbances in his parking lot. http: / /www.city.newport- beach. ca. us /PlnAgendas /2006 /mn05- 04- 06.htm 03/19/2007 U %U Planning Commission Minutes 05/04/2006 Page 5 of 13 t Shepherdson, 31st Street resident, noted his agreement with previous speakers stated any help would be welcomed. /in Weeda, noted his agreement with the previous speakers and asked that this item brought back for formal review. comment was closed. owing a brief discussion, the Planning Commission decided to bring this item back a formal review of the use permit. This item will be scheduled for an August was made by Chairperson Toerge bring this item back for a formal review in ute motion was made by Commissioner Hawkins to call this item back for a within 90 days of this hearing date for review of the permit and operations in nce with that permit and other Coastal Commission conditions and other related s as necessary and take and receive public comment. r. Harp asked if the Commission would be looking at a revocation of the permit orjust edification or possible additional terms, how should staff set this up? nmissioner McDaniel noted he is not interested in revocation of the use permit but need to make sure that the conditions are adhered to. issioner Hawkins noted this is the spirit and thrust of his substitute motion. mmissioner Hawking restated his substitute motion: review of the permit, ferstanding the terms of the permit, enforcement of those terms of the permit to the ent that there is non - compliance and then possible modification. This hearing is to within 90 days. yes: Eaton, Hawkins, Cole, Toerge, Tucker, and oes: None bsent: Henn bstain: None UBJECT: Height Limit Exception for Light Standards (PA2006 -078) ITEM NC CA No. 200 ode Amendm o add an exception with Chapter 20.65 (Height Limits) of the Recommei unicipal Code. Th eption would allow light standards to exceed required height for Apprc nits subject to the revie approval of a Use Permit. -andon Nichols, Assistant Planner, g n overview of the staff report. He noted the upose of this amendment is to add anothe eption to Chapter 20.65 that would low light standards to exceed established heigh . s subject to the review and )proval of a use permit by the Planning Director. This tion requires the use �rmit to ensure that the proposal does not have a detriments ct on surrounding operties and shall be for light standards necessary for the illumin of parking lots, hletic fields and other similar outdoor areas. 7V-6_ http: //vwiv.cit3,.ne"ort- beach. ca. us /PlaAgendas /2006 /mnO5- 04- 06.htm 03/19/2007( 15 TO: CITY OF NEWPORT BEACH PLANNING COMMISSION STAFF REPORT PLANNING COMMISSION FROM: James Campbell, Senior Planner (949) 644 -3210, Lcampbellacity.newport- beach.ca.us SUBJECT: Newport Beach Brewing Company 2920 Newport Boulevard INTRODUCTION Agenda Item 3 May 4, 2006 FILE COPY On April 20, 2006 under public comments, the Planning Commission received a letter from The Cannery Village Concerned, which is a group of residents, property owners and business persons in Cannery village, contending that the Newport Beach Brewing Company is violating its Use Permit (Exhibit No. 1). The letter goes on to request that the Use Permit be reviewed by the Planning Commission. The Commission requested that a report be prepared. RECOMMENDATION Receive and file. DISCUSSION Background: The current use was established in 1993 with the approval of Use Permit No. 3485. A former market/deli was converted into the existing restaurant/brew pub and a 600 square foot outdoor patio was approved. The property is located at 2920 Newport Blvd. in the Specialty Retail area of the Cannery Village /McFadden Square specific plan. The Use Permit was approved subject to revisions of the off -site parking agreement which would have allowed the applicant to use 29 parking spaces in the Cannery Village Municipal parking lot prior to 5 p.m. However, at the Coastal Commission hearing in July, the staff and Coastal Commission disagreed with the action that had been taken by the City and it was their determination that the use of the 29 parking spaces in the city lot would conflict with the public's ability to use the parking lot prior to 5 p.m. • • Newpaach Brewing Company May 4, 2006 Page 2 The Coastal Commission approved a modified project subject to four conditions: 1) that the applicant record a deed restriction which would allow not more than 1500 square feet of service area being used prior to 5PM ; 2) that 41 off -site parking spaces will be maintained between 6AM and 5PM and 67 off -site parking spaces between 5 p.m. and 2 a.m., (the 41 off -site parking spaces between 6AM and 5PM are on privately owned property under the same ownership immediately adjacent to the brewpub and the additional spaces would be in the Municipal lot prior to 5 p.m.; 3) that the City Council %.Ioscind`lts "parWer - ction allowing the use of the off -site parking spaces in the Municipal Iotr irievr tQ -FPM; ) that the City will agree to enforce the restrictions on the area of service (the 1500 square feet being used prior to 5PM). The City Council later modified the project and conditions to conform to the Coastal Commission special conditions. In September 1999, the City Council approved an amendment to the Use Permit to allow Newport Beach Brewing Company full alcoholic beverage service as well as amending Condition No.. 7 related to the hours of operation on Fridays and Saturdays. The final revised findings and conditions of approval are attached. DISCUSSION The letter Mr. Low presented to the Commission on April 20"' was received back in • January of 2006. Since that time, Code Enforcement, Planning and Police Department staff have been investigating and monitoring the use. Police and Code Enforcement have meet with concerned residents and management of the Brewing Company. As a result, the Brewing Company has been taking steps to reduce incidents that are attributable to their patrons as well as to ensure that the use is operated in compliance with condition. They have increased their efforts to control the parking area by monitoring and controlling the people waiting to enter the establishment and they have increased sweeps of the parking lot by security personnel. "The' Police Department reports that there were 14 calls for services that are'reasortably attributable to the operation since June of 2005. Seven of the calls were for noise in the parking lot. There was one fight at the establishment and one arrest of an unconscious drunk man in the parking area although it is not known if the man was a patron at'the Brewing Company. The Police Department does not believe that the number of calls and incidents are above average. The Department has stepped up patrols and is monitoring the establishment. Checks to date have shown no violations of their ABC license nor any violations of State law related to serving intoxicated or underage individuals. The Department of Alcoholic Beverage Control has been contacted and has informed the City that they are conducting an investigation as a result of the complaints submitted by Mr. Low. The investigation is not complete and staff will follow up with ABC staff and will take action if appropriate. fi&-7-" y. -tom Newport Beach Brewing Company May 4, 2006 Page 3 Alleged Use Permit Violations 1. Condition No. 6- Net public area (NPA) limitation This condition requires a reduction of net public area prior to 5PM weekdays. Staff has monitored this condition periodically and has never observed a violation as the portion of the dining area designated to be closed prior to 5PM has always been closed. The condition does not apply to weekends. The complaint indicates that the Coastal Commission special condition applies daily and that the Condition No. 6 was not amended correctly to reflect what the Coastal Commission requires. The Coastal Commission's condition requires that. a deed restriction be recorded and it makes no reference io when the net public area restriction would apply. Staff has requested a copy from Coastal Commission staff and will transmit it to the Commission when it is received. Prior to Coastal Commission consideration, the City's original condition applied the area limitation to weekdays and not weekends and this would have been the starting point for discussion with the Coastal Commission. There is no record in the City's possession to indicate that the Coastal Commission intended to limit the net public area on weekends; however the deed restriction may shed some light on the issue. When the City amended its conditions after Coastal Commission action, the City maintained the NPA limitation to weekdays so one can safely conclude that changing it was not an issue with the City at that time. 2. Condition No. 9 - Ancillary alcohol sales The complaint does not provide any evidence of a violation. The condition does not provide any method to gauge compliance. The condition could be modified in the future to indicate a percentage of alcohol sales to food sales. " 3. Condition No. 10 — Bar prohibition This condition indicates that the allowed use is a "restaurant/brewpub" and it prohibits the use from becoming a bar, cocktail lounge, or other use serving alcoholic beverages during hours not corresponding to regular meal service. It is staffs belief that the use remains primarily a restaurant/brewpub although the use takes on characteristics of a bar during late evening hours. A strict interpretation of this condition would prohibit alcohol sales outside traditional meal times; however, the operation is open to 11 PM Sunday to Wednesday and 1 AM from Thursday to Saturday. The City has taken the position with similar uses that so long as the operator provides full meal service when open, the use would not be considered a bar. Staff understands that the operation has a limited menu later in the evening primarily consisting of appetizers. Newport Beach Brewing Company May 4, 2006 Page 4 4. Condition No. 17 — BBQ usage and alcohol use in the parking lot Condition No. 17 requires a special events permit for events or promotional activities outside normal operational characteristics of the use that would attract large crowds. The complaint speaks to the use of a BBQ and the consumption of alcohol in the parking lot. The Use Permit does not prohibit the use of a BBQ and the operator must not interfere with the use of the parking lot or exiting. The consumption of alcohol by anyone outside of the building or patio is not consistent with the operating characteristics and would constitute a violation. 5. Condition D — Objectionable conditions The complaint indicates many objectionable activities. As noted previously, the operator has agreed to monitor and moderate the activities in the parking lot. Further monitoring of the operator's efforts is needed. Some of the complaints regarding patron behavior are violations of law and if witnessed, the Police Department should be summoned. Due to the fact that the Police Department cannot patrol the establishment as often as possibly necessary, uniformed security in addition to the bouncers on the busiest nights may be considered. With regards to the trash area and trash dumping, the operator indicates that they have instructed their employees to secure the trash area and dump trash in a more sensitive manner. The trash dumpster is not located in a superior location as newly constructed residential units, including Mr. Low's unit, are located in close proximity. One simple way to eliminate trash dumping noise after hours is to prohibit it with a new condition. Trash would then need to be stored within the building or possibly on the patio overnight and dumped in the morning as a. reasonable hour assuming that this practice is consistent with the Health Department'rules. Staff is looking into the possibility of relocating or covering the trash enclosure. 6. Condition E — grounds maintenance This condition requires the operator to remove all trash or debris from the property and sidewalks daily. The operator indicates that they will ensure compliance with this condition. Staff has visited the site on several occasions since receiving the initial complaint letter and found the site to be free of trash as required. 7. Condition F — Employee alcohol service training The operator has been directed to submit evidence of compliance with this condition. —r-rr y�7-r4- Newport Beach Brewing Company May 4, 2006 Page 5 Summary The complaint indicates that the operator has no regard for the neighborhood. Staff's collective impression is that this statement is not correct as the operator has been responsive to addressing the nuisances that do occur from time to time at the establishment. The complaint is correct in that the Cannery Village is a neighborhood in transition. Several mixed use projects have been built and occupied in the immediate area of the NBBC and staff believes that the trend will continue. Staff does not agree with the complainant's contention that the Council erred in the approval of this operation. The NBBC has been co- existing fairly well, although not perfectly, with the neighborhood since 1993. Staff agrees with the complainant in that the immediate neighborhood is changing with the introduction of additional residents. The neighborhood is a mixed use neighborhood in which nuisances do and will occur more often than purely residential neighborhoods. The applicant is aware of fact that it is their responsibility to be a good neighbor as well as the fact that they must comply with the Use Permit. They have been responsive to living up to their obligations and staff believes that continued monitoring is needed. The City will continue to monitor the situation and take enforcement actions necessary to ensure compliance with the Use Permit. Potential courses of action The Planning Commission can set this use permit for review and possible amendment or revocation at a future noticed public hearing. This agenda item is for discussion purposes only and no amendments to the conditions can be made at this time. Prepared by: Submitted by: V Campb II, Senior Planner Attachments: P, 4 1, �A' E� Patricia L. Temple, P anning Director 1. Complaint letter from The Cannery Village Concerned 2. Current conditions of approval i• � �I The Cannery Village Concerned Agroup of residents, property owners and business persons In the CanneryVBlage January 25, 2006 City of Newport Beach 330 Newport Boulevard Newport Beach, California 92663 Attn: Code Enforcement Police Department Planning Commission RE: Newport Beach Brewing Company 2920 Newport Boulevard, Newport Beach Use Permit Number 3485 (9/13/1999) Dear Sir /Madame: The purpose of this letter is to request compliance enforcement with "Use Permit" number 3485, Issued to the Newport Beach Brewing Company and a formal request for a "Use Permit" review by the Planning Commission. BACKROUND: The Newport Beach Brewing Company, hereinafter referred to as (NBBC), operates a restaurenVpub at the above location, which was established on or about 1990. The most recent "Use Permft" was granted In 1999, subsequent to a request by NBBC to add an ABC No. 75 alcohol license, which allowed the NBBC to add hard liquor, over and above, beer and wine (ABC type 23 license) at the subject location. The Planning Commission denied the request. The request was overturned and approved by the City Council. The applicant's main argument for the addition of the ABC 75 alcohol license as stated by Keith Vohr, a shareholder in the NBBC, "the Idea of adding alcohol service. IS to stay competitive and Improve the restaurant." Additionally, the applicant represented "We have from day one attempted to be more of a restaurant than a bar." And "We are not and do not have any desires to become a nightclub..." And Roz Salomone, the owner of NBBC stated "I live In the area and will do everything possible to maintain harmony." And Mike Madlock, vice president of NBBC, represented "As a local resident, I want to keep peace In the neighborhood. One of the problems that existed In the past Is being taken care of with the closing of Snug Harbor and the Cannery Restaurant." (Above quotes from Planning' Commission minutes August 5, 1999 and "Supplemental Information for Agenda Item No. 17 dated 9/13/99. Both documents are enclosed). Upon the representations of the applicant, the Planning Commission and the California Coastal Commission Imposed conditions upon the applicant's "Use Permit" The Planning Commission and the California Coastal Commission anticipated the "parade of horrlbles" with respect to the neglectful behavior of the NBBC, however, after Planning Commission denial and an appeal by the NBBC, the City Council approved the NBBC request. The City Council did not fully consider the needs of the Cannery Village "mixed use" community In transition and was over optimistic with respect to y.zl Exhibit No. 9 the operators of the NBBC and the adverse Impact of the NBBC to the health, safety, peace, morals, comfort and general Welfare of the community. ERROR IN "USE PERMIT ": The California Coastal Commission Imposed conditions on the NBBC. The conditions are Incorporated In the "Coastal Development Permit" dated January 21, 1994. (Copy enclosed) Under "Special Conditions" Item 1. "Deed Restriction Limiting Daytime Use" specifically states " ... no more than 1,500 square feet of service area of the subject restaurant/brewpub shall be open before 5p.m" The California Coastal Commission, at It's meeting in July 1993, made a determination that the offsite parking agreement between the NBBC and the City of Newport Beach "would conflict with the public use of the same spaces prior to the hour of 5 p.m. and therefore took action to modify the approval, subject to four conditions... 4) that the City will agree to enforce the restrictions of the area of service (the 1500 square feet being used prior to 5 p. m.) ". (quote from the City of Newport Beach Council meeting minutes of September 27, 1993 volume 47 pages 253 & 254 (copy enclosed)). Furthermore, When Mayor Turner opened the public hearing on "Use Permit" number 3485, he specifically stated "reduce the allowable daytime "net public area" to 1500 square feet before 5:00 p.m. ' (Counci( Meeting minutes Volume 47 page 253 item 9). "James Person, representing the applicant, stated they feel this Is a reduction of Intensity of use from the time it was approved by the City Council last March; however they do agree to the conditions of approval imposed by both the City and the Coastal Commission." (Council Meeting minutes September 27, 1993 Volume 47 page 254). The "Use Permit" as executed on September :L3, :L999 (copy enclosed) mistakenly, in condition number 6, only restricts the 1500 square feet of net public area devoted to daytime use on Monday through Friday. it does not include Saturday and Sunday which was a specific condition of the California Coastal Commission and the City Council. We are unable to find any evidence to the contrary. Therefore, we request a review of "Use Permit" 3485 to correct the serious error In the wording of the "Use Permit" and the Planning Commission needs to review the "Use Permit" to ensure that the health, safety, peace, morals, comfort and general welfare of the community are protected. JURISDICTION a0d CONTROL: The City of Newport Beach has jurisdiction over the NBBC and Is obligated to enforce the conditions of the "Use Permit" Imposed by the City of Newport Beach and the California Coastal Commission. The City of Newport Beach has control over the NBBC and may review the "Use Permit" under section (K.) of said permit. K. The Planning Commission may add or modify conditions of approval to this use permit upon a determination that this use permit causes Injury, or Is detrimental to the health, safety, peace, morals, comfort, or general welfare of the community. POLICE DEPARTMENT COMPLAINTS: The Newport Beach Police Department has been called repeatedly to correct infractions and disturbances by the NBBC. The police department generally responds to the complaints by residents, property owners and business persons. It Is clear the police department Is "numb" and the neighborhood Is "frustrated and outraged" from the frequent Infractions and disturbances; however, It Is not acceptable that most police officers cannot do very much to resolve the complaints and verbally respond to the neighborhood by saying "you should not live next to a bar." We respect the y.2 Z rf authority of the Police Department; however, the rights of all parties deserve the protection afforded by the applicable codes and laws. P IFIC C ITICAL VIOLATIONS• The NBBC blatantly violates, on a continual basis, several conditions of the "Use Permit." Residents, property owners and business persons have attempted to effectuate responsible co- operation and adherence to the "Use Permit" by way of open dialogue with the owners and management of the NBBC. The dialogue falls.on deaf ears. No change has occurred. A copy of the "Use Permit" Is enclosed and Incorporated with this document. The specific violations are as follows: 1. Condition 6. The NBBC operates In a net public area greater than 1,500 square feet prior to 5 pm daily. Routinely (weekends), and during special events sponsored by the NBBC (televised sporting events, e.g. college sports, Super Bowl and World series, to mention a few) there Is total disregard for this condition. 2. Condition 9. The operation of the NBBC and the service of alcoholic beverages Is not ancillaryto the primary food service operation. 3. Condition 10. The NBBC Is a "bar, cocktail lounge, or other use serving alcoholic beverages... 4. Condition 17. The NBBC routinely cooks with a BBQ outside the front door (by the parking lot) on Saturdays and Sundays. Patrons and employees are permitted to consume alcoholic beverages In the parking lot during the "food service" operation from the BBQ. 5. Condition D. The NBBC has failed to correct objectionable conditions that constitute a nuisance In the parking areas, sidewalks, alleys and areas surroundingthe alcoholic beverage outlet and adjacent properties. a. The NBBC allows a noisy "cue -up" line In the parking lot In the day and night which can swell to 75 patrons, or more, waiting to gain entrance to the establishment. The patrons °scream and yell" In a party atmosphere waiting to gain entrance. b. There are no toilet facilities for the crowd. The patrons routinely vomit, urinate and defecate In the surrounding residences and business properties. . c. Patrons have been observed In various sexual acts in the stairways and corners of adjacent properties. Panties and bras are often found on the adjacent properties In the mornings. d. Destruction, by the drunken patrons, to private property and .the, residences and businesses Is a common occurrence. e. Slnce,smoking Is not permitted In the bullding, patrons are Instructed and permitted to. smoke tobacco In the parking lot. The patrons continue the "party atmosphere" with no regard for the peace or general welfare of the neighbors. f. Patrons loiter In the parking lot and adjoining areas, "screaming and yelling" sometimes for hours after the establishment closes. This prevents residents from sleeping in their homes usually until 3 am on Friday and Saturday and 1 am on many weekdays. The loitering of over-served patrons often erupts Into fights and confrontation. r g. The trash containers are full and left open. The disposal of "hops and barley" from the brewing operation are left open for the birds to eat at their leisure. The odor Is disgusting. The procedure of "cleaning up" the bar operation results In bottles and trash being dumped by employees well after the NBBC hours of operation have expired. 6. Condition E. The parking lot and surrounding areas are riddled with litter and trash which requires the residents and business owners to pick up trash continually to maintain an acceptable environment. 6. Condition F. The employees of the NBBC do not receive their certif led training as required by the "Use Permit." The NBBC allows unbearable conditions to exist, all of which are critical violations of the "Use Permit." The NBBC has no regard for their neighbors or neighborhood. In the spirit of "peaceful coexistence" and "civllity" the City of Newport Beach, the Alcohol and Beverage Control, The California Coastal Commission and the Newport Beach Police Department must act promptly and effectively to restore order to the neighborhood. Sincerely, The Cannery Village Concerned cc: Alcohol and Beverage Control California Coastal Commission y. z y E)CMIT "B" FINDINGS AND CONDITIONS FOR APPROVAL FOR USE PERMIT No. 3485 (AMENDED) APPROVED BY CITY COUNCIL 09/13/1999 FINDINGS: 147 1. The Land Use Element of the General Plan designates the site for "Retail and Service Commercial' uses and a restaurant/brewpub is considered a permitted use within this designation. 2. The project is located within the Cannery Village/McFadden Square Specific Plan (SP -6) - Specialty Retail (SR) District that permits eating and drinking establishments with a use permit. 3. On -sale alcoholic beverage outlets are permitted with the approval of a use permit, 4. This project has been reviewed, and it has been determined that it is categorically exempt from the requirements of the California Environmental Quality Act under Class 1 (Existing Facilities). 5. The approval of the amendment to Use Permit No. 3485 to allow a full on -sale alcoholic beverage service will not, under the circumstances of the case, be detrimental to the health, safety, peace, morals, comfort and general welfare of persons residing or working in the neighborhood or be detrimental or injurious to property or improvements in the neighborhood or the general welfare of the City, for the following reasons: ■ The restaurant/brewpub use is compatible with the surrounding commercial and nearby residential uses since eating and drinking establishments are typically allowed in mixed commercial districts. • Conditions have been added to address potential problems associated with traffic, parking, trash disposal, odors, and unsightly conditions. • A Condition has been added to require a special events permit for any event or promotional activity outside the normal operational characteristics of this restaurant business. Z5 Exhibit No. 2 b. The proposed project is consistent with the purpose and intent of Chapter 20.89 of the Zoning Code (Alcoholic Beverage Outlets) for the following reasons: ■ The convenience of the public will be served by the sale of distilled beverages in a restaurant/brewpub setting. ■ The project is in an area where the crime rate exceeds the citywide average by more than 20 %. However, there is no evidence that this high crime rate is attributable to the proposed project. ■ The number of alcohol licenses per capita in the reporting district and adjacent reporting districts is above the average for Orange County. However, the project has the only alcohol license for a brewpub, and the convenience of the public can be served by the sale of distilled spirits in a restaurant/brewpub setting. ■ The percentage of alcohol - related arrests in the reporting district in which the project is proposed and in the adjacent reporting district is higher than the percentage of alcohol- related arrests citywide. However, there is no evidence that the alcohol - related arrests are attributable to the project. ■ No day care centers, places of religious assembly, park and recreation facilities, or schools are located in the vicinity of the project site. Residential uses are located in the vicinity of the project site. However, the project has been conditioned so as to address any potential impacts. CONDITIONS: 1. The proposed development shall be in substantial conformance with the approved site plan, floor plan and elevations, except as noted below. 2. That a covenant or other suitable, legally binding agreement shall be recorded against the off -site parking lot assuring that all of the requirements of Section 20.63.080 (I) of the Municipal Code, will be met by the current and future property owners. Said covenant or agreement may include provisions for its future termination at such time as the development on the building site is removed or at such time as the floor area devoted to the restaurant/brewpub reverts back to a base FAR use. 3. The applicant shall provide a minimum of one parking space for each 50 square feet of net public area before 5:00 p.m. and one parking space for each 40 square feet of net public area after 5:00 p.m. in conjunction with the restaurantibrewpub. 4. An amended off -site parking agreement shall be approved by the City Council, guaranteeing that a minimum of 41 parking spaces shall be provided on property iii y. 2(P located on .Lots 18 -21 and portions of Lots 17 and 22, Block 230, Lancaster's Addition, for the duration of the existing and proposed uses located on Parcel 1, Parcel Map 92 -40 (Resubdivision No. 527). 5. The property owner shall pay for 29 in -lieu parking spaces in the Cannery Village Municipal Parking Lot on an annual basis for the nighttime operation (after 5:00 p.m.) of the restaurant/brewpub use as agreed upon by the Sales Agreement between the City of Newport Beach and the property owner. 6. The net public area of the restaurant/brewpub, which is devoted to daytime use Monday through Friday (prior to 5:00 p.m.) shall be limited to 1,500 square feet. The balance of the net public area shall be physically closed off to the public by a fixed barrier and shall not be used until after 5:00 p.m. daily. 7. The hours of operation for the restaurant/brewpub shall be limited to the hours between 6:00 a.m. and 11:00 p.m. Sunday through Thursday and between 6:00 a.m. and 1:00 a.m. on Friday and Saturday. S. All employees shall park either in the privately owned off -site parking area or in one of the municipal parking lots in the area. 9. The operation of the brewery and the service of alcoholic beverages shall be ancillary to the primary food service operation of the restaurant. 10. The approval of this use permit is for a restaurant /brewpub and shall not be construed as the approval of a bar, cocktail lounge, or other use serving alcoholic beverages during hours not corresponding to regular meal service hours (food products sold or served incidentally to the sale or service of alcoholic beverages shall not be deemed as constituting regular meal service) nor as the approval of a cabaret, nightclub, or other use with the principal purpose of providing live entertainment and/or dancing. 11. No outdoor loudspeakers or paging system shall be permitted in conjunction with the proposed location. 12. A washout area for refuse containers shall be provided in such a way as to allow direct drainage into the sewer system and not into the Bay or storm drains, unless otherwise approved by the Building Department. 13. Kitchen exhaust fans shall be designed to control smoke and odor to the satisfaction of the Building Department. 14. All mechanical equipment and trash areas shall be screened from surrounding public streets and alleys and adjoining properties. 15. The development standards regarding walls surrounding the restaurant site and underground utilities shall be waived. iv �(. 2 7 16, Should prerecorded music be played within the restaurant facility, such music shall be confined to the interior of the building, and all doors and windows shall be kept closed while such music is played. 17, A special events permit is required for any event or promotional activity outside the normal operational characteristics of this restaurant business 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. 18. Should this business be sold or otherwise come under different ownership, any future owners or assignees shall be notified of the conditions of this approval by either the current business owner, property owner or the leasing company. STANDARD CITY REQUIREMENTS: A. The project is subject to all applicable City ordinances, policies, and standards, unless specifically waived or modified by the conditions of approval. B. Signs and displays shall not obstruct the sales counter, cash register, seller and customer from view from the exterior. C. Loitering, open container, and other signs specified by the Alcoholic Beverage Control Act shall be posted as required by the ABC. D. The applicant shall take reasonable steps to discourage and correct objectionable conditions that constitute a nuisance in parking areas, sidewalks, alleys and areas surrounding the alcoholic beverage outlet and adjacent properties must be taken during business hours if directly related to the patrons of the subject alcoholic beverage outlet. E. The exterior of the alcoholic beverage outlet 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. F. All owners, managers and employees serving and/or selling alcoholic beverages shall undergo and successfully complete a certified training program in responsible methods and skills for serving and selling alcoholic beverages. To qualify to meet the requirements of this section a 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. 0 y. ZF G. The project will comply with the provisions of Chapter 14.30 of the Newport Beach Municipal Code for commercial kitchen grease disposal. H. All signs shall conform to the provisions of Chapter 20.67 of the Municipal Code. I. This use permit for an alcoholic beverage outlet granted in accordance with the terms of this chapter shall expire within 12 months from the date of approval unless a license has been issued or transferred by the California State Department of Alcoholic Beverage Control prior to the expiration date. J. Coastal Commission approval shall be obtained prior to issuance of any building permits. K. The Planning Commission may add to or modify conditions of approval to this use permit upon a determination that this use permit causes injury, or is detrimental to the health, safety, peace, morals, comfort, or general welfare of the community. vi y zy � Exhibit No. 2 54A N K v. 31 ,;�, Planning Commission *ting February 18, 1993 Agenda Item No. 3 CITY OF NEWPORT BEACH • TO: Planning Commission FROM: Planning Department SUBJECT: Use Permit No. 3485 (Public Hearing) Request to permit. the establishment of a combination restaurant /brewpub with on -sale beer and wine, on property located in the "Specialty Retail" area of the Cannery Village /McFadden Square Specific Plan. The proposal also includes: the establishment of an outdoor patio dining area; the use of 29 previously approved in -lieu parking spaces located in the Cannery Village Municipal Parking Lot; the amendment of a previously approved off -site parking agreement so as to increase the number of privately owned off -site parking spaces to 41 spaces; and the approval of a transfer of development rights from the privately owned off -site parking area to the restaurant site. LOCATION: Parcel 1, Parcel Map 92 -40 (Resubdivision No. 527) (restaurant site); and portions of Lots 17 and 22 and Lots 18-21, Block 230, Lancaster's Addition (off -site parking lot) located at 2920 Newport Boulevard, on • the southeasterly corner of Newport Boulevard (northbound) and 30th Street, in Cannery Village. ZONE: SP -6 APPLICANT: Michael Madlock, Manhattan Beach OWNER: Dorothy Doan, Santa Ana Application _ This application involves a request to permit the establishment of a combination restaurant/brewpub with on -sale beer and wine, on property located in the "Specialty Retail" area of the Cannery Village /McFadden Square Specific Plan. The proposal also includes: the establishment of an outdoor patio dining area; the use of 29 previously approved in -lieu parking spaces located in the Cannery Village Municipal Parking Lot; the amendment of a previously approved off -site parking agreement so as to increase the number of privately owned off -site parking spaces to 41 spaces; and the approval of a transfer of development rights from the privately owned off -site parking area to. the restaurant site. In accordance with the provision of the Cannery Village /McFadden Square Specific Plan, restaurants are permitted in the "Specialty Retail" area subject to the approval of a use permit in each case. Section 20.07.070 of the Municipal Code also provides that the transfer of development • q.3-20 TO: Plan )g Commission - 2. rights between two properties shall be subject to a use permit in each case. Use permit procedures are set forth in Chapter 20.80 of the Municipal Code. Environmental Significance This project has been reviewed, and it has been determined that it is categorically exempt from the requirements of the California Environmental Quality Act under Class 1 (Existing Facilities). Subject Property and Surrounding Land Uses The subject property is comprised of two parcels of land. Parcel No. 1 contains a 7,276± sq.ft. commercial building with the Pelican Market on the ground floor (now vacant), offices on the second floor and 2 on -site parking spaces. Parcel No. 2 is a privately owned off -site parking area containing 41 parking spaces which the property owner has under a long term lease. To the north, across 30th Street is an automobile repair facility, a mixed commercial /residential development, a vacant lot and a stained glass shop; to the east is the Cannery Village Municipal Parking Lot; to the south, across a 14 foot wide alley is the Cafe Looma Restaurant (now vacant); and to the west, across Newport Boulevard are a variety of commercial uses. Background At its meeting of July 15, 1976, the Planning Commission approved Site Plan Review No. 1, which permitted the construction of the existing commercial building which at the time, was on property located in a Specific Plan Area where a specific plan had not been adopted. In such cases, any new development is subject to the approval of a Site Plan Review. Said approval also included a recommendation to the City Council to approve an off -site parking agreement so as to provide a minimum of 29 parking spaces on the adjoining parcel behind the building. It should be noted that the parking area at the rear of the building includes 2 on -site spaces and 41 off -site spaces. At the same meeting, the Planning. Commission approved Resubdivision No. 527, which permitted the establishment of a single building site for the two story commercial building and eliminated interior lot lines where two lots previously existed. The actions of the Planning Commission was taken with the findings and subject to the conditions of approval set forth in the attached excerpts of the Planning Commission minutes dated July 15, 1976. At its muting of July 26, 1976, the City Council approved an off -site parking agreement which permitted the use of the off -site parking spaces described above. In 1988, the City of Newport Beach purchased the property identified on the attached Assessor's Map as the Cannery Village Municipal Parking Lot from the property owner. As a condition of the sale, the property owner was given an option to purchase 47 in -lieu parking spaces with the following stipulations: y.33 TG: Plan: g Commission - 3. 1. The option must be exercised within two years of the close of escrow (April 8, 1988). It is noted that this option has been exercised by the property owner. 2. The use of the in -lieu spaces is limited to businesses on the Cafe Looma and the Pelican Market sites. It is noted that the property owner committed 18 of the 47 in -lieu spaces to the reestablishment of the restaurant known as Cafe Looma at 2900 Newport Boulevard (Use Permit No. 3343). 3. Any use of the in -lieu spaces would be for nighttime only, from 5:00 p.m. to 6:00 a.m. 4. Any in -lieu spaces would be purchased at the current rate ($150.00 per space per year), but not to exceed $500.00 during the first five years (from the exercise of the option). During the second five years, the rate would be 75% of the current rate or $500.00, whichever is less. After ten years, the rate reverts to the current rate set forth in the Municipal Code at the time. Analysis The applicant is proposing to establish a combination restaurant and brewpub in the ground floor portion of the existing building. As represented in the attached floor plan for the facility, the brewery will occupy approximately 1,532± square feet (32 percent) of the total gross floor area of the restaurant which is approximately 4,776± square feet, including the outdoor dining area. The "net public area" of the restaurant will be 2,532± square feet including a 600± square foot outdoor dining area which is proposed in the front of the restaurant. The applicant has indicated that there will be approximately 10 employees on duty during peak hours of operation, and the hours of operation will be from 6:00 a.m. to 11:00 p.m. Sunday through Thursday and from 6:00 a.m. to 2:00 a.m. on Friday and Saturday. Beer and wine will also be served. No live entertainment is proposed. A letter from the applicant describing the operation is attached for Commission review. Conformance with the General Plan and the Local Coastal Program Land Use Plan The Land Use Element of the General Plan and the Local Coastal Program Land Use Plan designate the site for "Retail and Service Commercial' use. The proposed restaurant is a permitted use within this designation. Although the proposed brewery is not specifically listed as a permitted use in the 'Retail and Service Commercial' area, it occupies only 32 percent of the total floor area of the facility; therefore, it is staffs opinion that it is clearly an incidental use which is ancillary to the primary restaurant use and is therefore a permitted use. The Land Use Element also establishes area specific land use policies throughout the City. These "area" policies set a floor area ratio (F.A.R.) development limit of 0.5/0.75 FAR on TO: Planr-..g Commission - 4. the subject property. Based on this requirement, the Base Development Allocation for Parcel I which is developed with the commercial building, is 0.5 times the site area or 4,159± square feet (8,319± sq.ft. x 0.5 = 4,159± sq.ft.). As indicated previously, the gross floor area of the existing building on Parcel 1 is 7,276± square feet or .87 FAR; therefore, the existing structure is nonconforming relative to allowable Floor Area Ratio. It is also noted that the proposed restaurant is classified as a Reduced FAR use and will occupy an existing commercial space previously used as a retail market. In cases such as this, where a commercial building is to be occupied by a combination of a Base FAR use (offices), a Reduced FAR use (restaurant), and a Maximum FAR use (brewery), Section 20.07.040 of the Municipal Code provides that the Base Development Allocation shall not be exceeded by the sum of the weighted square footages of each type of use. Weighted square footages are determined by multiplying the gross floor area of a given use by a weighted factor of 1.67 for Reduced FAR uses, 1.0 for Base FAR uses and 0.5 for Maximum FAR uses. The following table sets forth the weighted development for each type of uses within the proposed project: Type Use Square Footaee x Weighting_ Factor = Weighted - Development Office 3,100± sq.ft. x 1.0 = 3,100± sq.ft. Restaurant 3,244± sq.ft. x 1.67 = 5,417± sq.ft. Brewery 1,532± sq.ft. x 0.5 = 766±sa.ft. Total Weighted Development 9,283± sq.ft. Previous Weighted Development 7.276± sa.ft. Net Increase In Weighted Development 2,007± sq.ft. As indicated in the above table, the establishment of the proposed restaurant and brewpub will increase the weighted development on the property by 2,007± square feet. Inasmuch as Parcel 1 is nonconforming with regards to Floor Area Ratio, Section 20.07.070 G of the Municipal Code requires the elimination of the nonconforming FAR in conjunction with a transfer of development rights; and further, that the gross floor area following the intensity transfer shall not exceed the'base development allocation permitted by the Code. In light of this requirement, it is necessary for the property owner to record a covenant or agreement which transfers 5,124± square feet of the 6,603± square feet (13,206± sq.ft. x 0.5 = 6,603± sq.ft.) of development rights of Parcel 2 to Parcel 1, thereby bringing the weighted development proposed on Parcel 1 to within the allowable 0.5 Base Development Allocation. Such a covenant may be worded so as to allow for a reversion of the development rights should the development on Parcel 1 be removed or the proposed restaurant be replaced by a Base FAR uses such as retail or service commercial, or offices. Off - Street Parking Requirement Based on the current restaurant parking requirement of one parking space for each 40 square feet of "net public area ", 64 parking spaces are required for the subject restaurant use (2,532± sq.ft. _ 40 sq.ft.= 63.3 or 64 spaces). It should be further mentioned that pursuant to Section 20.30.035 B(4) of the Municipal Code, the Planning Commission may TO: Plan. g Commission - 5. increase or decrease the parking requirement of a restaurant within a range of one parking space for each 30 sq.ft. of "net public area" (85 parking spaces) or one parking space for each 50 sq.ft. of "net public area" (51 spaces). It is staffs opinion that one parking space for each 40 square feet of "net public area" will be adequate in this case, inasmuch as there is no dancing or live entertainment proposed with the restaurant. In addition to the restaurant parking, the existing remaining offices on the second floor of the building require one parking spaces for each 250 square feet of floor area, or 12 parking spaces (3,000± sq.ft. _ 250 sq.ft. = 12 spaces). Therefore, the combined day -time parking requirement for the existing and proposed uses is 76 parking spaces. Inasmuch as a majority of the office uses on the property are closed after 5:00 p.m. during the week and on weekends, the nighttime and weekend parking requirement for the property is only 64 spaces. Prop_ose_d Off - Street Parking As indicated in the previous Background Section, there are 2 on -site parking spaces and 41 off -site parking spaces which are currently leased by the property owner and are for the exclusive unrestricted use of the proposed restaurant /brewpub and the second floor offices within the subject building. In addition, the property owner has 29 remaining in -lieu parking spaces in the Cannery Village Municipal Parking Lot; however, such parking may only be used between 5:00 p.m. and 6:00 a.m. Therefore, the subject property has 43 daytime spaces and 72 nighttime spaces after 5:00 p.m. Inasmuch as the second floor offices will be closed after 5:00 p.m. Monday through Friday and all day on Saturday and Sunday, the applicant is proposing to maintain a shared parking arrangement in order to satisfy the off - street parking requirement for the restaurant / brewpub. The following table sets forth the nighttime and daytime parking requirement for each use: arkinh] Type Use Daytime Offices 12 spaces Restaurant 64 spaces Total 76 spaces teauirement Nighttime and Weekends 0 spaces 64�snaces 64 spaces Parking Provided Daytime Nighttime and Weekends 12 spaces 0 spaces 31 spaces 72 space 43 spaces 72 spaces As indicated in the above figures, the available daytime parking for the restaurant is deficient by 33 parking spaces (64 spaces - 31 spaces = 33 spaces). Based on the available daytime parking for the restaurant (31 spaces) only 1,240 square feet of "net public area" would be permitted before 5:00 p.m. (31 spaces x 40 sq.ft. per space = 1,240 sq.ft.). In order to allow a greater amount of daytime "net public area" in the restaurant, the property owner is proposing to ask the City Council to remove the daytime restriction on the in -lieu parking spaces, which would provide 29 additional daytime parking spaces. Such an approval would increase the restaurant daytime parking to 60 spaces (31 private spaces + TO: Plam�.,ig Commission - 6. t 29 in -lieu spaces = 60 spaces) which would allow up to 2,400 square feet of "net public area" in the proposed restaurant during the day. This means that 132± square feet of the proposed "net public area" could not be used until the second floor offices closed at 5:00 p.m. In previous similar situations, the Planning Commission has required a suitable portion of the "net public area" to be physically separated and identified for nighttime use only. Staff has included such a condition in the attached Exhibit "A" for approval. P_r.ovosed Amendment to Off -Site Parkin Agreement As mentioned previously, the use of the privately owned off -site parking area was approved in conjunction with the original construction of the subject building and includes the provision,of a minimum of 29 parking spaces. Inasmuch as all 41 of the off -site parking spaces will be required as a result of this application, the property owner is required to amend its off -site parking agreement so as to reflect the current number of required parking spaces. Staff has no objections to an increase in the number off -site parking spaces associated with this application. Restaurant Develoyment Standards Chapter 20.72 of the Municipal Code contains development standards for restaurants to ensure that any proposed development will be compatible with adjoining properties and streets. Said development standards include specific requirements for building setbacks, parking and traffic circulation, walls surrounding the restaurant site, landscaping, exterior illumination, signing, underground utilities, and storage. Section 20.72.130 of the Municipal Code states that any of the above mentioned development standards for restaurants may be modified or waived if such modification or waiver will achieve substantially the same results and will in no way be more detrimental to adjacent properties or improvements than will the strict compliance with the standards. Should the Planning Commission wish to approve this application, staff is of the opinion that the on -site development standards as they apply to walls surrounding the restaurant site, and underground utilities should be waived because of the existing developed nature of the site. Uecific Findings Section 20.80.060 of the Newport Beach Municipal Code provides that in order to grant any use permit, the Planning Commission shall find that the establishment, maintenance or operation of the use or building applied for will not, under the circumstances of the particular case, be detrimental to the health, safety, peace, morals, comfort, and general welfare of persons residing or working in the neighborhood of such proposed use or be detrimental or injurious to property and improvements in the neighborhood or the general welfare of the City. Section 20.07.070 J of the Municipal Code provides that certain findings shall be made in conjunction with the approval of a transfer of development rights. Finally, Section 20.63.045 B requires certain findings to be made in conjunction with the approval of an off -site parking agreement. Should the Planning Commission wish to approve Use Permit No. 3485, the findings and conditions of approval set forth in the attached Exhibit y 3 7-e Trt-� .. TO: Pla; g Commission - 7. "A" are suggested. Should the Planning Commission wish to deny the application, the findings and conditions of approval set forth in the attached Exhibit "B" are suggested. PLANNING DEPARTMENT JAMES D. HEWICKER, Director By W. William Ward Senior Planner Attachments: Exhibit "A" Exhibit "B" Vicinity Map Assessor's Parcel Map showing location of restaurant site, off -site parking area and Cannery Village Municipal Parking Lot Letter from applicant describing the brewpub concept of operation Excerpts of the Planning Commission Minutes dated July 15, 1976, pertaining to Site Plan Review No. 1 and Resubdivision No. 527 Site Plan, Floor Plan and Elevations �f.3k .� NEWPORT BEACH BREWING COMPANY Newport Beach Brewing Company, Inc. "(the Operators) ", is a California Corporation formed to construct and operate a restaurant /brew -pub to be called Newport Beach Brewing Company, which will be located at 2920 Newport Boulevard in Newport Beach, California. The restaurant will be open from 6:00 a.m. to 11 :00 p.m., five days a week and 6:00 a.m. to 2:00 a.m., Friday and Saturday. There will be no live entertainment. The exterior of the restaurant /brew -pub will offer a person passing -by the "old world" ambiance of a fun and energetic eating and drinking establishment. This highly desirable Cap Cod designed building is highlighted with a random pattern brick front, shingle roof, gables, window walk, and painted wood trim. The focal point of the restaurant /brew -pub will be the custom made copper accented stainless steel beer brewing equipment that will be placed behind the bar and will rise to the ceiling of the building. These brewing tanks and storage vats will be cleaned and polished daily to keep their luster and appeal. The Operators of the restaurant /brew -pub are working carefully with their experienced architect and design team to select a theme that will create a warm, yet vibrant environment for patrons to enjoy. An emphasis for the interior of the restaurant will be comfortable stained hard -wood and brick that offer a rustic old world charm and ambiance. The bar is expected to be stained and shined dark hardwood and cooper with a brass foot rail that will give the immediate area an "upper- class" feel. There will be bountiful seating at the bar and on bar stools directly across from the bar. There will be seating at tables throughout the remainder of the restaurant, as well as -on -the patio. The walls will be brick and decorated with memorabilia from the brewing industry with particular emphasis on California pre - prohibition breweries, early Newport Beach and brew -pubs and micro - brewers currently operating in California and the Pacific Northwest. The restaurant's menu will feature classic, as well as, up- to -date cuisine that will appeal to the modern palate. Appetizers will include buffalo wings, beer battered fried onion rings, and "Armadillo eggs" (stuffed jalapeno peppers). A visible custom brick wood fired pizza oven will be the focal point as a number of individual gourmet wood fired pizzas will be served. Newport Beach's "finest" fresh ground burger will also head the entrees with other choices including a "naked" chicken breast sandwich, and a selected number of pasta dishes. A wide variety of salads will be offered either before a meal or as a meal themselves and "World y.3q � Championship" homemade chili will be served in a similar manner. There will also be an assortment of fresh baked desserts available to patrons of the establishment. The restaurant /brew -pub intends to offer a full service wine and beer bar with the emphasis on premium beer that will be brewed on the premises. There will usually be four to six beers available that were brewed on site. The range of beers will include ales, pilsners, lagers and stouts. The brewery will produce approximately 16 varieties of beer each year, including such special seasonal flavors as Octoberfest Pilsnor and Christmas Ale. The beer should present itself as quite a value to the customer, since a 16 -ounce glass of premium, rich beer will cost justly slightly more than a 12 -ounce bottle of mass produced domestic beer. The beer brewed on the premises will easily overmatch both domestic and imported beers in quality and taste. A claim such as this can be made since the ingredients will be of the highest quality and procured under the direct supervision of the brew - master and the beer will be served as soon as it has completed fermenting, giving the consumer a fresh taste without any preservatives. The bar will also offer a full range of soft drinks, wines, as well as bottled domestic beer with a limited selection of bottled imported alcoholic and non - alcoholic beers. The Operators intend to construct the restaurant /brew -pub at 2920 Newport Boulevard which is the corner of Newport Boulevard and 30th Street between Newport Boulevard and Villa Way in Newport Beach, California (the "Premises "). The Premises is located within the "Cannery Village" area of Newport Beach which is intended to serve as an active pedestrian- oriented specialty retail /restaurant area with a wide range of visitor - serving, neighborhood commercial, and marine - related uses permitted. COMMISSIONERS MINUTES CITY OF NEWPORT BEAf�ary 18.1993 ROLL CALL INDEX 12. That the applicant shall obtain Coastal Commission approval of this application prior to the recordation of the parcel map or issuance of a building permit. 13. That this resubdivision shall expire if the map has not been recorded within 3 years of the date of approval, unless an extension is granted by the Planning Commission. Use Permit No. 3485 (Public hlearine2 Item No. Request to permit the establishment of a combination UP3485 restaurant /brewpub with on -sale beer and wine, on property located in the "Specialty Retail" area of the Cannery Approved Village /McFadden Square Specific Plan Area. The proposal also includes: the establishment of an outdoor patio dining area; the use of 29 previously approved in -lieu parking spaces located in the Cannery Village Municipal Parking Lot; the amendment of a previously approved off -site parking agreement so as to increase the number of privately owned off -site parking spaces to 41 spaces; and the approval of a transfer of development rights from the privately owned off -site parking area to the restaurant site. LOCATION: Parcel 1, Parcel Map 92 -40 (Resubdivision No. 527) (restaurant site); and portions of Lots 17 and 22 and Lots 18 -21, Block 230, Lancaster's Addition (off -site parking lot) located at 2920 Newport Boulevard, on the southeasterly corner of Newport Boulevard (northbound) and 30th Street, in Cannery Village. ZONE: SP -6 APPLICANT: Michael Madlock, Manhattan Beach OWNER: Dorothy Doan, Santa Ana -14- Ll- y r "3 COMMISSIONERS Me MINUTES CITY OF NEWPORT BEAiqpa, 18 1993 Z ROLL CALL INDEX James Hewicker, Planning Director, explained that the applicant is proposing to utilize 29 in -lieu parking spaces that are located in the Cannery Village Municipal Parking Lot for the daytime operation of the subject facility. The subject Municipal Parking Lot is not currently occupied 100 percent 12 months of the year; however, during the summer months it is relatively heavily used by recreational users and by employees at City Hall. The Municipal Parking Lot also has blue parking meters that were formerly located in front of City Hall. The blue meters allow individuals who purchase parking permits to use the parking spaces at less cost than the standard parking meters. If the Commission would approve the applicant to use the 29 in -lieu parking spaces during the day, the Commission would be displacing individuals who are currently using the parking lot. He questioned if the Commission wants to displace recreational users of the subject Municipal parking lot to allow for a new commercial use coming into the City. In response to questions posed by Commissioner Glover, Mr. Hewicker replied that signs would not be placed in the parking lot so as to restrict the 29 parking spaces for the restaurant use only. In reference to her questions regarding Condition No. 6, Exhibit "A ", William Laycock, Current Planning Manager, explained that if the Commission does not allow the applicant to utilize the Municipal Parking Lot spaces prior to 5:00 p.m. then the restaurant would be limited to 1,240 square feet of "net public area" until 5:00 p.m. If the Commission `and the City Council allowed the daytime use of the in -lieu parking spaces for the restaurant facility, a "net public area" of 2,400 square feet would be permitted prior to 5:00 p.m. He indicated that 132 square feet of "net public area" would still have to be closed in the restaurant prior to 5:00 p.m. even if the 29 in -lieu parking spaces would be allowed in the Municipal Parking Lot. The public hearing was opened in connection with this item, and Mr. James Person appeared before the Planning Commission on behalf of the applicant. He concurred with the findings and conditions in Exhibit "A "; however, he requested that Condition No. 7, Exhibit "A" be amended to state that the operational hours -15- (3 Z COMMISSIONERS MINUTES CITY OF NEWPORT BEAfw eruary 18 1993 ROLL CALL INDEX would be between 6:00 a.m. and 12:00 midnight Sunday through Thursday and between 6:00 a.m. and 2:00 a.m. on Friday and Saturday. Mr. Person stated that the applicant would close a portion of the restaurant if the City Council does not approve the daytime use of the in -lieu parking spaces. He indicated that the public is walking and bicycling to many of the establishments and parking has not become a big factor in the area on Sunday afternoons. He explained that he recently observed that the majority of the blue meter parking spaces were being used and only three silver meter spaces were being used in the Cannery Village Municipal Parking Lot. In response to a question posed by Chairman Edwards, Mr. Person explained that parking spaces are not a big problem in the adjacent area during the summer months. Mr. Rob Friedman, co -owner of the property located at 405, 407, and 409 - 30th Street, and a resident at 405 - 30th Street, appeared before the Planning Commission. He expressed his concerns regarding the noise emitting from the outdoor patio area of the facility, and the types of signage on the establishment. Mr. Friedman indicated that there would not be a parking problem as long as the subject facility does not have exclusive rights to parking spaces in the Municipal Parking Lot. In response to a question posed by Commissioner Gifford, Mr. Friedman replied that- he did not know the hours of operation of the commercial establishments on his property. In response to a question posed by Commissioner Pomeroy, Mr. Hewicker explained that the Sign Code permits 200 square feet of signage per frontage of a building, and he stated that the City does not allow blinking or flashing signs. Mr. Friedman and Mr. Hewicker discussed Mr. Friedman's concerns regarding the noise. Mr. Hewicker referred to Condition No. 24, Exhibit "A", stating that the Commission may call up the use permit for review if it is determined that there are changes in the use that are detrimental to the community. -16- y y3 4 MINUTES CITY OF NEWPORT BEACp _.,o ,nni aa. vi ucuy 10, a»✓ ROLL CALL INDEX There being no others desiring to appear and be heard, the public hearing was closed at this time. Motion * Motion was made and voted on to approve Use Permit No. 3485 Ayes * subject to the findings and conditions in Exhibit 'W', and to Absent amend Condition No. 7 as requested. MOTION CARRIED. Findings: 1. That the proposed application is consistent with the Land Use Element of the General Plan, the Local Coastal Program Land Use Plan, and is compatible with surrounding land uses. 2. That adequate parking is available for the proposed use. 3. That the proposed development will not have any significant environmental impact. 4. That the Police Department does not anticipate any problems associated with the proposed restaurant /brewpub. 5. That the transfer of development intensity will accommodate the efficient use of land within an existing development comprised of two interdependent parcels. 6.- That the transfer, of - development intensity will not adversely affect the aesthetics of the area. 7. That the proposed transfer of development intensity will not result in a physical increase in commercial floor area within the subject property and therefore, will not create an abrupt change in scale between the existing development and development in the surrounding area. 8. That the proposed transfer of development intensity will not result in the impairment of public views. -17- -r COMMISSIONERS MINUTES CITY OF NEWPORT BEAQ,a,v 1R. 1993 ROLL CALL INDEX 9. The proposed transfer of development intensity will not result in a net negative impact on the circulation system. 10. That the off -site parking lot is so located as to be useful in connection with the proposed uses on the subject property. 11. Parking on the off -site parking lot will not create undue traffic hazards in the surrounding area. 12. Ownership of the off -site parking lot is constituted by leasehold interest for a remaining period of 59 years by the property owner of the building site. 13. The owner and the City, upon the approval of the City Council, will execute a written instrument, approved as to form and content by the City Attorney, providing for the maintenance of the required off- street parking on the designated property for the duration of the proposed uses on the building site. 14. That the approval of Use Permit No. 3485 will not, under the circumstances of this case, be detrimental to the health, safety, peace, morals, comfort and general welfare of persons residing and working in the neighborhood or be detrimental or injurious to property and improvements in the neighborhood or the general welfare of the City. Conditions: 1. That the proposed development shall be in substantial conformance with the approved site plan, floor plan and elevations, except as noted below. 2. That a covenant or other suitable, legally binding agreement shall be recorded against the off -site parking lot assuring that all of the requirements of Section 20.07.070 J of the Municipal Code, will be met by the current and future property owners. Said covenant or agreement may include provisions for its future termination at such time as 18 5'.41 5 COMMISSIONERS `�d+0o t�,�'clof�'od�v9s c��y�o�ll�`�P'Po 'Poo MINUTES - CITY OF NEWPORT BEAary 18 1993 LOLL CALL INDEX the development on the building site is removed or at such time as the floor area devoted to the restaurant /brewpub reverts back to a Base FAR use. 3. That the applicant shall provided a minimum of one parking space for each 40 square feet of "net public area" in conjunction with the proposed restaurant /brewpub. 4. That an amended off -site parking agreement shall be approved by the City Council, guaranteeing that a minimum of 41 parking spaces shall be provided on property located on Lots 18 -21 and portions of Lots 17 and 22, Block 230, Lancaster's Addition, for the duration of the existing and proposed uses located on Parcel 1, Parcel Map 92 -40 (Resubdivision No. 527). 5. That the property owner shall pay for 29 in- lieu -- parking spaces in the Cannery Village Municipal Parking Lot on an annual basis for the restaurant /brewpub use as agreed upon by the Sales Agreement between the City and the property owner. 6. That the "net public area" of the restaurant /brewpub, which is devoted to daytime use Monday through Friday (prior to 5:00 p.m.) shall be limited to 1,240 sq.ft. unless the applicant obtains the City Council's approval for the daytime use of the in -lieu parking spaces referred to in Condition No. 5. In such case, the "net public area" shall not exceed 2,400 square feet before 5:00 p.m. Monday through Friday. The balance of the "net public area' in either case shall be physically closed off to the public by a fixed barrier and shall not be used until after 5:00 p.m. 7. That the hours of operation for the restaurant /brewpub shall be limited to the hours between 6:00 a.m. and 12:00 midnight Sunday through Thursday and between 6:00 a.m. and 2:00 a.m- on Friday and Saturday. 8. That all employees shall park either in the privately owned -19- v. v� C OMMISSIONERS oo�o, s Pot�P'Qo�o9l0 MINUTES CITY OF NEWPORT BEAPU,,,,,1Q 1001 ROT "ALL INDEX off -site parking area or in one of the Municipal parking lots in the area. 9. That all signs shall conform to the requirements of Chapter 20.06 of the Municipal Code. 10. That the operation of the brewery and the service of alcoholic beverages shall be ancillary to the primary food service operation of the restaurant. 11. That no outdoor loudspeakers or paging system shall be permitted in conjunction with the proposed operation. 12. That a washout area for refuse containers be provided in such a way as to allow direct drainage into the sewer system and not into the Bay or storm drains, unless otherwise approved by the Building Department. 13. That grease interceptors shall be installed on all fixtures in the restaurant facility where grease may be introduced into the drainage systems in accordance with the provisions of the Uniform Plumbing Code, unless otherwise approved by the Building Department. 14. That kitchen exhaust fans shall be designed to control smoke and odor to the satisfaction of the Building Department. 15. That all mechanical equipment and trash areas shall be screened from surrounding public streets and alley and adjoining properties. V►- 16. That the applicant shall obtain Coastal Commission approval of this application prior to the issuance of building permits. 17. That the development standards regarding walls surrounding the restaurant site and underground utilities shall be waived. -20- `1.4 ; COMMISSIONERS O fOLc od�dis MINUTES CITY OF NEWPORT BE"FeRniary 19 . 1993 ROLL CALL INDEX . 18. That all improvements be constructed as required by Ordinance and the Public Works Department. 19. That the on -site parking, vehicular circulation and pedestrian circulation systems be subject to further review by the City Traffic Engineer and that the parking lot be restriped as approved by the Traffic Engineer. 20. That the required number of handicapped parking spaces shall be designated within the on -site parking area and shall be used solely for handicapped self - parking. One handicapped sign on a post and one handicapped sign on the pavement shall be required for each handicapped space. 21. That should any prerecorded music be played within the restaurant facility, such music shall be confined to the interior of the building, and all doors and windows shall be kept closed while such music is played. 22. That arrangements be made with the Public Works Department in order to guarantee satisfactory completion of the public improvements, if it is desired to obtain a Building Permit prior to completion of the public improvements. 23. That a handicap ramp be constructed at the alley intersection at Newport Boulevard per City Standards. 24. That the Planning Commission may add or modify conditions of approval to this use permit, or recommend to the City Council the revocation of this use permit, upon a determination that the operation which is the subject of this use permit causes injury, or is detrimental to the health, safety, peace, morals, comfort, or general welfare of the community. 25. This use permit shall expire unless exercised within 24 months from the date of approval as specified in Section 20.80.090A of the Newport Beach Municipal Code. -21- �( y 8 City Council Meeting March 8. 1993 Agenda Item No. CITY OF NEWPORT BEACH TO: Mayor and Members of the City Council FROM: Planning Department SUBJECT: in Conjunction with a Proposed Restaurant /Brewnu Request to amend an existing off -site parking agreement and expand the daytime use of in -lieu parking spaces in the Cannery Village Municipal Parking Lot beyond the limits established by the sales agreement between the original property owner and the City, so as to allow the establishment of a restaurant/brewpub facility on the adjacent site (Use Permit No. 3485). LOCATION: Parcel 1, Parcel Map 92 -40 (Resubdivision No. 527) (restaurant site); and portions of Lots 17 and 22 and Lots 18 -21, Block 230, Lancaster's Addition (off -site parking lot) located at 2920 Newport Boulevard, on the southeasterly corner of Newport Boulevard (northbound) and 30th Street, in Cannery Village. ZONE: APPLICANT: OWNER: Application SP -6 Dorothy Doan, Santa Ana Same as Applicant This item involves a request to amend an existing off -site parking agreement and expand the daytime use of in -lieu parking spaces in the Cannery Village Municipal Parking Lot beyond the limits established by the sales agreement between the original owner and the City, so as to allow the establishment of a brew /pub on the adjacent site (Use Permit No. 3485). Off -site parking agreement procedures for Cannery Village are set forth in Section 20.63.045 B of the Municipal Code. (_/. q 9 TO: City Council - 2. 44TUM 1. If desired, approve the proposed amendment to the off -site parking agreement related to Use Permit No. 3485 with the applicable findings recommended by the Planning Commission contained in the attached excerpt of the draft Planning Commission minutes dated February 18, 1993. 2. If desired, approve or deny the amendment to the sales agreement between the original owner and the City so as to extend the owners daytime use of in -lieu parking spaces in the Cannery Village Municipal Parking Lot. Background Relative to the Off -Site Parking Agreement At its meeting of February 18, 1993, the Planning Commission approved (6 Ayes, 1 Absent) Use Permit No. 3485 which permits the establishment of a combination restaurant/brewpub on property located at 2920 Newport Boulevard, in the Cannery Village /McFadden Square Specific Plan Area. The establishment of the restaurant /brewpub increases the off - street parking requirement for the subject property. The adjoining off -site parking lot located immediately east of the restaurant /brewpub property will provide additional required parking spaces. Said off -site parking lot is in separate ownership but is under long term lease by the property owner of the subject restaurant/brewpub site. The use of the privately owned off -site parking lot was approved in conjunction with the construction of the original building, and includes the provision of a minimum of 29 parking spaces. Inasmuch as all 41 of the off -site parking spaces will be required as a result of the approval of Use Permit No. 3485, the property owner is required to amend the off -site parking agreement so as to reflect the current number of required parking spaces. Background Relative to In -Lieu Parking Spaces The Planning Commission's approval of Use Permit No. 3485 also includes Condition No. 6 which limits the daytime "net public area" of the restaurant /brewpub to 1,240± square feet (approximately half of the proposed "net public area "), unless the applicant obtains the City Council's approval for the daytime use of the in -lieu parking spaces which were granted to the subject property owner by the City, in conjunction with the City's purchase of the property which is now developed as the Cannery Village Municipal Parking Lot. Under the terms of the sales agreement, Dorothy Doan is granted the option to purchase up to 47 in- lieu parking permits for the Cannery Village Municipal Parking Lot, provided that such parking spaces may be used for the benefit of the uses located on the Pelican Market site (the proposed restaurant /brewpub facility) and the adjoining Cafe Looma Restaurant site, and provided further that such parking may only be used from 5:00 p.m. to 6:00 a.m. The daytime restriction on the use of in -lieu parking spaces was to insure that the Cannery Village Municipal Parking Lot would be available to daytime businesses and visitors to Cannery Village and the beach. '�. 5v 7 TO: City Council :'3. Planning Commission In conjunction with its approval of Use Permit No. 3485, the Planning Commission recommended that the City Council approve the amendment to the off -site parking agreement and to allow the daytime use of the in -lieu parking spaces upon the approval of the City Council. Staff has attached a copy of the Planning Commission staff report and an excerpt of the Draft Planning Commission Minutes dated February 18, 1993 for the City Council's information. Respectfully Submitted, PLANNING DEPARTMENT JAMES D. HEWICKER, Director Planner W. Senior • Attachments for City Council only: Planning Commission Staff Report dated February 18, 1993 with attachments. Excerpt of the Draft Planning Commission Minutes dated February 18, 1993. Site Plan, Floor Plan and Elevations. y. 51 uITY OF NEWPORT BEACH COUNCIL MEMBERS s ROLL C LL March e, Motio All A MINUTES 1993 INDEX ty er isp In: y. 52 � 2. Dolores Otting, Harbor Hill, addressed Gangs /C] the Council, stating that she had hoped Helicopt the State and cities could do something out the gang problem, such as to p vide more trade school opportunities. She also expressed concern about the expe a of the helicopter program in Newpor Beach, and suggested the use of a memor dum of understanding between the Citie of Costa Mesa and Newport Beach to continue the helicopter service. CONSENT CALENDAR. n X The following items were ad, except for yes those items removed: ORDINANCES FOR INTRODUCTION Pass to 2nd reading on March 22, 993 - 2. Removed from the Consent Cale r. RESOLUTIONS FOR ADOPTION 3. Removed from the Consent Calendar. CONTRACTS /AGRKEMENTS 4. Removed from the Consent Cale. 5. UsE PERMIT NO. 3485 - Approve Amendment U P 348: (SS) to existing off -site parking agreement and expand the daytime use of in -lieu parking spaces in the Cannery Village Municipal Parking Lot beyond the limits established by the sales agreement between the original property owner and the City, so as to allow the establishment of a restaurant/brewpub facility on the adjacent site located at 2920 Newport Boulevard and 30th Street. [Report from the Planning Department] 6. CLAIMS - For Denial by the City Manager: (36) California State Department of CA Stat: Transportation regarding claim for Dpt Trat ersonal injuries by Mary Sharon 0 rien, alleging claimant stepped into an rea of a pothole and slipped and fell t corner of Pacific Coast Highway and Me uerite Avenue on May 2, 1992. Laurie A. Doran alleging damage to Doran vehicle as result of hitting pothole and series of roken asphalt at Jamboree and Bristol on anuary 14, 1993. Federal Insuranc Company alleging Federal property damage as result when City Company put high pressure se adjacent to residence, causing L0, 00 gallons of sewage to overflow into home at 1521 Kings Road on December 18, '992. Scott Casey Flanegia alleging is watch Flanegii fell off while being handcu ad by Police Department at 55 and 405 F sways on February 3, 1993; as ing reimbursement. Volume 47 - Page 34 ty er isp In: y. 52 � City Council Mme--Ling September 27, 1993 Item N CITY OF NEWPORT BEACH TO: Mayor and Members of the City Council FROM: Planning Department SUBJECT: Use Periiiit No. 3485 sed Request to revise a previously approved use permit that permitted the establishment of a restaurant /brewpub with on -sale beer and wine and outdoor seating, on property located in the Specialty Retail area of the Cannery Village /McFadden Square Specific Plan. The proposal involves a request to rescind the City Council's previous action that permitted the - expanded use of daytime in -lieu parking spaces in the Cannery Village Municipal Parking Lot which were to be used in conjunction with the daytime operation of the proposed restaurant/brewpub at 2920 Newport Boulevard. The proposal also includes a request to change the daytime parking requirement for the facility from one parking space for each 40 square feet of "net public area," to one parking space for each 50 square feet of "net public area "; and reduce the allowable daytime "net public area" to 1,500 square feet before 5;00 p.m. LOCATION: Parcel 1, Parcel Map 92-40 (Resubdivision No. 527) (restaurant site); and portions of Lots 17 and 22 and Lots 18 -21, Block 230, Lancaster's Addition (off -site parking lot) located at 2920 Newport Boulevard, on the southeasterly corner of Newport Boulevard (northbound) and 30th Street, in Cannery Village. ZONE: SP -6 APPLICANT: Michael Madlock, Manhattan Beach OWNER: Dorothy Doan, Santa Ana Application This is a request to amend a previously approved use permit that permitted the establishment of a restaurant/brewpub with on -sale beer and wine and outdoor seating, on property located in the Specialty Retail area of the Cannery Village /McFadden Square Specific Plan. The approval also included: the use of 27 previously approved in -lieu parking spaces located in the Cannery Village Municipal Parking Lot; the continued use of 29 off - site parking spaces on privately owned property located directly east of the subject property; and the approval of a transfer of development rights from the privately owned off -site parking area to the restaurant site. The proposed amendment involves the following revisions to the use permit so as to make it consistent with the requirements of the y. 53 A& ? TO: City Counci: -2. California Coastal Commission's approval: a request to change the daytime parking requirement for the facility from one parking space for each 40 square feet of "net public area," to one parking space for each 50 square feet of "net public area "; reduce the allowable daytime "net public area" to 1,500 square feet; and rescind that portion of the previous approval which allowed the applicant to use 27 in -lieu parking spaces in the Cannery Village Municipal Parking Lot before 5:00 p.m. Background At its meeting of February 18, 1993, the Planning Commission approved (6 Ayes, 1 Absent) Use Permit No. 3485 which permits the establishment of a combination restaurant /brewpub on property located at 2920 Newport Boulevard, in the Cannery Village /McFadden Square - Specific Plan Area. The Planning Commission also accepted an.amendment to an -existing,. . . off -site parking agreement so as to provide 41 parking spaces within an adjoining privately owned parking lot. Said off -site parking lot is in separate ownership but is under long term lease by the property owner of the subject restaurant /brewpub site. The use of the privately owned off -site parking lot was approved in conjunction with the construction of the original building, and includes the provision of a minimum of 29 parking spaces. Inasmuch as all 41 of the off -site parking spaces will be required as a result of the approval of Use Permit No. 3485, the property owner is required to amend the off -site parking agreement so as to reflect the current number of required parking spaces. The Planning Commission's approval of Use Permit No. 3485 also included Condition No. 6 which limits the daytime "net public area" of the restaurant/brewpub to 1,240± square feet (approximately half of the proposed "net public area "), unless the applicant obtains the City Council's approval for the daytime use of the in -lieu parking spaces which were granted to the subject property owner by the City, in conjunction with the City's purchase of the property which is now developed as the Cannery Village Municipal Parking Lot. Under the terms of the sales agreement, Dorothy Doan (subject property owner) is granted the option to purchase up to 47 in -lieu parking permits for the Cannery Village Municipal Parking Lot, provided that such parking spaces may be used for the benefit of the uses located on the Pelican Market site (the proposed restaurant /brewpub facility) and the adjoining Cafe Looma Restaurant site, and provided further that such parking may only be used from 5:00 p.m. to 6:00 am. The daytime restriction on the use of in -lieu parking spaces was to insure that the Cannery Village Municipal Parking Lot would be available to daytime businesses and visitors to Cannery Village and the beach. Staff has attached a copy of the Planning Commission's staff report for Use Permit No. 3485, dated February 18, 1993. At its meeting of March 8, 1993, the City Council unanimously approved an amendment to the sales agreement between Dorothy Doan and the City, so as to allow her the daytime use of the in -lieu parking spaces in the Cannery Village Municipal Parking Lot. The Council also approved the amended off -site parking agreement for the privately owned parking spaces located directly adjacent to the restaurant /brewpub site. In accordance with the City Council's original approval, the proposed restaurant/brewpub was allowed to have 2,400 square feet of daytime "net public area" with the provision of 31 privately owned parking Ll. 5y TO: City Counm -3. spaces and 29 in -lieu spaces in the Cannery Village Municipal Parking Lot, for a total of 60 off- street parking spaces. The allowable daytime "net public area" was based on a parking formula of one parking space for each 40 square feet of "net public area" (60 parking spaces. x 40 sq.ft. = 2,400 sq.ft. of "net public area "). Coastal Commission-Action for Use Permit No. 3485 At its meeting of July 13 -16, 1993, the Coastal Commission approved Use Permit No. 3485 (Coastal Permit Application No. 5 -93 -137, copy attached). However, said approval did not allow the daytime use of the in -lieu parking spaces in the Cannery Village Municipal Parking Lot; therefore, the available daytime parking spaces for the subject project is only 31 spaces. Based on the available parking, the Coastal Commission limited the daytime "net - Tublic area' of the restaurant/brewpub -to 1,500 square feet which is equivalent to approximately one parking space for each 50 square feet of "net public area." The Coastal Commission also required: that the applicant record a deed restriction which will provide that no more than 1,500 square feet of service area shall be open before 5:00 p.m.; that the City Council rescind its previous action amending the sales agreement with Dorothy Doan so as to permit the daytime use of in -lieu parking spaces in the Cannery Village Municipal Parking Lot; and that the City of Newport Beach prepare a letter indicating that it agrees that the City's Code Enforcement Office will enforce the daytime public service area restriction of 1,500 square feet. Suggested Action and Comment Hold hearing; close hearing; if desired, approve Use Permit No. 3485 (Revised) with the findings and subject to the conditions of approval set forth in the attached Exhibit "A." Said action will: rescind the City Council's previous action that permitted the daytime use of 47 in -lieu parking spaces in the Cannery Village Municipal Parking Lot; reduce the allowable daytime "net public area" to 1,500 square feet; and revise the daytime parking requirement for the restaurant /brewpub to one parking space for each 50 square feet of "net public area." Staff has no objections to the requested revisions to Use Permit No. 3485 inasmuch as said revisions will result in a project that will have a less intensive daytime operation than was previously approved by the City Council. Respectively submitted, PLANNING DEPARTMENT JAMES D. HEWICKER, Director •i1��'....nl� /. Ill.h Senior Planner q -rj5 "L' TO: City Counc,. 4. Attachment: Exhibit "A" Vicinity Map Copy of the Planning Commission Staff Report dated February 18, 1993 with attachments Excerpt of the Planning Commission Minutes dated February 18, 1993 Coastal Commission Staff Report Site Plan Revised Floor Plan y . S� TO: City Councii -5. EXHIBIT "A' FINDINGS AND CONDITIONS OF APPROVAL FOR USE PERNUT NO. 3485 (REVISED) Findknp-s: 1. That the proposed application is consistent with the Land Use Element of the General Plan, the Local Coastal Program Land Use Plan, and is compatible with surrounding land uses. 2. That the approval of Use Permit No. 3485 (Revised) is necessary in order to make the City of Newport Beach's approval of the subject project consistent with the conditions of approval established by the California Coastal Commission. 3. That the approval of Use Permit No. 3485 (Revised) will allow the City of Newport Beach to monitor and thereby insure that the continued operation of the proposed restaurant/brewpub will be in accordance with the provisions of the approved coastal permit. 4. That adequate parking is available for the proposed use. 5. That the proposed development will not have any significant environmental impact. 6. That the Police Department does not anticipate any problems associated with the proposed restaurant/brewpub. 7. That the transfer of development intensity will accommodate the efficient use of land within an existing development comprised of two interdependent parcels. 8. That the transfer of development intensity will not adversely affect the aesthetics of the area. 9. That the proposed transfer of development intensity will not result in a physical increase in commercial floor area within the subject property and therefore, will not create an abrupt change in scale between the existing development and development in the surrounding area. 10. That the proposed transfer of development intensity will not result in the impairment of public views. 11. The proposed transfer of development intensity will not result in a net negative impact on the circulation system, 12. That the "off -site parking lot is so located as to be useful in connection with the proposed uses on the subject property. q-57 TO: City Counci, -6. 13. Parking on the off -site parking lot will not create undue traffic hazards in the surrounding area. 14. Ownership of the off -site parking lot is constituted by leasehold interest for a remaining period of 59 years by the property owner of the building site. 15. The owner and the City, upon the approval of the City Council, will execute a written instrument, approved as to form and content by the City Attorney, providing for the maintenance of the required off- street parking on the designated property for the duration of the proposed uses on the building site. 16. That the approval of Use Permit No. 3485 (Revised) will not, under the circumstances of this case, be detrimental to the health, safety, peace, morals, -.. comfort and general welfare of persons residing and working in the neighborhood or be detrimental or injurious to property and improvements in the neighborhood or the general welfare of the City. Conditions: 1. That the proposed development shall be in substantial conformance with the approved site plan, floor plan and elevations, except as noted below. 2. That a covenant or other suitable, legally binding agreement shall be recorded against the off -site parking lot assuring that all of the requirements of Section 20.07.070 J of the Municipal Code, will be met by the current and future property owners. Said covenant or agreement may include provisions for its future termination at such time as the development on the building site is removed or at such time as the floor area devoted to the restaurant/brewpub reverts back to a Base FAR use. 3. That the applicant shall provided a minimum of one parking space for each 50 square feet of "net public area" before 5:00 p.m. and one parking space for each 40 square feet of "net public area" after 5:00 p.m. in conjunction with the proposed restaurant /brewpub. 4. That an amended off -site parking agreement shall be approved by the City Council, guaranteeing that a minimum of 41 parking spaces shall be provided on property located on Lots 18 -21 and portions of Lots 17 and 22, Block 230, Lancaster's Addition, for the duration of the existing and proposed uses located on Parcel 1, Parcel Map 92-40 (Resubdivision No. 527). 5. That the property owner shall pay for 29 in -lieu parking spaces in the Cannery Village Municipal Parking Lot on an annual basis for the nighttime operation (after 5:00 p.m.) of the restaurant/brewpub use as agreed upon by the Sales Agreement between the City and the property owner. I/. 5,Y 1 LA TO: City Councu -7. 6. That the "net public area" of the restaurant/brewpub, which is devoted to daytime use Monday through Friday (prior to 5:00 p.m.) shall be limited to 1,500 sq.ft. The balance of the "net public area" shall be physically closed off to the public by a fixed barrier and shall not be used until after 5:00 p.m. daily. 7. That the hours of operation for the restaurant /brewpub shall be limited to the hours between 6:00 a.m. and 11:00 p.m. Sunday through Thursday and between 6:00 a.m. and 2:00 a.m. on Friday and Saturday. 8. That all employees shall park either in the privately owned off -site parking area or in one of the Municipal parking lots in the area. 9. That all signs shall conform to the requirements of Chapter 20.06 of the Municipal Code. 10. That the operation of the brewery and the service of alcoholic beverages shall be ancillary to the primary food service operation of the restaurant. 11. That no outdoor loudspeakers or paging system shall be permitted in conjunction with the proposed operation. 12. That a washout area for refuse containers be provided in such a way as to allow direct drainage into the sewer system and not into the Bay or storm drains, unless otherwise approved by the Building Department. 13. That grease interceptors shall be installed on all fixtures in the restaurant facility where grease may be introduced into the drainage systems in accordance with the provisions of the Uniform Plumbing Code, unless otherwise approved by the Building Department. 14. That kitchen exhaust fans shall be designed to control smoke and odor to the satisfaction of the Building Department. 15. That all mechanical equipment and trash areas shall be screened from surrounding public streets and alley and adjoining properties. 16. That the development standards regarding walls surrounding the restaurant site and underground utilities shall be waived. 18. That all improvements be constructed as required by Ordinance and the Public Works Department. 19. That the on -site parking, vehicular circulation and pedestrian circulation systems be subject to further review by the City Traffic Engineer and that the parking lot be restriped as approved by the Traffic Engineer. 9.59 TO: City Council -8. 20. That the required number of handicapped parking spaces shall be designated within the on -site parking area and shall be used solely for handicapped self - parking. One handicapped sign on a post and one handicapped sign on the pavement shall be required for each handicapped space. 21. That should any prerecorded music be played within the restaurant facility, such music shall be confined to the interior of the building, and all doors and windows shall be kept closed while such music is played. 22. That arrangements be made with the Public Works Department in order to guarantee satisfactory completion of the public improvements, if it is desired to obtain a Building Permit prior to completion of the public improvements. 23. That a handicap ramp be constructed at the alley intersection at Newport Boulevard per City Standards. 24. That the Planning Commission may add or modify conditions of approval to this use permit, or recommend to the City Council the revocation of this use permit, upon a determination that the operation which is the subject of this use permit causes injury, or is detrimental to the health, safety, peace, morals, comfort, or general welfare of the community. 25. This use permit shall expire unless exercised within 24 months from the date of approval as specified in Section 20.80.090A of the Newport Beach Municipal Code. t4. (v COUNCIL MEMBERS ROLL CfiLL Motioi All A; CITY OF NEWPORT BEACH MINUTES September 27, 1993 INDEX U/P 3485(R) Measure A to modify the approval, subject to four conditions: 1) that the applicant record a deed restriction which would allow no more than 1500 square feet of service area being used prior to 5 p.m.; 2) that 41 off -site parking spaces will be maintained between 6 a.m. and 5 p.m. daily and 67 off -site parking spaces between 5 p.m. and 2 a.m., (the 41 off - site parking spaces between 6 a.m. and 5 p.m. are on privately owned property under the same ownership immediately adjacent to the brempub and the additional spaces would be in the Municipal lot and would be used after 5 p.m.); 3) that the City Council rescind its earlier action allowing the use of the off -site parking spaces in the Municipal lot prior to 5 p.m.; 4) that the City will agree to enforce the restrictions on the area of service (the 1500 square feet being used prior .ta.5 P.M.). James Person, representing the applicant, addressed the Council and stated they feel this is a reduction of intensity in use from the time it was approved by the City Council last March; however, they do agree to the conditions of approval as imposed by both the City and the Coastal Commission. Hearing no one else wishing to address the Council, the public hearing was closed. X — Motion van made to by Council Member Debaz to awrove Use Permit No. 3485 o, es (Revise d with the findings an smbject t t i 1 1 t form in the attached Exhibit "A." TENS REMOVED FROM TBE CONSENT CALENDAR None. PUBLIC NTS The ollowing persons addressed the Counci and expressed their reasons for opposin Measure A on the November ballot - oposed Open Space Assessment District: Stuart Willia\Kings 748 Bayport Way Helen KS eron, Fourth Avenue Tom and Mike Bull an, 121 Marine Avenue Mary Ann Towy, 501 Kings Place, member of the ort onservancy Board of Directors, esse the Council to pr omote the on t Wild Side" event which cheduled or Sunday, October 10 angins at th Castaways site at 16th St and Dover anus and concludes at ame site for sunset picnic and otttractions for blic enjoyment. tration forms are available at libraries and at he Parks, Beaches creation Departmen Volume 47 - Page 254 INDEX U/P 3485(R) Measure A r-chibit No. 3 q: z • • 0 B LAN K • n U y. G3 STATE OF CALIFORNIA —THE RESOURCES AGENCY PETE WILSON, Co r F CALIFORNIA COASTAL COMMISSION SOUTH COAST AREA Page 1 of 3 245 W. BROADWAY, STE. 380 Date: 1 -21 -94 P.O. Box 1450 Permit No. 5 -93 -137 LONG BEACH, CA 90802.416 (310) 5965071 COASTAL }a1EOWPMENr PERWr_ On July 15, 1993 the California Coastal Commission granted to The DQSn Trust this permit subject to the attached Standard and Special conditions, for development consisting of: Conversion of an existing 4200 square foot former market /deli (currently vacant) to a restaurant/brew pub and the addition of 600 square feet of outdoor dining. Existing 3100 square foot, second floor office will remain. more specifically described in the application file in the Commission offices. The development is within the coastal zone in Orange County at 2420 Newport Blvd., Newport Beach Issued on behalf of the California Coastal Commission by PETER DOUGLAS Executive Director By: Le 2e , - Title: Staff Analyst The undersigned permittee acknowledges receipt of this permit and agrees to abide by all terms and conditions thereof. The undersigned permittee acknowledges that Government Code Section 818.4 which states in pertinent part, that: "A public entity is not liable for injury caused by the issuance... of any permit..." applies to the issuance of this permit. IMPORTANT: THIS PERMIT IS NOT VALID UNLESS AND UNTIL A COPY OF THE PERMIT • WITH THE SIGNED ACKNOWLEDGEMENT HAS BEEN RETURNED TO THE COMMISSION OFFICE. 14 Cal. Admin. Code Section 13158(a). Date Signature of Permittee A6: 4/88 14 G� I- Page 2 of _3_ • Permit No. 5 -93 -137 Notice of Receipt and Acknowledgment. The permit is not valid and development shall not commence until a copy of the permit, signed by the permittee or authorized agent, acknowledging receipt of the permit and acceptance of the terms and conditions, is returned to the Commission office. 2. ExpiL to ion. If development has not commenced, the permit will expire two years from the date on which the Commission voted on the application. Development shall be pursued in a diligent manner and completed in a reasonable period of time. Application for extension of the permit must be made prior to the expiration date. 3. Cgmpliance. All development must occur in strict compliance with the proposal as set forth in the application for permit, subject to any special conditions set forth below. Any deviation from the approved plans must be reviewed and approved by the staff and may require Commission approval. 4. Interpretation. Any questions of intent or interpretation of any condition will be resolved by the Executive Director or the Commission. 5. Inspections. The Commission staff shall be allowed to inspect the site and the project during its development, subject to 24 —hour advance notice. 6. Assignment. The permit may be assigned to any qualified person, provided assignee files . with the Commission an affidavit accepting all terms and conditions of the permit. Terms and Conditions Run with the Land. These terms and conditions shall be perpetual, and it is the intention of the Commission and the permittee to bind all future owners and possessors of the subject property to the terms and conditions. P� Prior to issuance of the Coastal Development Permit, the applicant shall execute and record a deed restriction, in a from and content acceptable to the Executive director, which shall provide that no more than 1,500 square feet of service area of the subject restaurant/brewpub shall be open before 5 p.m. The document shall run with the land, binding all successors and assigns, and shall be recorded free of prior liens. 11 q.&5 i Page 3 5 -93 -137 2. 'Main The proposed project includes the use of Off —Site parking for which the applicant has entered into long —term parking agreements. Prior to issuance of the Coastal Development Permit, the applicant shall execute and record a deed restriction, in a form and content acceptable to the Executive Director, which shall provide that the applicant shall maintain, for the life of the development, a total of 41 off —site parking spaces between 6:00 a.m. and 5:00 p.m. daily, and a total of 67 off —site parking spaces between 5:00 p.m. 2:00 a.m. daily. 3. Recission of Amendment to Parking Agreement: Prior to issuance of the Coastal Development Permit, the applicant shall submit evidence that the Amendment to Parking Agreement approved by the City of Neworport Beach on February 18, 1993, has been rescinded by the City Council. Additionally, prior to issuance of the Coastal Development Permit, the applicant shall submit, for the review and approval of the Executive Director, a letter from the City of Newport Beach indicating that the City agrees that the City's Code Enforcement will enforce the puobliF service area restrictions described in ecial Condition 1. Prior to issuance of the Coastal Development Permit, the applicant shall submit, for the review and approval of the Executive Director, final floor plans illustrating the area proposed for the day use restriction imposed in special conditional, above. 1033F MV /]m • y.(aG - STATE OF CALIFORNIA -THE RESOURCES AGENCY CALIFORNIA COASTAL COMMISSION { STH COAST AREA 0W. !ROADWAY, STE. 380 Box 1450 0-M-0 REACH, CA VIM-4416 (310) !40.7071 Filed: 4/19/93 49th Day: 6/7/93 180th Day: 10/16/93 Staff: MV —L Staff Report: 8/16/ 3 Hearing Date: 9/16/93 Comm. Action on Findings: STAFF REPORT: REVISED FINDINGS APPLICATION NO.: 5- 93- 137' APPLICANT: The Doan Trust AGENT: Nancy Lucast PROJECT LOCATION: 2920 Newport Blvd., Newport Beach, Orange County. PETE WILSON, PROJECT DESCRIPTION: Conversion of an existing 4200 square foot former market /deli (currently vacant) to a restaurant /brew pub and the addition of 600 square feet of outdoor dining. Existing 3100 square foot, second floor office will remain. COMMISSION ACTION: Approval with Conditions. DATE OF COMMISSION ACTION: July 15, 1993 • COMMISSIONERS ON PREVAILING SIDE: Commissioners Wright, Yokoyama, Calcagno, Cervantes, Doo, Stevens, Moulton— Patterson, Malcolm, Neely, and Chairman Gwyn. SUMMARY OF STAFF RECOMMENDATION: The staff recommends that the Commission adopt the following revised findings in support of the Commission's action on July 15, 1993 approving with conditions the permit for a restaurant /brewpub. STAFF RECOMMENDATION: The staff recommends that the Commission adopt the following resolution: I. Approval with Conditions. The Commission hereby rg ants a permit, subject to the conditions below, for the proposed development on the grounds that the development will be in conformity with the provisions of Chapter 3 of the California Coastal Act of 1976, will not prejudice the ability of the local government having jurisdiction over the area to prepare a Local Coastal Program conforming to the provisions of Chapter 3 of the Coastal Act, and will not have any significant adverse impacts on the environment within the meaning of the California Environmental Quality Act. 0 y, �7 5 -g3 -137 Revised findings Page 2 I1. Standard 6onditions. 1. Notice of Receipt and Acknowledgment. The permit is not valid and development shall not commence until a copy of the permit, signed by the permittee or authorized agent, acknowledging receipt of the permit and acceptance of the terms and conditions, is returned to the Commission office. 2. Expiration. If development has not commenced, the permit will expire two years from the date this permit is reported to the Commission. Development shall be pursued in a diligent manner and completed in a reasonable period of time. Application for extension of the permit must be made prior to the expiration date. 3. Compliance. All development must occur in strict compliance with the proposal as set forth in the application for permit, subject to any special conditions set forth below. Any deviation from the approved plans must be reviewed and approved by the staff and may require Commission approval. 4. Interpretation. Any questions of intent or interpretation of any condition will be resolved by the Executive Director or the Commission. 5. Inspections. The Commission staff shall be allowed to inspect the site and the project during its development, subject to 24 -hour advance notice. 6. Assignment. The permit may be assigned to any qualified person, provided assignee files with the Commission an affidavit accepting all terms and conditions of the permit. 7. Terms and Conditions Run with the Land. These terms and conditions shall be perpetual, and it is the intention of the Commission and the permittee to bind all future owners and possessors of the subject property to the terms and conditions. III. Special. Conditions: Deed Restriction Limiting Daytime Use Prior to issuance of the coastal development permit, the applicant shall execute and record a deed restriction, in a form and content acceptable to the Executive Director, which shall provide that no more than 1,500 square feet of service area of the subject restaurant /brewpub shall be open before 5 p.m. The document shall run with the Tand, binding all successors and assigns, and shall be recorded free of prior liens and encumbrances which the Executive Director determines to affect said interest.. 2. Maintenance of Off -Site Parking The proposed project includes the use of off -site parking for which the applicant has entered into long -term parking agreements. Prior to issuance of the coastal development permit, the applicant shall execute and record a deed restriction, in a form and content acceptable to the Executive Director, which shall provide that the applicant shall maintain, for the life of the development, a total of 41 off -site parking spaces between 6:00 a.m. and 5:00 p.m. daily, and a total of 67 off -site parking spaces between 5:00 p.m. and 2:00 a.m. daily. The document shall run with the land, binding all successors and assigns, and shall be recorded free of prior liens and encumbrances which the Executive Director determines to affect said interest. \_J 0 v. 6e 5 -93 -137 Revised Findings Page 3 • 3. Recision of'Amendment to Parking Agreement Prior to issuance of the coastal development permit, the applicant shall submit evidence that the Amendment to Parking Agreement approved by the City of Newport Beach on February 18, 1993, has been rescinded by the City Council. Additionally, prior to issuance of the coastal development permit, the applicant shall submit, for the review and approval of the Executive Director, a letter from the City of Newport Beach indicating that the City agrees that the City's Code Enforcement Department will enforce the public service area restrictions described in special condition 1. 4. Submittal of Final Plans Prior to issuance of the coastal development permit, the applicant shall submit, for the review and approval of the Executive Director, final floor plans illustrating the area proposed for the day use restriction imposed in special condition 1, above. IV. FINDINGS AND DECLARATIONS The Commission finds and declares as follows: A. Project Description The applicant proposes to convert an existing 4200 square foot former • market /deli (currently vacant) into a restaurant /brew pub and to add 600 square feet of outdoor dining. The existing 3100 square foot, second floor office space will remain. The public service area of the proposed restaurant will be 2800 square feet including the proposed outdoor patio dining area. The applicant proposes 72 parking spaces, 29 of which are located in a public parking.lot. The subject site is located in the Cannery Village /McFadden Square area of the Balboa Peninsula in Newport Beach. The land use designation of the subject site is Retail and Service Commercial. The proposed restaurant use is consistent with that designation. B. Public Access /Parking Section 30210 of the Coastal Act requires maximum access and recreation be provided for the general public. Section 30252 of the Coastal Act states, in part: The location and amount of new development should maintain and enhance public access to the coast by (4) providing adequate parking facilities or providing substitute means of serving the development with public transportation. The subject site is located in an area that is historically popular with the beach going public. In addition to miles of wide sandy beach, the Balboa • Peninsula contains many restaurants and visitor serving retail areas as well as the two piers and the fun zone. Because of the area's popularity with the general public it often reaches peak capacity during prime visitor periods. 5 -93 -137 Revised Findings Page 4 The area within the existing building proposed for restaurant use is currently vacant. The former use was a market /deli. The proposed development represents an intensification of use, triggering the need to evaluate parking. When development does not provide adequate parking, patrons of that development are forced to use parking that is available to the general public. This results in patrons of private uses competing with beach goers for available public parking spaces and reduced parking supply for access and recreational uses. Lack of public parking can deter the public from using certain beach areas and other visitor amenities. The Balboa Peninsula, particularly in the McFadden Square area, includes many pre — Coastal Act buildings which were constructed without adequate parking. That adds to the general parking shortage in the area. Consequently, it is important that all new development provide adequate parking so as not to displace public beach goer and visitor parking. The Commission has adopted regional guidelines that provide guidance when determining the parking need for various uses. In past actions the Commission has consistently applied the parking ratios described in the regional guidelines for new development in the Balboa Peninsula area. For restaurant use the guidelines recommend a ratio of one parking space for every fifty square feet of public service area. For general office use, the-Commission's guidelines recommend a ratio of one space for every 250 square feet of gross floor area. The City of Newport Beach zoning requirements for parking, in this case, are consistent (for office uses) or more restrictive (for restaurant use: one space for every forty square feet of public service area). Both the City and the Commission apply a similar formula for determining parking demand in the subject area. This indicates that the ratio is appropriate in defining specific parking needs for this area. The City's certified Land Use Plan requires that all new development shall provide adequate off street parking to meet the requirements of the City's zoning code. In this case the City has found that the amount of parking provided, including the use of existing spaces within a public parking lot, meets the zoning code requirements. However, Coastal Act Section 30252 requires that new development provide adequate parking in a manner which maintains and enhances coastal access. In this case because the project proposes to use existing spaces within a public parking lot during peak visitor use periods, the Commission cannot find that adequate parking will be provided. Where there is no certified total Local Coastal Program, the Commission must find a proposed project consistent with the chapter three policies of the Coastal Act. The certified Land Use Plan, when there is a conflict, serves as guidance only. Based on the above guidelines ratio, the parking demand generated by the proposed project is 56 spaces. In addition, the existing office space on the second floor generates a demand of 13 spaces, creating a total demand of 69 spaces. There are two spaces on —site. Additionally the applicant has a long —term lease for the use of 41 spaces in an adjacent private parking lot. The applicant proposes to provide a total of 72 parking spaces. However, of that number, 29 are to be acquired through a lease agreement with the City to use a parking lot that is currently available to the public. Without the public parking lot spaces, the proposed project would be deficient by 26 spaces, a significant shortfall. 4.70 5 -93 -137 Revised Findings Page 5 . Coastal Development Permit No. 5 -88 -252 (City of Newport Beach) allowed construction of the public parking lot in question. In approving that development, the Executive'Director determined that parking was a severe problem in the area and that the parking lot would provide 45 additional public parking spaces to be used for visitor serving uses and businesses. The current applicant sold the area now containing the public parking lot to the City in 1988. As part of the sale agreement, the current applicant retained the right to use as many as all of the.spaces provided that, among other requirements, the private use be restricted to night time (5 p.m. to 6 a.m.) use. For the use of these spaces the applicant is required to pay the City a $500.00 per space annual fee. On August 9, 1989 the Commission concurred with the Executive Director's determination to approve Coastal Development Permit No. 5 -89 -512 (Doan) allowing construction of a 2375 square foot restaurant at 2900 Newport Blvd. Under that approval, the restaurant was allowed to use 18 in —lieu spaces in the same public parking lot now proposed for the same use. However in that case the public parking spaces were available for the private development only after 5 p.m. Beach and visitor parking demand generally drops after 5 p.m. The operating hours of the proposed restaurant will be 6 a.m. to 11 p.m. Sunday through Thursday and 6 a.m. to 2 a.m. Friday and Saturday. These operating hours result in parking demand that will conflict with prime beac.h and visitor use (i.e. daytime hours), a situation that did not occur under the project approved under 5 -89 -512 for the same applicant. In this case, the • conflict results in inadequate parking for the proposed project prior to 5 p.m. The applicant has an agreement with the City allowing the use of the public parking lot for the existing commercial building between the hours of 5:00 p.m. to 6:00 a.m. However, under the current proposal the daytime restriction would be removed and parking for the proposed restaurant in the public parking lot would be allowed during daytime hours. The end result would be that the applicant may use all 45 spaces of the public lot from 5 p.m. to 6 a.m. and 29 or 64% of the spaces during the day. The City staff's report to the Planning Commission for action on the Amendment to an Off —Site Parkina Agreement and February 18, 1993, s "The daytime restriction on the use of in —lieu parking spaces was to insure that the Cannery Village Municipal Parking Lot would be available to daytime businesses and visitors to Cannery Village and the beach.' Minutes from the Planning Commission hearing (February 18, 1993) on the Use Permit for the proposed project quote City staff as follows: "The subject Municipal Parking Lot is not currently occupied 100 percent 12 months of the year; however, during the summer months it is relatively heavily used by recreational users and by employees at City Hall." At the February 18, 1993 Planning Comm ission meeting, City staff questioned • the appropriateness of displacing recreational users of the Municipal parking lot to allow for a new commercial use. The City's certified Land Use Plan states that the Balboa Peninsula experiences significant summer visitor traffic. The certified LUP also states: 4.7/ �Y 5 -93 -137 Revised Findings Page 6 There is also a difference in the peak -hour traffic for weekdays between . winter and summer. A comparison of peak -hour traffic shows that it is most heavily affected on routes serving Balboa Peninsula during the summer. Usually, daily peak -hour traffic occurs between 5:00.p.m. and 6:00 p.m. At several locations during the summer, primarily in the Balboa Peninsula area, the peak hour occurs at midday, either between noon and 1:00 p.m. or between 1:00 p.m. and 2:00 p.m. The LUP further states: Parking is a major issue in the Newport Beach Coastal Zone. Observations indicate that the current supply is generally adequate in the winter for both residents and visitors. During the summer the demand for parking increases. On peak weekends during the summer, parking demand is highest in the beach areas. The LUP also includes the City's policy to provide the greatest number of on- street parking spaces possible. it can be inferred that the City's intent is to provide the greatest number of public (not just on- street) parking spaces possible. Clearly the need for the provision of adequate parking with new development is an issue in the City and particularly on the Balboa Peninsula. As proposed, the project would result in the loss of 29 parking spaces currently available to the public in an area where parking demand for visitor uses and beach access is great. Without the use of the spaces available in • the public lot, the subject site is deficient 26 parking spaces. Use of a public parking lot to serve private development would result in a direct loss of parking to the beach going public. Allowing the development to go forward as proposed with such a significant shortfall of parking spaces would also result in loss of parking for the beach going public. The loss would result from patrons of the proposed development seeking public spaces when the other parking associated with the new development is at capacity. However, if the project is conditioned to limit the public service area of the restaurant to no more than 1500 square feet prior to 5 p.m., the restaurant's need for the public parking spaces during peak beach and visitor use periods would be eliminated. With the public service area limited to 1500 square feet prior to 5 p.m., the parking demand of the proposed restaurant /brewpub would be lessened to 30 spaces. Additionally, the existing second floor office space will require 13 parking spaces, creating a total demand of 43 spaces. Without the use of the public parking 'lot, 43 parking spaces are provided. When Coastal Development Permit No. 5 -89 -512 (Doan) was approved, the Executive Director determined that because the public parking lot was not necessary to serve the development before 5 p.m., adequate parking was provided. The special condition required in the subject application is consistent with that past action. To assure that the public area limitation prior to 5 p.m. is enforced for the life of the proposed project, the hours limitation must be recorded as a deed restriction. A second special condition is required to assure that the development will maintain off -site parking arrangements for the life of the development since only 2 parking spaces are provided on -site. y. �Z 51 5 -93 -137 Revised findings Page 7 • Additionally, to assure that the service area restriction is enforced, a special condition requiring evidence that the City Council has rescinded the Amendment to Parking Agreement which was approved February 18, 1993, must be submitted to the Executive Director. The Amendment to Parking Agreement allowed the daytime use of the public parking lot to serve the private development. Once rescinded, the applicant would not be allowed use of the public parking spaces prior to 5 p.m. Additionally, to assure that the restricted restaurant public area is enforced, thereby maintaining the lessened parking demand, the applicant must submit evidence that the City's Code Enforcement Department will enforce the public area restriction. The City's Code Enforcement Department regularly enforces similar restrictions imposed by the City. Therefore, the Commission finds, that as conditioned the project is consistent with Sections 30210 and 30252 of the Coastal Act regarding public access and recreation and the provision of adequate parking with new development. C. local Coastal Program Section 30604(a) of the Coastal Act provides that the Commission shall issue a Coastal Development Permit only if the project will not prejudice the ability of the local government having jurisdiction to prepare a Local Coastal Program which conforms with the Chapter 3 policies of the Coastal Act. The Newport Beach Land Use Plan was certified on May 19, 1982. As conditioned • to restrict the public service area until after 5 p.m., approval of the proposed development will not prejudice the City's ability to prepare a local Coastal Program Implementation Plan for Newport Beach that is consistent with the Chapter 3 policies of the Coastal Act as required by section 30604(a). D. California Environmental Ouality Act Section 13096(a) of the Commission's administrative regulations requires Commission approval of a Coastal Development Permit application to be supported by a finding showing the application to be consistent with any applicable requirements of the California Environmental Quality Act (CEQA). The proposed project is in an existing urbanized area with adequate services and utilities provided and so will not cause significant adverse impacts on the environment. Additionally, as conditioned, the proposed project will provide adequate parking and so will not interfere with public access in the area. Therefore, the Commission finds that, as conditioned, the project is consistent with the requirements of the Coastal Act to conform to CEQA. 9326E " Ni1CINITY MAP � J � 't 1 ° • o t 't t 0 ',t L «t' 'ti o - e K` ria • 71+r '+ ti ►t \ Vl � IL � t 6 •as • + Q ,•. 7 + ~/I 9 •f •+ �qt` 07M T L `i ii _ dt e y e P.c ` NE WP DR T BA N Jet M.aP MD. ) DISTRICTING MAP NEWPORT BEACH — CALIFORNIA USIKK SVWMVkk w Nr • LN+wrwiu rwllw m"" u9ng" ++►L,l 190090M M w7al�wt wwTL w nxs ftwx %awn L -1 wTw wp ma W Doom* moc+ wcwwrlw r+r ■o. rd Pa n f d % Tqw : we w.r ca J17E nRoM IT NO,, 34Q5 uxk,�-b; -I- 5 -43- l37 7 • • a + 1v V 1 l� Y /IP~I /11l�RI. mom".V�I! ICA I.I. APPM /�N lam( MMN�t MIJ► MI.�$�QS� p 11 N. F' 1� it V 0 X10 �I MI�IY u O O u � L D ��4 o Mai • .o w ` W v v L7 I I v' • M wmw wMa� Mb Irk MMtiN.It N/1 { /mll� =1i J ec�lre® � . l wmw wMa� Mb Irk MMtiN.It N/1 { /mll� =1i J ec�lre® � 0 Newport Beach Brewing Company, Inc. "(the Operators) ", is a California Corporation formed to construct and operate a restaurant /brew -pub to be called Newport Beach Brewing Company, which will be located at 2920 Newport Boulevard in Newport Reach, California. The restaurant will be open from 6:00 a.m. to 11:00 p.m., five days a week and 6:00 a.m. to 2:00 a.m., Friday and Saturday. There will be no live entertainment. The exterior of the restaurant /brew -pub will offer a person passing -by the 'old world" ambiance of a fun and energetic eating and drinking establishment. This highly desirable Cap Cod designed building is highlighted with a random pattern brick front, shingle roof, gables, window walk, and painted wood trim. The focal point of the restaurant /brew -pub will be the custom made copper accented stainless steel beer brewing equipment that will be placed behind the bar and will rise to the ceiling of the building. These brewing tanks and storage vats will be cleaned and polished daily to keep their luster and appeal. The Operators of the restaurant /brew -pub are working carefully with their experienced architect and design team to select a theme that will create a warm, yet vibrant environment for patrons to enjoy. An emphasis for the interior of the restaurant will be comfortable stained hard -wood and brick that offer a rustic old world charm and ambiance. The bar is expected to be stained and shined dark hardwood and Cooper with a brass foot rail that will give- the immediate area an "upper- class" feel. There will be bountiful seating at the bar and on bar stools directly across from the bar. There will be seating at tables throughout the remainder of the restaurant, as well as on the patio. The walls will be brick and decorated with memorabilia from the brewing industry with particular emphasis on California pre - prohibition breweries, early Newport Beach and brew -pubs and micro - brewers currently operating in California and the Pacific Northwest. The restaurant's menu will feature classic, as well as, up- to -date cuisine that will appeal to the modern palate. Appetizers will include buffalo wings, beer battered fried onion rings, and "Armadillo eggs" (stuffed jalapeno peppers). A visible custom brick wood fired pizza oven will be the focal point as a number of Individual gourmet wood fired pizzas will be served. Newport Beach's "finest" fresh ground burger will also head the entrees with other choices including a "naked" chicken breast sandwich, and a selected number of pasta dishes. A wide variety of salads will be offered either before a meal or as a meal themselves and "World F?a%,c f-+ E, 5 =93 7/317 9-75 Championship "'homemade chili will be served in a similar manner. There will also be an assortment of fresh baked desserts available to patrons of the establishment. The restaurant /brew -pub Sntends to offer a full service wine and beer bar with the emphasis on premium beer that will be brewed on the premises. There will usually be four to six beers available that were brewed on site. The range of beers will include ales, pilaners, lagers and stouts. The brewelry will produce approximately- 16 varieties of beer each year, including such special seasonal flavors as Octoberfest Pilsnor and Christmas Ale. The beer should present itself as quite a value to the customer, since a 16 -ounce glass of premium, rich beer will cost justly slightly more than a 12 -ounce bottle of mass produced domestic beer. The beer brewed on the premises will easily overmatch both domestic and imported beers in quality and taste. A 4claim such as this can be made since the ingredients will be of the highest quality and procured under the direct supervision of the brew - master and the beer will be served as soon as it has completed fermenting, giving the consumer a fresh taste without any preservatives. The bar will also offer a full range of soft drinks, wines, as well as bottled domestic beer with a limited selection of bottled imported alcoholic and non - alcoholic beers. The Operators intend to construct the restaurant /brew -pub at 2920 Newport Boulevard which is the corner of Newport Boulevard and 30th Street between Newport Boulevard and Villa Way in Newport Beach, California (the "Premises "). The Premises is located within the "Cannery Village" area of Newport Beach which is intended to serve as an active pedestrian- oriented specialty retail /restaurant area with a wide range of visitor - serving, neighborhood commercial, and marine- related uses permitted. .y �r . 76 -�' STATE OF CALIFORNIA —THE RESOURCES AGENCY CALIFORNIA COASTAL COMMISSION SOUTH COAST AREA 445 W. BROADWAY. STE. 780 P.O. BOX 1450 LONG BEACH. CA 90SM -4416 (710) 590.5071 I b PETE WILSON. Gomm, Filed: 4/19/93 49th Day: 6/7/93 180th Day: 10/16/93( Staff: MV=W Staff Report: 5/26/93 Hearing Date: 7/13 -16/93 Commissio- Actip AC.,it(.H'i .);:2�•t A �AFO1s8i� [Sl'L �4GC' :i!1Tin'D(:GSr`L% . STAFF REPORT: REGULAR C LA END j C:entcas APPLICATION NO.: 5- 93- 137App'o G �:iFts v`{tlJC:1 /Q•;?;;+; APPLICANT: The Doan Trust AGENT: Nancy Lucas^1 `.y•t. PROJECT LOCATION: 2920 Newport Blvd., Newport Beach, Orange County. PROJECT DESCRIPTION: Conversion of an existing 4200 square foot former market /deli (currently vacant) to a restaurant /brew pub and the addition of 600 square feet of outdoor dining. Existing 3100 square foot, second floor office will remain. Lot area: 21,638 square feet Building coverage: 4,178 square feet Pavement coverage: 14,910 square feet Landscape coverage: 2,550 square feet • Parking spaces: 72 Zoning: Retail & Service Commercial Plan designation: Retail & Service Commercial Ht abv fin grade: 31 feet LOCAL APPROVALS RECEIVED: Approval in Concept, City of Newport Beach; Use Permit No. 3485, City of Newport Beach. SUBSTANTIVE FILE DOCUMENTS: City Planning Commission Staff Report dated 2/18/93; Minutes from the City Planning Commission Meeting of 2/18/93; City Council Staff Report dated 3/8/93; California Coastal Commission's Adopted Regional Interpretive Guidelines for Orange County; City of Newport Beach certified Land Use Plan; 5 -88 -252 (City of Newport Beach); 5 -89 -512 (Doan). SUMMARY OF STAFF RECOMMENDATION: Staff is recommending approval with special conditions restricting the hours of operation to after 5 p.m. to avoid negative impacts on public access and recreation that may otherwise result from inadequate parking and to maintain off -site parking agreements. 5 -93 -137. Page 2 STAFF RECOMMENDATION: The staff recommends that the Commission adopt the following resolution: I. Approval with Conditions. The Commission hereby ra ants a permit, subject to the conditions below, for the proposed development on the grounds that the development will be in conformity with the provisions of Chapter 3 of the California Coastal Act of 1976, will not prejudice the ability of the local government having jurisdiction over the area to prepare a Local Coastal Program conforming to the provisions of Chapter 3 of the Coastal Act, and will not have any significant adverse impacts on the environment within the meaning of the California Environmental Quality Act. II. Standard Conditions. 1. Notice of Receipt and Acknowledament. The permit is not valid and development shall not commence until a copy of the permit, signed by the permittee or authorized agent, acknowledging receipt of the permit and acceptance of the terms and conditions, is returned to the Commission office. 2. Expiration. If development has not commenced, the permit will expire two years from the date this permit is reported to the Commission. Development • shall be pursued in a diligent manner and completed in a reasonable period of time. Application for extension of the permit must be made prior to the expiration date. 3. Compliance. All development must occur in strict compliance with the proposal as set forth in the application for permit, subject to any special conditions set forth below. Any deviation from the approved plans must be reviewed and approved by the staff and may require Commission approval. 4. Interpretation. Any questions of intent or interpretation of any condition will be resolved by the Executive Director or the Commission. 5. Inspections. The Commission staff shall be allowed to inspect the site and the project during its development, subject to 24 —hour advance notice. • 6. Assignment. The permit may be assigned to any qualified person, provided assignee files with the Commission an affidavit accepting all terms and conditions of the permit. 7. Terms and Conditions Run with the Land. These terms and conditions shall be perpetual, and it is the intention of the Commission and the permittee to bind all future owners and possessors of the subject property to the terms and conditions. y 7K-tl�o 5 -93 -137 Page 3 III. Special Conditions: Deed Restriction Limiting Hours of Operation Prior to issuance of the coastal development permit, the applicant shall execute and record a deed restriction, in a form and content acceptable to the Executive Director, which shall provide that the subject restaurant /brewpub , shall not be open before 5 p.m. The document shall run with the land, binding all successors and assigns, and shall be recorded free of prior liens. Maintainance of Off -Site Parking The proposed project includes the use of off -site parking for which the applicant has entered into long -term parking agreements. Prior to issuance of the coastal development permit, the applicant shall execute and record a deed restriction, in a form and content acceptable to the Executive Director, which shall provide that the applicant shall maintain, for the life of the development, 67 off -site parking spaces during the hours the development is open for business. IV. FINDINGS AND DECLARATIONS The Commission finds and declares as follows: Pro3ect Description The applicant proposes to convert an existing 4200 square foot former market /deli (currently vacant) into a restaurant /brew pub and to add 600 square feet of outdoor dining. The existing 3100 square foot, second floor office space will remain. The public service area of the proposed restaurant will be 2800 square feet including the proposed outdoor patio dining area. The subject site is located in the Cannery Village /McFadden Square area of the Balboa Peninsula in Newport Beach. The land use designation of the subject site is Retail and Service Commercial. The proposed restaurant use is consistent with that designation. B. Public Access /Parking Section 30210 of the Coastal Act requires maximum access and recreation be provided for the general public. Section 30252 of the Coastal Act states, in part: The location and amount of new development should maintain and enhance public access to the coast by (4) providing adequate parking facilities or providing substitute means of serving the development with public transportation. The subject site is located in an area that is historically popular with the beach going public. In addition to miles of wide sandy beach, the Balboa Peninsula contains many restaurants and visitor serving retail areas as well as the two piers and the fun zone. Because of the area's popularity with the general public it often reaches peak capacity during prime visitor periods. 0 y 79 ���- 5 -93 -137 Page 4 The area within jhe existing building proposed for restaurant use is currently vacant. The former use was a market /deli. The proposed development represents an intensification of use, triggering the need to evaluate parking. When development does not provide adequate parking, patrons of that development are forced to use parking that is available to the general public. This results in patrons of private uses competing with beach goers for available public parking spaces and reduced parking supply for access and recreational uses. lack of public parking can deter the public from using certain beach areas and other visitor amenities. The Balboa Peninsula, particularly in the McFadden Square area, includes many pre - Coastal Act buildings which were constructed without adequate parking. That adds to the general parking shortage in the area. Consequently, it is important that all new development provide adequate parking so as not to displace public beach goer and visitor parking. The Commission has adopted regional guidelines that provide guidance when determining the parking need for various uses. In past actions the Commission has consistently applied the parking ratios described in the regional guidelines for new development in the Balboa Peninsula area. For restaurant use the guidelines recommend a ratio of one parking space for every fifty square feet of public service area. For general office use, the Commission's guidelines recommend a ratio of one space for every 250 square feet of gross floor area. The City of Newport Beach zoning requirements for parking, in this case, are consistent (for office uses) or more restrictive (for restaurant use: one space for every forty square feet of public service area). Both the City and the Commission apply a similar formula for determining . parking demand in the subject area. This indicates that the ratio is appropriate in defining specific parking needs for this area. The City's certified land Use Plan requires that all new development shall provide adequate off street parking to meet the requirements of the City's zoning code. In this case the City has found that the amount of parking provided, including the use of existing spaces within a public parking lot, meets the zoning code requirements. However, Coastal Act Section 30252 requires that new development provide adequate parking in a manner which maintains and enhances coastal access. In this case because the project .proposes to use existing spaces within a public parking lot the Commission cannot find adequate parking will be provided. Where there is no certified total local Coastal Program, the Commission must find a proposed project consistent with the chapter three policies of the Coastal Act. The certified Land Use Plan, when there is a conflict, serves as guidance only. Based on the above guidelines ratio, the parking demand generated by the proposed project is 56 spaces. In addition, the existing office space on the second floor generates a demand of 13 spaces. There are two spaces on -site. Additionally the applicant has a long -term lease for the use of 41 spaces in an adjacent private parking lot. The applicant proposes to provide a total of 72 parking spaces. However, of that number, 29 are acquired through a lease agreement with the City to use a parking lot that is currently available to the public. Without the public parking lot spaces, the proposed project would be deficient by 26 spaces, a significant shortfall. 5 -93 -137 Page 5 Coastal Development Permit No. 5 -88 -252 (City of Newport Beach) allowed construction of the public parking lot in question. In approving that development, the Executive Director determined that parking was a severe problem in the area and that the parking lot would provide 45 additional public parking spaces to be used for visitor serving uses and businesses. The current applicant sold the area now containing the public parking lot to the City in 1988. As part of the sale agreement, the current applicant retained the right to use as many as all of the spaces provided that, among other requirements, the private use be restricted to night time (5 p.m. to 6 a.m.) use. For the use of these spaces the applicant is required to pay the City a 8500.00 per space annual fee. On August 9, 1989 the Commission concurred with the Executive Director's determination to approve Coastal Development Permit No. 5 -89 -512 (Doan) allowing construction of a 2375 square foot restaurant. Under that approval, the restaurant was allowed to use 18 in -lieu spaces in the same public parking lot now proposed for the same use. However in that case the public parking spaces were available for the private development only after 5 p.m. Beach and visitor parking demand generally drops after 5 p.m. The operating hours of the proposed restaurant will be 6 a.m. to 11 p.m. Sunday through Thursday and 6 a.m. to 2 a.m. Friday and Saturday. These operating hours result in parking demand that will conflict with prime beach and visitor use hours, a situation that did not occur under the project approved under 5 -89 -512 for the same applicant. In this case, the conflict results in inadequate parking for the proposed project. The applicant has an agreement with the City allowing the use of the public • parking lot for the existing commercial building between the hours of 5:00 p.m. 6:00 a.m. However, under the current proposal the daytime restriction would be removed and parking for the proposed restaurant in the public parking lot would be allowed during daytime hours. The end result would be that the applicant may use all 45 spaces of the public lot from 5 p.m. to 6 a.m. and 29 or 64% of the spaces during the day. The City staff's report to the Planning Commission for action on the Amendment to an Off -Site Parking Agreement and February 18, 1993, states: "The daytime restriction on the use of in -lieu parking spaces was to insure that the Cannery Village Municipal Parking Lot would be available to daytime businesses and visitors to Cannery Village and the beach., Minutes from the Planning Commission hearing (February 18, 1993) on the Use Permit for the proposed project quote City staff as follows: "The subject Municipal Parking Lot is not currently occupied 100 percent 12 months of the year; however, during the sunnier months it is relatively heavily used by recreational users and by employees at City Hall." At the February 18, 1993 Planning Commission meeting, City staff questioned the appropriateness of displacing recreational users of the Municipal parking lot to allow for a new commercial use. The City's certified Land Use Plan states that the Balboa Peninsula experiences significant summer visitor • traffic. The certified LUP also states: y. �J -tt' 0 5 -93 -137 Page 6 There is also a difference in the peak -hour traffic for weekdays between winter and summer. A comparison of peak -hour traffic shows that it is most heavily affected on routes serving Balboa Peninsula during the summer. Usually, daily peak -hour traffic occurs between 5:00 p.m. and 6:00 p.m. At several locations during the summer, primarily in the Balboa Peninsula area, the peak hour occurs at midday, either between noon and 1:00 p.m. or between 1:00 p.m. and 2:00 p.m. The LOP further states: Parking is a major issue in the Newport Beach Coastal Zone. Observations indicate that the current supply is generally adequate in the winter for both residents and visitors. During the summer the demand for parking increases. On peak weekends during the summer, parking is highest in the beach areas. The LOP also includes the City's policy to provide the greatest number of on- street parking spaces possible. It can be inferred that the City's intent is to provide the greatest number of public (not just on- street) parking spaces possible. Clearly the need for the provision of adequate parking with new development is an issue in the City and particularly on the Balboa Peninsula. As proposed, the project would result in the loss of 29 parking spaces currently available to the public in an area where parking demand for visitor uses and beach access is great. Without the use of the spaces available in the public lot, the subject site is deficient 26 parking spaces. Use of a public parking lot to serve private development would result in a direct loss of parking to the beach going public. Allowing the development to go forward with such a significant shortfall of parking spaces would result in loss of parking for the beach going public. The loss would result from patrons of the proposed development seeking public spaces when the other parking associated with the new development is at capacity. However, if the project is conditioned to limit the hours of operation until after 5 p.m., the need for the public parking spaces during peak beach and visitor use periods would be eliminated. If the hours are modified, the conflict between private and public use of the public parking lot would no longer exist. When Coastal Development Permit No. 5 -89 -512 (Doan) was approved, the Executive Director determined that because the public parking lot was not necessary to serve the development before 5 p.m., adequate parking was provided. The special condition required in the subject application is consistent with that past action. To assure that the modified hours remain in effect for the life of the proposed project, the hours limitation must be recorded as a deed restriction. A second special condition is required to assure that the development will maintain off -site parking arrangements since only 2 parking spaces are provided on -site Therefore, the Commission finds, that as conditioned the project is consistent with Sections 30210 and 30252 of the Coastal Act regarding public access and recreation and the provision of adequate parking with new development. C/.S z 5 -93 -137 Page 7 Local Coastal Program Section 30604(a) of the Coastal Act provides that the Commission shall issue a Coastal Development Permit only if the project will not prejudice the ability of the local government having jurisdiction to prepare a Local Coastal Program which conforms with the Chapter 3 policies of the Coastal Act. The Newport Beach Land Use Plan was certified on May 19, 1982. As conditioned to limit operating hours until after 5 p.m., approval of the proposed development will not prejudice the City's ability to prepare a Local Coastal Program Implementation Plan for Newport Beach that is consistent with the Chapter 3 policies of the Coastal Act as required by section 30604(a). California Environmental Quality Act Section 13096(a) of the Commission's administrative regulations requires Commission approval of a Coastal Development Permit application to be supported by a finding showing the application to be consistent with any applicable requirements of the California Environmental Quality Act (CEQA). The proposed project is in an existing urbanized area with adequate services and utilities provided and so will not cause significant adverse impacts on the environment. Additionally, provide adequate parking and so area. Therefore, the Commission consistent with the requirement s 8121E as conditioned, the proposed project will will not interfere with beach access in the finds that, as conditioned, the project is of the Coastal Act to conform to CEQA. •r 0 0 � V'ICINITY MAP y J'L! .MA •1 i P� 9 P4 o 4 D p;1 c P.2 r w � O 9 ff• P+ •°' � as ♦� r -{ A � . A f / w Q� {r� or -{ NEWPORT BEACH tr•s M i°� I M wMM'YLTYMML M {IwNfYI �r 1 w sP -t wcu ruul•�uPm[xruL -1 �-� ♦s � ! 4 M-M UsTA WY TVLt flMRT MpO{IITw Y -1 caY clumelt P.2 r w � O 9 ff• P+ •°' � as ♦� r -{ A � . A f / w Q� \ \\ d0 \\F u R PLO V, I \ \y � P -C \\ NEWPORT BA� MAP MYIITI Ml {I {t MTIAL 1140T {p ImclK 11.6m CO ftou hu'HUMTYRNM{ uft"Am s{ {Mt. N0. M w,iew UK MAP ND. `f. • dtpff FERMIT N04 was Exh1 -.,6i f A 5 -43 -137 DISTRICTING NEWPORT BEACH — i°� I M wMM'YLTYMML M {IwNfYI _� wcu ruul•�uPm[xruL -1 �-� M -+ eu►L{M a{MKMnu + I[[T M-M UsTA WY TVLt flMRT MpO{IITw Y -1 caY clumelt \ \\ d0 \\F u R PLO V, I \ \y � P -C \\ NEWPORT BA� MAP MYIITI Ml {I {t MTIAL 1140T {p ImclK 11.6m CO ftou hu'HUMTYRNM{ uft"Am s{ {Mt. N0. M w,iew UK MAP ND. `f. • dtpff FERMIT N04 was Exh1 -.,6i f A 5 -43 -137 .ti �� xl V � r g' se Ilti R, N.�Y r I a O \ \O . \ ®® ® I ® I i Q - 4 WOW i Y x ✓I �,.. \ F r n •• 8 LS O O � d rt"` i fall- Is f ►f µ + \ \ +r 1� l • +�4 A y0 r' Cb ASSESSORS VAP •f � 5 -93- /37 _ . A41- V I% �J 4 1 s' �Vm{ p V aiwY/ PMAV � 1 aYRII M4 ^� FI. �aY11i M!l11� half QrK MsV lat �� hltll M. MIItI • AraM •IA / hl Wbla M �� hNl en��14Y1 �(3 Olr4amllft fla MMM��a � �laa�11111Y1 YlliW alaaala� B`a lii� 1 �7 rctre�D m uu I 1 NEWPORT BEACH BREWING COMPANY Newport Beach Brewing Company, Inc. "(the Operators) ", is a California Corporation formed to construct and operate a restaurant /brew -pub to be called Newport Beach Brewing Company, which will be located at 2920 Newport Boulevard in Newport Beach, California. The restaurant will be open from 6:00 a.m. to 11:00 p.m., five days a week and 6:00 a.m. to 2:00 a.m., Friday and Saturday. There will be no live entertainment. The exterior of the restaurant /brew -pub will offer a person passing -by the "old world" ambiance of a fun and energetic eating and drinking establishment. This highly desirable Cap Cod designed building is highlighted with a random pattern brick front, shingle roof, gables, window walk, and painted wood trim. The focal point of the restaurant /brew -pub will be the custom made copper accented stainless steel beer brewing equipment that will be placed behind the bar and will rise to the ceiling of the building. These brewing tanks and storage vats will be cleaned and polished daily to keep their luster and appeal. The Operators of the restaurant /brew -pub are working carefully with their experienced architect and design team to select a theme that will create a warm, yet vibrant environment for patrons to enjoy. An emphasis for the interior of the restaurant will be comfortable stained hard -wood and brick that offer a rustic old world charm and ambiance. The bar is expected to be stained and shined dark hardwood and cooper with a brass foot rail that will give the immediate area an "upper- class" feel. There will be bountiful seating at the bar and on bar stools directly across from the bar. There will be seating at tables throughout the remainder of the restaurant, as well as on the patio. The walls will be brick and decorated with memorabilia from the brewing industry with particular emphasis on California pre - prohibition breweries, early Newport Beach and brew -pubs and micro - brewers currently operating in California and the Pacific Northwest. The' restaurant's menu will feature classic, as well as, up- to -date cuisine that will appeal to the modern palate. Appetizers will include buffalo wings, beer battered fried onion rings, and "Armadillo eggs" (stuffed jalapeno peppers). A visible custom brick wood fired pizza oven will be the focal point as a number of individual gourmet wood fired pizzas will be served. Newport Beach's "finest" fresh ground burger will also head the entrees with other choices including a "naked" chicken breast sandwich, and a selected number of pasta dishes. A wide variety of salads will be offered either before a meal or as a meal themselves and "World EX k bi+ E 5= 93 -i37 .: 0 Championship" homemade chili will be served in a similar manner. There will also be an assortment of fresh baked desserts available to patrons of the establishment. The restaurant /brew -pub intends to offer a full service wine and beer bar with the emphasis on premium beer that will be brewed on the premises. There will usually be four to six beers available that were brewed on site. The range of beers will include ales, pilsners, lagers and stouts. The brewery will produce approximately 16 varieties of beer each year, including such special seasonal flavors as Octoberfest Pilsnor and Christmas Ale. The beer should present itself as quite a value to the customer, since a 16 -ounce glass of premium, rich beer will cost justly slightly more than a 12 -ounce bottle of mass produced domestic beer. The beer brewed on the premises will easily overmatch both domestic and imported beers in quality and taste. A claim such as this can be made since the ingredients will be of the highest quality and procured under the direct supervision of the brew - master and the beer will be served as soon as it has completed fermenting, giving the consumer a fresh taste without any preservatives. The bar will also offer a full range of soft drinks, wines, as well as bottled domestic beer with a limited selection of bottled imported alcoholic and non - alcoholic beers. The Operators intend to construct the restaurant /brew -pub at 2920 Newport Boulevard which is the corner of Newport Boulevard and 30th Street between Newport Boulevard and Villa Way in Newport Beach, California (the "Premises "). The Premises is located within the "Cannery Village" area of Newport Beach which is intended to serve as an active pedestrian- oriented specialty retail /restaurant area with a wide range of visitor - serving, neighborhood commercial, .and marine - related uses permitted. 0 0 th 4j. 8� + b G W Q¢w WMo F � F rn � W p Ut0 U a w W W F rs; A H za ao G z� Wo� 6 ago w a 0 7 �n U 0, E zo 8 �zz �ow 9 10 t�vl rna 12 1.3 14 15 S 16 N 17 N18 .y] 19 20 21 22 23 24 25 26 27 RECORDING REQUESTERY AND RETURN TO: California Coastal Commission 45 Fremont St., Suite 2000 San Francisco,CQ 94105 -2219 Attn: Legal Division RMRD1NG REMESTED n NDRTH AMERIGIN TITLE DEED RESTRICTION �} • DOW f 94- 00387% 19 —Jr t4 -19 i 02: 0". Ite {nrp5j ip U7 ?i, ;. ?i ttPrnY�jS OF 0r3i,3c Lee R. Ge ilb"`t:. i'.r'nnir to C. v b AA .vv I. WHEREAS, Thanes W Doan And Dnmf-hit R ry�:n as T 11C }PPS of mhe Loan 2/ Tnis+n of gept,27.1974 , hereinafter referred to as the " Owner(s)," is /are W{� the record owner(s) of the following real property: hereinafter referred to as the "Property;" and IL WHEREAS, the California Coastal Commission, hereinafter referred to as the "Commission," is acting on behalf of the People of the State of California; and III. WHEREAS, the subject property is located within the coastal zone as defined in 330103 of Division 20 of the California Public Resources Code, hereinafter referred to as the "California Coastal Act of 1976," (the Act); and y IV_ WHEREAS, pursuant to the Act, the Owner applied to the Commission for a coastal development permit on the Property described above; and V. VIIERLAS, coastal development permit uumber'5 -93 -137, hereinafter referred to as, thi "Permit," was granted on July 15 1993 , by the Commission in accordance with the provision of the Staff Recommendation , and Notice of Intent tt TT and Findings attached hereto as EX M?-?uX ane54erein incorporated by j 8 9 10 11 12 13 14 15 161 17 18 19 20 21 22 23 24 25 26 27 courtr rnren sfenty eeeu Sao D "J 0 1 0 reference: and VI. WHEREAS, the Permit was subject to the terms and conditions including, but not limited to, the following condition(s): 1. Deed Restriction Limiting Daytime Use Prior to issuance of the coastal development cermit, the applicant shall execute and record a deed restriction, in a form and content acceptable to the Executive Director, which shall provide that no more than 1,500 square feet of service area of the subject restaurant /brewpub shall be open before 5 p.m. The doctanent shall run with the land, binding all successors and assigns, and shall be recorded free of prior liens and encumbrances which the Executive Director determines to affect said interest. 2. Maintenance of Off -Site Parking The proposed'project includes the use of off -site parking for which the applicant has entered into long -term parking agreements. Prior to issuance ol'.; the coastal development permit, the applicant shall execute and record a deed restriction, in a form and content acceptable to the Executive Director, which shall provide that the applicant shall maintain, for the life of the development, a total of 41 off -site parking spaces between 6100 a.m. and 5:00 p.m. daily, and a total of 67 off -site parking spaces between 5:00 p.m. and 2:00 a.m. daily. The document shall run with the land, binding all successor:: and assigns, and shall be recorded free of prior liens and encumbrances which the Executive Director determines to affect said interest. VII. WHEREAS, the Commission found that but for the imposition of the ayo.ve condition(s) the proposed development could not be found - consistent t with provisions of the California Coastal Act of 1976 and that a permit could therefore not have been granted; and VIII. WHEREAS, Owner has elected to comply with the condition(s) imposed by'the Permit and execute this Deed Restriction so as to enable Owner to undertake the development authorized by the Permit. —2- d I NOW, THEREFORE, in consideration of the granting of the Permit to the 2 Owner by the Commission, the Owner hereby irrevocably covenants with the 3 Commission that there be and hereby is created the following restrictions 4 on the use and enjoyment of said Property, to be attached to and become a 5 part of the deed to the property. 6 1. COVENANT, CONDITION AND RESTRICTION. The undersigned Owner, 7 for himself /herself and for his /her heirs, assigns, and successors in 8 interest, covenants and agrees that: 9 Applicant shall provide,that no more than 1,500 square feet of service area to of the subject restaurant /brewpub shall be open before 5:00 p.m. 11 Applicant shall maintain for the life of the development, a total of 41' Off-site parking spaces between 6 :00 a.m. and 5:00 p.m. and a total of 67 12 off -site parking spaces between 5:00 p.m. and 2:00 a.m. daily as shown on 13 exhibit C attached hereto and incorporated herein by reference. 14 15 16. 17 18 2. DURATION. Said Deed Restriction shall remain in full force 19 and effect during the period that said Perm: it, or any modification or 20 amendment thereof remains effective, and during the period that the 21 development authorized by the Permit or any modification of said development, 22 remains in existence in or upon any part of, and thereby confers benefit ! 23 upon, the Property described herein, and shall bind Owner and all his /her 24 assigns or successors in interest.. 25 3. TAXES AND ASSESSMENTS. It is intended that this Deed . 26 Restriction is irrevocable and shall constitute an enforceable restriction 27 within the meaning of a) Article XIII, 48, of the California Constituti —, rOUnT PAPF.n sr.rc vv cr.uro.w,a Sm. il��nev. e.,xi —3— ' nu y.9z 0o II y. 9 3 :-z s 1 and b) §402.1 of the California Revenue and Taxation Code or successor 2 statute. Furthermore, this Deed Restriction shall be deemed to constitute . 3 a servitude upon and burden to the Property within the meaning of §3712(d) 4 of the California Revenue and Taxation Code, or successor statute, which 5 survives a sale of tax - deeded property. 6 4. RIGHT OF ENTRY. The Commission or its agent may 7 enter onto the Property at times reasonably acceptable to the Owner to 8 ascertain whether the use restrictions set forth above are being observed. . 9 5. REMEDIES. Any act, conveyance, contract, or authorization 10 by the Owner whether written or oral which uses or would cause to be used 11 or would permit use of the Property contrary to the terms of this Deed 12 Restriction will be deemed a violation and a breach hereof. The Commission 13 and the Owner may pursue any and all available legal and /or equitable remedies 14 to enforce the terms and conditions of this Deed Restriction. In the event 15 of a breach, any forbearance on the part of either party to enforce the 16 terms and provisions hereof shall not be deemed a waiver of enforcement 17 rights regarding any subsequent breach. 18 6. SEVERABILITY. If any provision of these restrictions is 19 held to be invalid, or for any reason becomes unenforceable, no other 20 provision shall be thereby affected or impaired. 21 22 Dated: 19 23 �. 24 SIGNE � VrGLG /�o NED: 2tCG.��7 25 I rFol i s ( LAV R) US PRINT OR TYPE NAME OF ABOVE PRINT OR TYPt NAME OF ABOVE 26 27 * * NOTARY ACKNOWLEDGMENT ON THE NEXT PAGE +' =U RT PAPER "A" 61 G�, /OI,NIA sm, „s u[v. 0.731 —4— 0o II y. 9 3 :-z s I 2 3 4 5 6 7 8 9 10 11 12 131 0 STATE OF CALIFORNIA COUNTY OF On Public personally appeared before me, A Notary personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is /are subscribed to the within instrument and acknowledged to me that he /she /they executed the same in his /her /their authorized capacity(ies), and that by his /her /their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature State of �a��- ='�L�I2 �cc County of On before me, /Y l ivy / 14' l (DATE) -{-, ''� (NAM TITLE OF OFFICER- I.E..JANE DOE. NO!TA� MEILIC-) personally appeared 1 1T�\ 11 l L� I�iY2f�Rf INAMEISI OF SIGNERs)) f RIGHT THUMBPRINT(OPTIORRI W s f 0 CAPACITY CLAIMED BY SIGNER(S) ❑ INDIVIDUAL(S) ❑ CORPORATE OFFICER(S) • PARTNER(S) (nTLEI51) • ATTORNEY IN FACT • TRUSTEE(S) • GUARDIAN /CONSERVATOR • OTHER: SIGNER IS REPRESENTING: (NAME OF PERSON(SI OR ENTh Y(IESI NTION NOTARY; The information requested below is OPTIONAL. Itgould, howev/er,�9"event fraudulent attachment of this certificate to any unauthorized document. THIS CERTIFICATE Title or Type of Document 'cam MUST BE ATTACHED TO THE DOCUMENT Number of Pages i�r Date of Document /` . ;�Y, - 26 DESCRIBED AT RIGHT: Signer(s) Other Than Named Above WOLCOTTS FORM 69210 —ALL PURPOSE ACKNOWLE GKNT MTH SIGNER CAPACITY /REMESENrATDUFINGERPRNT —Rev. 12-92 0592 WOLCOTTS FORMS, WC. y�9y ersonally known to me - OR - ❑ proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is /are sub- scribed to the within instrument and acknowledged OFFICIALSEAL to me that he /she /they executed the same in MARY R. MEZEUL his /her /their authorized capacity(ies), and that by Notary Public- Callfomla ORANGECOUNTy his /her /thelr signature(s) on the instrument the arr A'N person(s), or the entity upon behalf of which the Apr[129,199>491res ApdI29.1994 person(s) aced, executed the instrument. Witness my hand and official seal. RIGHT THUMBPRINT(OPTIORRI W s f 0 CAPACITY CLAIMED BY SIGNER(S) ❑ INDIVIDUAL(S) ❑ CORPORATE OFFICER(S) • PARTNER(S) (nTLEI51) • ATTORNEY IN FACT • TRUSTEE(S) • GUARDIAN /CONSERVATOR • OTHER: SIGNER IS REPRESENTING: (NAME OF PERSON(SI OR ENTh Y(IESI NTION NOTARY; The information requested below is OPTIONAL. Itgould, howev/er,�9"event fraudulent attachment of this certificate to any unauthorized document. THIS CERTIFICATE Title or Type of Document 'cam MUST BE ATTACHED TO THE DOCUMENT Number of Pages i�r Date of Document /` . ;�Y, - 26 DESCRIBED AT RIGHT: Signer(s) Other Than Named Above WOLCOTTS FORM 69210 —ALL PURPOSE ACKNOWLE GKNT MTH SIGNER CAPACITY /REMESENrATDUFINGERPRNT —Rev. 12-92 0592 WOLCOTTS FORMS, WC. y�9y I 1 2 3 4 5 6 7 8 9 10 11 12 13 14 151 16 17 is 19 20 21 22 23 24 25 26 27 COURT PAPER STal. o. e........A STO 113 �NFV This is to certify that the deed restriction set forth above is hereby acknowledged by the undersigned officer on behalf of the California Coastal Commission pursuant to authority conferred by the California Coastal Commission when it granted Coastal Development Permit No. 5 -93 -137 on July 15, 1993 and the California Coastal Commission consents Ito recordation therof by its duly authorized officer. Dated: 3 Jo rs, Staff Counsel California Coastal Commission STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO On /3 before me, Deborah L. Bove A Notary Public personally appeared John Bowers personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is /are subscribed to the within instrument and acknowledged to me that he /she /they executed the same in his /her /their authorized capacity(ies), and that by his /her /their signature(s) on the instrument the person(s), or the entity upon behalf of which the persons) acted, executed the instrument. WITNESS my hand and official seal. -6- L. BOVE October 4, 1995 9 I 9.9 5 >� On _ July 15 1993 the California Coastal Commission granted to THE OOAN TRUST Permit 5 -93 -137 subject to the attached conditions, for development consisting of: Conversion of an existing 4200 square foot former market /deli (currently vacant) to a restaurant /brew pub and the addition of 600 square feet of outdoor dining. Existing 3100 square foot, second floor office will remain. more specifically described in the applicatiun file in the Commission offices. The development is within the coastal zone in Orange County at— 2920 Newport Blvd., Newport Beach The actual development permit is being held in the Commission office until fulfillment of the Special Conditions imposed by the Commission. Once these conditions have been fulfilled, the permit will be issued. For your information, all the imposed conditions are attached. Issued on behalf of the California Coastal Commission on July 15, 1993 PETER DOUGLAS Executive Director By: LCD Title: taff Analyst ACKNOWLEDGMENT: The undersigned permittee acknowledges receipt of this notice of the California Coastal Commission determination on Permit No. 5 -93 -137 and fully understands its contents, including all conditions imposed_ Date Pehmittee Please sign and return one copy of this form to the Commission office at the above address. EXHIBIT "A" STATE 6F CALIFORNIA —THE RESOURCES AGENCY PETE WILSON, Goxmc CALIFORNIA COASTAL COMMISSION PAUeU 1 SOUTH COAST AREA Date: to1D 19 <' 745 W. BROADWAY. STE. 380 P.O. BOX 1450 Permit Application No. 5 -93 -137 LONG BEACH. CA 90607."16 (310) 590.5071 NOTICE OF INTENT TO ISSUE PERMIT On _ July 15 1993 the California Coastal Commission granted to THE OOAN TRUST Permit 5 -93 -137 subject to the attached conditions, for development consisting of: Conversion of an existing 4200 square foot former market /deli (currently vacant) to a restaurant /brew pub and the addition of 600 square feet of outdoor dining. Existing 3100 square foot, second floor office will remain. more specifically described in the applicatiun file in the Commission offices. The development is within the coastal zone in Orange County at— 2920 Newport Blvd., Newport Beach The actual development permit is being held in the Commission office until fulfillment of the Special Conditions imposed by the Commission. Once these conditions have been fulfilled, the permit will be issued. For your information, all the imposed conditions are attached. Issued on behalf of the California Coastal Commission on July 15, 1993 PETER DOUGLAS Executive Director By: LCD Title: taff Analyst ACKNOWLEDGMENT: The undersigned permittee acknowledges receipt of this notice of the California Coastal Commission determination on Permit No. 5 -93 -137 and fully understands its contents, including all conditions imposed_ Date Pehmittee Please sign and return one copy of this form to the Commission office at the above address. I NOTICE OF INTENT TO ISSUE PERMIT I Page 2 of 3 Permit Application No. 5 -93 -137 STANDARD CONDITIONS: 1. Notice of Receipt and Acknowledgment. The permit is not valid and development shall not commence until a copy of the permit, signed by the permittee or authorized agent, acknowledging receipt of the permit and acceptance of the terms and conditions, is returned to the Commission office. 2. Expiration. If development has not commenced, the permit will expire two years from the date on which the Commission voted on the application. Development shall be pursued in a diligent manner and completed in a reasonable period of time. Application for extension of the permit must be made prior to the expiration date. 3. . Compliance. All development must occur in strict compliance with the proposal as set forth in the application for permit, subject to any special conditions set forth below. Any deviation from the approved plans must be reviewed and approved by the staff and may require Commission appFova T: A. Interpretation. Any questions of intent or interpretation of any condition will be resolved by the Executive Director or the Commission. 5. Inspections. The`Commission staff shall be allowed to inspect the site and the project during its development, subject to'24 —hour advance notice. 6. Assignment. The permit may be assigned to any qualified person, provided assignee files with the Commission an affidavit accepting all terms and .conditions of the permit. 7. Terms and Conditions Run with the Land. These terms and conditions shall be perpetual, and it is the intention of the Commission and the permittee to bind all future owners and possessors of the subject property to the terms and conditions. SPECIAL CONDITIONS: 1� Deed Restriction Limiting Daytime Use Prior to issuance of the coastal development permit, the applicant shall execute and record a deed restriction, in a form and content acceptable to the Executive birector, which shall provide that no more than 1,500 square feet of service area of the subject restaurant /brewpub shall be open before 5 p.m. The document shall run with the land, binding all successors and assigns, and snall be recorded free of prior liens. 0 I . . y Page 3 5 -93-137 2.. Maintainance of Off —Site Parking 0 The proposed project includes the use of off —site parking for which the applicant has entered into long —term parking agreements. prior to issuance of the coastal development permit, the applicant shall execute and record a deed restriction, ig a form and content acceptable to the Executive Director, which shall provide that. the applicant shall maintain, for the life of the development, a total of 41 off —site parking spaces between 6:00 a.m. and 5:00 p.m. daily, and a total of 67 off —site parking spaces between 5:00 p.m. and 2:00 a.m. daily. Recission of Amendment to Parking Agreement Prior to issuance of the coastal development permit, the applicant shall submit evidence *that the Amendment to Parking Agreement approved by the City of Newport Beach,on February 16, 1993, has been rescinded by the City Council. Additionally. prior to issuance of the coastal development permit, the applicant shall :submit, for the review and approval of the Executive Director, a letter from the City of Newport Beach indicating that the City agrees that the City's Code Enforcement will enforce the public service area restrictions described in Special Condition 1. Submittal of Final. Plans Prior to issuance of the coastal development permit, the applicant shall submit, for the review and approval of the Executive Director, final floor plans illustrating the area proposed for the day use restriction imposed in special conditionl, above. AFTER YOU HAVE SIGNED AND RETURNED THE DUPLICATE COPY YOU WILL BE RECEIVING THE LEGAL FORMS TO COMPLETE (WITH INSTRUCTIONS) FROM THE SAN FRANCISCO OFFICE. WHEN YOU RECEIVE THE DOCUMENTS IF YOU HAVE ANY QUESTIONS, PLEASE CALL THE LEGAL DEPARTMENT AT (415) 904 -5200. MV:tn 9280E cel EXHIBIT "B" (LEGAL DESCRIPTION) PARCEL A: THE WESTERLY 12.5 FEET OF LOT 17, ALL OF LOTS 18, 19, 20 AND 21, AND THE EASTERLY 9.50 FEET OF LOT 22, BLOCK • 230 OF LANCASTER'S ADDITION TO NEWPORT BEACH, IN THE CITY OF NEWPORT.' BEACH; COUNTY OF ORANGE, STATE OF CALIFORNIA, AS SHOWN ON A MAP RECORDED IN, BOOK 5, PAGE 14 OF MISCELLANEOUS MAPS, RECORDS OF ORANGE $COUNTY, CALIFORNIA. PARCEL B: PARCEL 1, IN THE CITY OF NEWPORT BEACH, COUNTY OF ORANGE, STATE OF CALIFORNIA, ACCORDING TO THE PARCEL MAP FILED IN BOOK 92, PAGE 40 OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. y �� AD JAN 12 194 14:1 IS P h PROPERTIES PARCEL .MAP P.2/2 I 8oylthwest Corner of 30th,gtreet and Villa Way o Newport Beach, California October, 19 Richard A. Fuller87M.A.I. 19 $� W.dY U o r :o 7 4 1 2( ie - N � S 13 f IZ R� 26 0 N• m i5 13 4S.MR'S• ADD. M M. 5- 14 EC MAP P. M. sz -' 40 1 to y' 114 ' o N! WPB waVAND ASS' BOO.K.(�4` /DU Exhibit c P.2/2 I .. .. :. W.dY T 4 ON - N ® 4 f IZ R� 1 P. M. 94-7 18 'e' 3 1 t r '� •h 10 � 1 � , L Ia s /a 4 ? I B/ l 43• e ADD. N! WPB waVAND ASS' BOO.K.(�4` /DU Exhibit No. 4 �V BLAMK y. 1d 2 CITY OF NEWPORT BEACH Hearing Date: September 13, 1999 AF�RT COMMUNITY AND ECONOMIC DEVELOPMENT 11 04 o Agenda Item No.: y i PLANNING DEPARTMENT Staff Person: Patrick J. Alford ij 33o NEWPORT BOULEVARD 644 -3235 CgCIFUNd�r NEWPORT BEACH, CA 92658 (949) 644-3200% FAX (949) 644-3250 REPORT TO THE MAYOR AND CITY COUNCIL SUBJECT: Newport Beach Brewing Company Appeal FILE COP Y 2920 Newport Boulevard SUMMARY: An appeal by the applicant of the Planning Commission's denial of an amendment to Use Permit 3485 to allow a change in Alcoholic Beverage Control license type to allow full alcoholic beverage service. ACTION: Affirm or reverse the Planning Commission's denial of: Use Permit No. 3485 (Amended) Background On August 5, 1999, the Planning Commission voted (3 ayes, 1 no, 3 absent) to deny the proposed amendment to Use Permit 3485. The appeal of the Planning Commission's decision was filed on August 19, 1999. Analysis The project denied by the Planning Commission would have allowed the restaurant/brewpub to go from beer and wine sery ice only to full alcoholic_beverage service. The Planning Commission based its denial on the high crime rate and high concentration of licenses in the Cannery Village area. The Planning Commission determined that due to these factors, public convenience or necessity would not be served by the project. Furthermore, the Planning Commission concluded that approval of the project under these circumstances would be detrimental to the health, safety, peace, morals, comfort, and general welfare of persons residing or working in the area. The Planning Commission's review of the project followed the provisions of the Alcoholic Beverage Outlet (ABO) Ordinance. The ABO requires the Planning Commission to consider whether the use serves public convenience or necessity, the crime rate, the number of alcohol licenses per capita, the numbers of alcohol- related calls for service, crimes or arrests, and adjacent land uses. The Planning Commission noted that the crime statistics and ratio of alcoholic beverage licenses to population constitute an "undue concentration" of licenses under State law. Under these circumstances, the ABC is required to deny the application for the license unless the City determines that public convenience or necessity would be served by its issuance. The Planning Commission also considered information provided by the Police Department. The Police Department cited the disproportionate impact alcohol related offenses continues to have on their workload and on the quality of life in the community. The Police Department also stated that while they had no serious concerns with the current operation, they believed that the project must be considered in light of the larger issue of the intensification of alcohol and related uses on the Balboa Peninsula, especially in the Cannery Village area. At the Planning Commission hearing, the applicant stated that they operate a good establishment and that full alcoholic beverage service is needed in order to stay competitive and offer improved services to their customers. The applicant cited statistics attributing less than one percent of the alcohol - related arrests in the area to the establishment. The applicant also stated that the over concentration issue was moot, since they were an existing establishment and were only modifying an existing license. The applicant further stated that the situation in the area will improve with the closing of the Cannery Restaurant and the Snug Harbor. Should the City Council choose to reverse the Planning Commission's denial of the project, findings and conditions for approval are contained in Exhibit `B" of the Planning Commission staff report. Submitted by: Prepared by: SHARON Z. WOOD PATRICK J. ALFORD Assistant City N'tartager senior PtMaer Attachments: ]. A eal Application. 2. August 5, 1999 Planning Commission staff report 3. August 5, 1999 Planning Commission meeting minutes. Newport Beach Brewing Co. Appeal September 13. 1999 Page 2 Y. /0 CITY OF NEWPORT BEACH APPLICATION TO APPEAL DECISION OF THE PLAN Application No. U6L f'�c-rw,%-1' No. 3y8S L� Name of Appellant 1 I or person filing: <-1 120 r Phone: Address: Ll (S -T0 l✓n Sir, Ulee /,A. 9 / 1 L/,,k4-i n a 4, Date of Planning Commission decision: uays4 S`� j 19 q,7 Regarding application of: /VLV111ti �c" . ,^e- [�inu CG (Description of application filed with Planning Commission) Cl1 LD for Reasons for Appeal: 444 wL FOR OFFICE USE ONLY , V U Date Appeal filed and Administrative Fee received: 19" - Hearing Date. An appeal shall be scheduled for a hearing efore the City Council within thirty (30) days of the filing of the appeal unless both applicant and appellant or reviewing body consent to a later date (NBMC Sec. 20.95.050) cc: Appellant Planning (Furnish one set of mailing labels for mailing) File APPEALS: Municipal Code Sec. 20.95.0408 Appeal Fee: $278 pursuant to Resolution No. 98 -52 adopted on 7 -27 -98 (Deposit funds with Cashier in Account #2700 -5000) y. /a5 1�5 CITY OF NEWPORT BEACH �t�4'W�RT COMMUNITY AND ECONOMIC DEVELOPMENT o e PLANNING DEPARTMENT H i} S moo NEWPORT BOULEVARD NEWPORT BEACH, CA 92656 (949) 644-32a ; FAX (949) 644'325° SUBJECT: SUMMARY: ACTION LEGAL DESCRIPTION: ZONING DISTRICT: LAND USE DESIGNATION: OWNER: Hearing Date: Agenda Item No.: Staff Person: Appeal Period: REPORT TO THE PLANNING COMMISSION Newport Beach Brewing Company 2920 Newport Boulevard August 5, 1999 1 Patrick J. Alford 644 -3235 14 Days An amendment to an existing use permit to allow a change in Alcoholic Beverage Control license type to allow full alcoholic beverage service. Hold hearing; approve, modify, or deny: Use Permit No. 3485 (Amended) Parcel 1 of Parcel Man 92 -40 (restaurantfbrewpub site), an,d portions of Lots 17 and 22 of Lancaster's Addition (off -site parking lot). Cannery Village /McFadden Square Specific Plan (SP -6) - Specialty Retail (SR) District. Retail and Service Commercial Allan Fainbarg and Arnold D. Feuerstein, Anaheim Ile °G Projel ' p�v f e VICINITY MAP 'r Sol i —__... '— — ry 9j i.; i Q v4 N 292 ` I _1 a } �• 2908 �Y 1 .�i.a 9j i.; i Q v4 N 292 ` I _1 a } �• 2908 �Y 1 =i r Use Permit 3485 (Amended) 1 �'•tr iry i_�F bs I /r� Subject Property and Surrounding Land Uses Current land use: Commercial (eating and drinking establishment/office) To the north: Vh Street with commercial (retail and office) /residential beyond. To the south: Public alley with commercial (eating and drinking establishment) beyond. To the east: Surface parking. To the west: Newport Boulevard with commercial (retail) beyond. Use Permit 3485A (Newpon Beach Brewing Co.) August 5, 1999 Page e 2 `- AJ 7 . Points and Authority Environmental Review (California Environmental Ouality Act) It has been determined that the project is categorically exempt under Class 1 (existing facilities). Conformance with the General Plan The Land Use Element of the General Plan designates the site for "Retail and Service Commercial' uses. Restaurants are permitted uses within this designation. Conformance with the Zonina Code Eating and drinking establishments are permitted on the approval of a use permit in the SP -6 /SR District. • A use permit is required for any existing alcoholic beverage outlet seeking to change its type of retail liquor license with the Department of Alcoholic Beverage Control under the provisions of Chapter 20.89 of the Municipal Code. Use permit procedures and requirements are set forth in Chapter 20.91 of the Municipal Code. Background On February 18, 1993, the Planning Commission approved (6 ayes, 1 absent) Use Permit No. 3485 for a combination restaurant and brewpub. On March 8, 1993, the City Council approved the use permit in conjunction with an amendment to an existing off -site parking agreement that would have allowed the project to use 29 parking spaces in the Canney Village Municipal Parking Lot. On September 27, 1993, the City Council amended the use permit to reflect additional restrictions on the amount of net public area and the number of off -site parking spaces placed on the project by the California Coastal Commission[. Site Overview The project site is an 8,320 squuare foot parcel located at the southeast corner of the intersection of Newport Boulevard and 30r Street. The site is developed with a two -story, 7,876 square foot structure. On the first floor, the restaurant occupies approximately 3,244 square feet and the brewery occupies approximately 1,532 square feet. The 3,100 square feet of the second floor is used as office space. t The Coastal Commission was concerned that the use of 29 parking spaces in the Cannery Village Municipal Parking Lot would conflict with public use of these spaces during the day. Use Permit 3495A (Newport Beach Brewing Co.) August 5, 1999 Page 3 `f. /d $ The project site contains approximately 2,276 square feet of net public area. However, it is limited by conditions to 1,500 square feet of net public area prior to 5:00 p.m., Monday through Friday. The project site contains 2 on -site parking spaces and there is an off -site parking agreement for an additional 41 spaces in the surface parking lot on the abutting property (410 30`" Street). In addition, the project has access to 29 in -lieu parking spaces in the Cannery Village Municipal Parking Lot (426 30`h Street) after 5:00 p.m. Project Overview The applicant is requesting an amendment to the existing use permit to allow the restaurant/brewpub to go from beer and wine service only to full alcoholic beverage service (i.e., the sale of whiskey, rum, brandy, gin, and other distilled spirits). No modifications to the site plan, floor plan, elevations, or conditions of approval are proposed. Analvsis Under the provisions of the Alcoholic Beverage Outlet (ABO) Ordinance, an amendment to an existing use permit is required when an alcoholic beverage outlet changes its type of retail liquor license with the Department of Alcoholic Beverage Control (ABC). In this case, the change is from a Type 23 (Small Beer Manufacturer) to a Type 75 (On -Sale General Brew -Pub). The ABO Ordinance requires that the Planning Commission consider the following factors when approving a use permit: 1. Whether the use serves public convenience or necessity. 2. The crime rate in the reporting district and adjacent reporting districts as compared to other areas in the City. 3. The number of alcohol licenses per capita in the reporting district and in adjacent reporting districts as compared to the county -wide average. 4. The numbers of alcohol - related calls for service, crimes or arrests in the reporting district and in adjacent reporting districts. 5. The proximity of the alcoholic beverage outlet to residential districts, day care centers, park and recreation facilities, places of religious assembly, and schools. The project site is located within Police Reporting District No. 15 and within Census Tract No. 635.00. The charts below present 1997 data (most current available) related to factors 2, 3 and 4. Public Convenience or Necessity. Current City Council policy provides criteria for situations when the public convenience or necessity will not be served. However, this policy is only applicable to bars, cocktail lounges, cabarets, and nightclubs. Since the proposed project will not Use Permie 3485A (Newport Beach Brewing Co.) August 5, 1999 Page 4 A contain any of these uses, there is no policy requiring a finding that the proposed project does not serve the public convenience or necessity. Currently, there are 24 on -sale establishments providing full alcoholic beverage service in the area (see Table 1 below). However, the project is the only brewpub in the City. Therefore, the convenience of the public can arguably be served by the sale of distilled spirits in a restaurant/brewpub setting. It can also be argued that are an abundance of establishments providing full alcoholic beverage service in this area and that the public convenience or necessity would not be served by the addition of another. Both views must be balanced by the other four factors to be evaluated by the Planning Commission for this use permit. Based upon all the information assessed in these factors, the Planning Commission may determine whether this approval is necessary to serve the public convenience or necessity. Table 1 Full Alcoholic Bevera a Service Licenses Subject Adjacent Adjacent ABC License Type Reporting Reporting Reporting DistrictNo.15 DistrietNo.13 District No. 16 Type 21 4 1 1 Part 1: 21 6 2 -Type47 Type 48 3 0 0 TOTAL: 28 7 3 Type 21 = Off -Sale General (grocery stores, convenience markets, etc.) Type 47 = On -Sale General for Bona Fide Public Bating Place (restaurants). Type 48 = On -Sale General Public Premises (bars and cocktail lounges). Crime Rate. The crime rate in Reporting District No. 15 currently exceeds the citywide crime rate by over 258% (see Table 2 below). Reporting Districts No. 13 and No. 16 are adjacent and also have crime rates that are above the citywide crime rate. The Police Department notes that during the first six months of 1999, reported offenses citywide for driving under the influence and drunkenness increased 19 %, when compared to the same period in 1998. Actual arrests for all offenses citywide only increased 8.8 %. Table 2 Crime Rates and Arrests Subject Adjacent Adjacent City-Wide Reporting Reporting Reporting District No. 15 District No. 13 District No. 16 Crimes Part 1: 3,370 354 121 177 Part 2: 1300 749 132 253 Crime Rate: 4J80.14 12343.10 5.620.07 6,941.18 Arrests Total Arrests: 3,562 951 131 270 Alcohol - Related: 1 44.19% 64.67 % 40.4697 1 52.96% "Part 1 Crimes" are homicide, forcible rape, robbery, aggravated assault, burglary, larceny - theft, auto theft, and arson. All other crimes are "Part 2 crimes." The "Crime Rate" the number of crimes per 100,000 people. "Alcohol- related arrest" means the offender had been drinking prior to the incident for which they were arrested. Use Permit 3495A (Newport Beach Brewing Co.) August 5. 1999 Page 5 y- Under the provisions of Section 23958.4 of the California Business and Professions Code, one of the conditions that constitutes an "undue concentration" of licenses is crime statistics that exceed the citywide average by 20 %. The ABC is required to deny the application for the license unless the Police Department (as authorized by City Council Policy K -7) determines that public convenience or necessity would be served by its issuance. The Police Department has reviewed the proposed project and has stated that they have no serious concerns with the current operation. However, the Police Department also has stated that the project must be considered in light of the larger issue of the intensification of alcohol and related uses on the Balboa Peninsula, especially in the Cannery Village area, which has experienced resident complaints regarding alcoholic beverage outlets. The Police Department believes that this demonstrates the disproportionate impact alcohol related offenses continues to have on their workload and on the quality of life in the community. Therefore, the Police Department cannot endorse the proposed intensification of the ABC license and land use. Over Concentration. Census Tract 635.00 currently has a ratio of alcoholic beverage licenses to population that is above the average ratio of Orange County (see Table 3 below). Census Tract 628.00 is adjacent and also has a ratio of alcoholic beverage licenses to population that is above the average ratio of Orange County. The ratio of alcoholic beverage licenses to population also constitutes an "undue concentration" of licenses under the provisions of Section 23958.4 of the California Business and Professions Code. Therefore, the ABC is required deny the application for the license unless it is determined that public convenience or necessity would be served by its issuance. The Police Department is especially concerned about the concentration of ABC licenses on the Balboa Peninsula. Therefore, the Police Department is recommending that the proposed project be reviewed against the greater issue of intensifying alcohol usage on the peninsula. Table 3 Ratio of ABC Licenses to Population Projected Census Tract Census Tract Based on No. 635.00 No. 628.00 Orange County average 1990 Population: 6,182 4,959` e ; ABC Licenses: On -sale licenses 46 t9 7 (1 per 134 persons) (I per261 persons) (1 per 893 persons) Off -sale licenses 9 6 4 (I per 686 persons) (1 per 826 persons) (I per 1,533 persons) Alcohol - Related Arrests. Alcohol related arrests means the offender had been drinking prior to the incident for which they were arrested. There were 951 arrests in Reporting District No. 15 during 1997 as compared to the 3,562 arrests citywide. Of the arrests made in Reporting District No. 15, 65% were alcohol- related, while 44% of the arrests citywide were alcohol- related. Reporting Use Permit 3485A (Newport Beach Brewing Co.) August 5. 1999 Page 6 v A �: // JI District No. 13 and No. 16 are adjacent. Reporting District No. 13 had alcohol- related arrests percentages that were slightly below the citywide percentages (41 %) and Reporting District No 16 had alcohol- related arrests percentages that were above the citywide percentages (53 %). At public hearings for other projects in the Cannery Village area, residents and business operators have reported a pattern of public nuisance behavior. Generally, this behavior is conducted by patrons of area restaurants and bars as they arrive, depart, or travel between establishments. The ABO Ordinance requires that the applicant take reasonable steps to discourage and correct objectionable conditions that constitute a nuisance in parking areas, sidewalks, alleys and other areas during business hours. However, in this area, with a high number of alcoholic beverage outlets, it is difficult to determine which establishment is responsible for public nuisance behavior in public areas. Adjacent Uses. There are no day care centers, park and recreation facilities, places of religious assembly, or schools in the immediate vicinity of the project site. However, the project is located in a mixed commercial - residential zoning district and there are residential dwelling units on 30 "' Street, directly across from the project site. Therefore, there is always the potential for impacts to the residents associated with patrons arriving and departing from the project site. However, the Police Department has stated that they are not aware of disturbances originating from the project site. Recommendation Section 20.91.035 of the Municipal Code provides that in order to grant any use permit, the Planning Commission shall find that the establishment, maintenance or operation of the use or building applied for will not, under the circumstances of the particular case, be detrimental to the health, safety, peace, morals, comfort, and general welfare of persons residing or working in the neighborhood of such proposed use or be detrimental or injurious to property and improvements in the neighborhood or the general welfare of the City. The facts in this case support a finding that the proposed use would be detrimental to the area because the public convenience or necessity would not be served by the proposed change in Alcoholic Beverage Control license type to allow full alcoholic beverage service. The number of alcohol - related arrests and the over- concentration of alcoholic beverage outlets in the area would also support this finding. The findings for denial are provided as Exhibit "A." The Planning Commission could find that the issues normally associated with eating and drinking establishments have been addressed by the current conditions of approval, and the introduction of full alcoholic beverage service is not expected to change this situation nor be detrimental to the surrounding land uses. If the Planning Commission takes this action, the Police Department is recommending a new condition advising the applicant that a special event permit is required for events or promotional activities outside the normal operational characteristics of establishment. Also, staff has updated the original conditions of approval to remove conditions that are no longer applicable (i.e., those relating to the building's construction) and to add standard City requirements. The findings for approval and recommended conditions are provided as Exhibit "B." 1 Use Permit 3485A (Newpon Beach Brewing Co.) August 5. Page ge 7 7 (0/2 Zv2 Submitted by: PATRICIA L. TEMPLE Planning Director fliti. . ) I Attachments: Prepared by: PATRICK J. ALFORD Senior Planner 1. Exhibit "A" (findings for denial) 2. Exhibit "B" (findings and conditions for approval) 3. Applicant's project description and justification. 4. Census Tracts Map. 5, Reporting Districts Map. 6. Site plan and floor plan. Use Permit 3485A (Newport Beach Brewing Co.) August 5, 1999 Page 8 ' {�� FINDINGS: EXHIBIT "A" FINDINGS AND CONDITIONS FOR DENIAL FOR USE PERMIT NO. 3485 (AMENDED) The proposed project is located in Police Reporting District No. 15, which has a crime rate that exceeds the citywide crime rate by over 259 %. This constitutes an "undue concentration" of licenses under the provisions of Section 23958.4 of the California Business and Professions Code. 2. The proposed project is located in Census Tract 635.00, which has a ratio of alcoholic beverage licenses to population that is above the average ratio of Orange County. This constitutes an "undue concentration" of licenses under the provisions of Section 23958.4 of the California Business and Professions Code. 3. The public convenience or necessity would not be served by the granting of the amendment to Use Permit No. 3485 to allow a change in Alcoholic Beverage Control license type to full alcoholic beverage service because of the undue concentration of licenses in the area. 4. Due to the undue concentration of alcoholic beverage outlets and their impact on the Cannery Village area, and because the public convenience or necessity would not be served, the proposed project would be detrimental to the health, safety, peace, morals, comfort, and general welfare of persons residing or working in the neighborhood of such proposed use and would be detrimental or injurious to property and improvements in the neighborhood or the general welfare of the City. EXHIBIT `B" FINDINGS AND CONDITIONS FOR APPROVAL FOR USE PERMIT NO. 3485 (AMENDED) FINDINGS: 1. The Land Use Element of the General Plan designates the site for "Retail and Service Commercial" uses and a restaurant/brewpub is considered a permitted use within this designation. 2. The project is located within the Cannery Village/McFadden Square Specific Plan (SP -6) - Specialty Retail (SR) District that permits eating and drinking establishments with a use permit. 3. On -sale alcoholic beverage outlets are permitted with the approval of a use permit. 4. This project has been reviewed, and it has been determined that it is categorically exempt from the requirements of the California Environmental Quality Act under Class 1 (Existing Facilities). 5. The approval of the amendment to Use Permit No. 3485 to allow a full on -sale alcoholic beverage service will not, under the circumstances of the case, be detrimental to the health, safety, peace, morals, comfort and general welfare of persons residing or working in the neighborhood or be detrimental or injurious to property or improvements in the neighborhood or the general welfare of the City, for the following reasons: The restaurant/brewpub use is compatible with the surrounding commercial and nearby residential uses since eating and drinking establishments are typically allowed in mixed commercial districts. Conditions have been added to address potential problems associated with traffic, parking, trash disposal, odors, and unsightly conditions. A Condition has been added to require a special events permit for any event or promotional activity outside the normal operational f this restaurant business. b. The proposed project is consistent with the purpose and intent of Chapter 20.89 of the Zoning Code (Alcoholic Beverage Outlets) for the following reasons: • The convenience of the public will be served by the sale of distilled beverages in a restaurant/brewpub setting. The project is in an area where the crime rate exceeds the citywide average by more than 20 %. However, there is no evidence that this high crime rate is attributable to the proposed project. • The number of alcohol licenses per capita in the reporting district and adjacent reporting districts is above the average for Orange County. However, the project has the only alcohol license for a brewpub, and the convenience of the public can be served by the sale of distilled spirits in a restaurant/brewpub setting. The percentage of alcohol- related arrests in the reporting district in which the project is proposed and in the adjacent reporting district is higher than the percentage of alcohol - related arrests citywide. However, there is no evidence that the alcohol- related arrests are attributable to the project. • No day care centers, places of religious assembly, park and recreation facilities, or schools are located in the vicinity of the project site. Residential uses are located in the vicinity of the project site. However, the project has been conditioned so as to address any potential impacts. CONDITIONS: 1. The proposed development shall be in substantial conformance with the approved site plan, floor plan and elevations, except as noted below. 2. That a covenant or other suitable, legally binding agreement shall be recorded against the off -site parking lot assuring that all of the requirements of Section 20.63.080 (I) of the Municipal Code, will be met by the current and future property owners. Said covenant or agreement may include provisions for its future termination at such time as the development on the building site is removed or at such time as the floor area devoted to the restaurant/brewpub reverts back to a base FAR use. 3. The applicant shall provide a minimum of one parking space for each 50 square feet of net public area before 5:00 p.m. and one parking space for each 40 square feet of net public area after 5:00 p.m. in conjunction with the restaurant/brewpub. 4. An amended off -site parking agreement shall be approved by the City Council, guaranteeing that a minimum of 41 parking spaces shall be provided on property iii [_/_ // 6 , located on Lots 18 -21 and portions of Lots 17 and 22, Block 230, Lancaster's Addition, for the duration of the existing and proposed uses located on Parcel 1, Parcel Map 92 -40 (Resubdivision No. 527). 5. The property owner shall pay for 29 in -lieu parking spaces in the Cannery Village Municipal Parking Lot on an annual basis for the nighttime operation (after 5:00 p.m.) of the restaurant/brewpub use as agreed upon by the Sales Agreement between the City of Newport Beach and the property owner. 6. The net public area of the restaurant/brewpub, which is devoted to daytime use Monday through Friday (prior to 5:00 p.m.) shall be limited to 1,500 square feet. The balance of the net public area shall be physically closed off to the public by a fixed barrier and shall not be used until after 5:00 p.m. daily. 7. The hours of operation for the restaurant/brewpub shall be limited to the hours between 6:00 a.m. and 11:00 p.m. Sunday through Thursday and between 6:00 a.m. and 2:00 a.m. on Friday and Saturday. 8. All employees shall park either in the privately owned off -site parking area or in one of the municipal parking lots in the area. 9. The operation of the brewery and the service of alcoholic beverages shall be ancillary to the primary food service operation of the restaurant. 10. The approval of this use permit is for a restaurant/brewpub and shall not be construed as the approval of a bar, cocktail lounge, or other use serving alcoholic beverages during hours not corresponding to regular meal service hours (food products sold or served incidentally to the sale or service of alcoholic beverages shall not be deemed as constituting regular meal service) nor as the approval of a cabaret, nightclub, or other use with the principal purpose of providing live entertainment and/or dancing. 11. No outdoor loudspeakers or paging system shall be permitted in conjunction with the proposed location. 12. A washout area for refuse containers shall be provided in such a way as to allow direct drainage into the sewer system and not into the Bay or storm drains, unless otherwise approved by the Building Department. 13. Kitchen exhaust fans shall be designed to control smoke and odor to the satisfaction of the Building Department. 14. All mechanical equipment and trash areas shall be screened from surrounding public streets and alleys and adjoining properties. 15. The development standards regarding walls surrounding the restaurant site and underground utilities shall be waived. iv y /l7 16. Should prerecorded music be played within the restaurant facility, such music shall be confined to the interior of the building, and all doors and windows shall be kept closed while such music is played. 17. A special events permit is required for any event or promotional activity outside the normal operational characteristics of this restaurant business 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. 18. Should this business be sold or otherwise come under different ownership, any future owners or assignees shall be notified of the conditions of this approval by either the current business owner, property owner or the leasing company. STANDARD CITY REQUIREMENTS: A. The project is subject to all applicable City ordinances, policies, and standards, unless specifically waived or modified by the conditions of approval. B. Signs and displays shall not obstruct the sales counter, cash register, seller and customer from view from the exterior. C. Loitering, open container, and other signs specified by the Alcoholic Beverage Control Act shall be posted as required by the ABC. D. The applicant shall take reasonable steps to discourage and correct objectionable conditions that constitute a nuisance in parking areas, sidewalks, alleys and areas surrounding the alcoholic beverage outlet and adjacent properties must be taken during business hours if directly related to the patrons of the subject alcoholic beverage outlet. E. The exterior of the alcoholic beverage outlet 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. F. All owners, managers and employees serving and/or selling alcoholic beverages shall undergo and successfully complete a certified training program in responsible methods and skills for serving and selling alcoholic beverages. To qualify to meet the requirements of this section a 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. v G. The project will comply with the provisions of Chapter 14.30 of the Newport Beach Municipal Code for commercial kitchen grease disposal. H. All signs shall conform to the provisions of Chapter 20.67 of the Municipal Code. I. This use permit for an alcoholic beverage outlet granted in accordance with the terms of this chapter shall expire within 12 months from the date of approval unless a license has been issued or transferred by the California State Department of Alcoholic Beverage Control prior to the expiration date. J. Coastal Commission approval shall be obtained prior to issuance of any building permits. K. The Planning Commission may add to or modify conditions of approval to this variance upon a determination that this variance causes injury, or is detrimental to the health, safety, peace, morals, comfort, or general welfare of the community. vi 1� PART IV: (Continued) B. Project Description and Justification When the Newport Beach Brewing Company (NBBC) opened four years ago it was one of the first "breweries" in Orange County and, if for no other reason, did well due to the uniqueness of being a restaurant/bar that brews its own premium beer on -site. We at the NBBC are proud of the quality track record we have established for quality food, friendly service, as well as, our award winning beers. However, now there are approximately sixteen breweries in the county and therefore, over the past couple of years the uniqueness /trend of the "brewery" concept has faded. In an effort to remain competitive NBBC management has consistently made adjustments and improvements to its operation to attract a broadened customer base. We have from day one attempted to be more of a restaurant than a "bar ". We look to continue that trend by offering an even more upscale menu to complement items like the New York Sirloin, Seared Ahi Salad and the Cioppino that we currently serve. As we have begun to upgrade our menu we have noticed we receive a lot more requests for cocktails and after dinner drinks (e.g. martini, Irish coffee etc.). Therefore, we now feel it is necessary to apply for an ABC No. 75 alcohol license, in order to satisfactorily serve our broadened customer base. We want to be able to offer a greater variety of beverage choices for all our customers at both lunch and dinner. It may be worth noting that when the brew /pubs concept first came about in California, there was a state law that prohibited brew /pubs from serving alcoholic beverages other than beer and wine. Since that time, it has become apparent that there is no need for such a restriction to be placed on breNv /pubs and therefore, the state has repealed that law. We want to be perfectly clear that we are not looking to implement any drastic changes to our existing format. We are not and do not have any desires to become a nightclub, dance club or the like. That is not who or what the NBBC is or will ever be. We at the NBBC plan to build upon our existing clientele base, which includes a diverse mix of both younger professionals and older patrons of which most are locals. During the summer of course we also attract many of the peninsula's visitors. The NBBC is a local eatery that is simply attempting to cater to the desires of a broader base of clientele, by upgrading our menu. We feel confident that the additional alcohol beverage service will help compliment our expanded menu and keep the NBBC competitive. As a result the Newport Beach Brewing Company will continue to be one of the most fun and friendly places on the peninsula for residents and visitors alike to eat, drink and socialize. I I I- - I . I - I .. • 114 � Z • , City of Newport Beach Planning Commission Minutes August 5, 1999 INDEX SUBJECT: Newport Beach Brewing Company Item No. 1 2920 Newport Boulevard Use Permit No. 3485 A • Use Permit No. 3485 (Amended) An amendment to an, existing use permit to allow a change in Alcoholic Denied Beverage Control license type to allow full alcoholic beverage service. Senior Planner Patrick Alford noted the following: • The application is for a change from a Type 23, Small Beer Manufacturer to a Type 75, On Sale General Brewpub. Under the provisions of the Alcoholic Beverage Outlet Ordinance, it requires an amendment to the existing use permit. • The Planning Commission must consider these factors: use serves public convenience or necessity; the crime rate in the reporting district; the number of alcoholic licenses per capita within the reporting district; the number of alcohol related calls for service, crimes and arrests within the reporting district and the proximity of the alcohol beverage outlet to residential districts, day care centers, park and recreation facilities; basic religious assemblies and schools. • The issue of public convenience or necessity - there are currently 24 on -sale establishments providing full alcohol service in the area. However, the project is the only brewpub in the City. • The issue of crime rate in the reporting district - significantly exceeds the citywide average. Under state law, this constitutes an undue concentration of licenses and the Alcohol Beverage Commission is required to deny the application unless the City determines that the public convenience or necessity is served by the issuance of the license. The Police Department has reviewed the project and recommends that the Planning Commission review the application in light of the larger issue of the intensification of alcohol and related uses on the Balboa Peninsula, especially in the Cannery Village area. — • The issue of over - concentration - the number of alcoholic beverage licenses per capita in the Census Tract 635.00 exceeds that of the County. This also constitutes undue concentration under state law. The ABC is required to deny the application unless the City determines that the public convenience or necessity is served by the issuance. • The issue of alcohol related arrests - in the Police Reporting District No. 15, 65% of the arrests in the area are alcohol related which compares to 44% of such arrests citywide. • The issue of adjacent uses - it is a mixed commercial residential zoning district and there are residential units across 30th Street. There is always the potential of impacts to residents. Concluding, Mr. Alford noted that the facts support the finding that the use would be detrimental to the area because the public convenience or necessity would not be served by the proposed ABC license change. Also, 2 >� y. /z3 City of Newport Beach Planning Commission Minutes August 5, 1999 due to the large number of alcohol related arrests in the area and to the over - concentration of alcohol beverage outlets in the area, this use would be detrimental to the area. However, the Planning Commission could also find that the issues have been adequately addressed by the current conditions of approval and the change in license type may not necessarily effect that operation. The public convenience or necessity could be served by the sale of distilled spirits in a restaurant brewpub setting. Commissioner Fuller noted that it is stated in the staff report that the Police Department has reviewed the proposed project and has no serious concerns with the current operation. Does that mean the existing operation with the existing liquor license or the proposed operation? Referencing Page 5, Table 1 he also asked what the units of comparison were per capita. Mr. Alford answered that it deals with the past operation and with what occurred in the past. The way the Alcohol Beverage Ordinance is set up, the concentration issue is addressed by way of a Census Tract, The information is not necessarily at a Reporting District level Assistant City Manager, Sharon Wood added that the population ratio is shown on Table 3, Page 6, that is by Census Tract which is a different geographic area. Mr. Alford added that the area is a mixed use, the population is relatively low compared to other areas on the peninsula, so that the number of licenses in that area to the ratio of population is fairly high. He further added that District No. 13 has more residential, there is very little if any, commercial. In District No. 16, it is predominately residential with some commercial. Commissioner Kranzley clarified with staff that Census Tract No. 635 added to Census Tract No. 628 would represent-the entire population of the peninsula. Chairperson Selich asked the percentages of restaurant versus brewery pub? He was told that there are 3,244 square feet on the first floor, and the brewery occupies approximately 1,500 square feet of that. He then asked what the original intent of how the operation was going to be run. Planning Director Patricia Temple answered that the intent of the operation as originally presented was to be a restaurant with a brewpub, where they actually did on -site brewing of custom beers. It was predominately to be used as a restaurant, certainly alcohol was a feature of the operation as that was their niche in the market. It has been run primarily as a restaurant. Commissioner Kranzley noted that taking the entire population on the peninsula by adding Census Tracts 635 and 628, the population is 11,141 with 65 on sale licenses which is still 1 per 171 persons on the peninsula. 3 INDEX City of Newport Beach Planning Commission Minutes August 5, 1999 Mrs. Wood noted that the state law mandates that comparisons should be made to the average of the County, which for on sale licenses is 1 per 893 persons and we are at 1 per 171 persons which represents a significant difference. Ms. Clauson noted that the operation was also conditioned in the original use permit that require the service of alcohol as ancillary to the restaurant business and that there is no approval for any type of bar or nightclub. Chairperson Selich asked if other businesses such as this in other communities typically have hard liquor service? Staff answered that one approved in Manhattan Beach similar to this project was recently approved with full alcoholic beverage service. Commissioner Tucker added that one across from the UCI in the Irvine Market Place has a full liquor license. Public comment was opened. Sean Niedelman, operations manager of the Newport Beach Brewing Company noted: • This is an established restaurant that also brews its own beer, catering to all types of customers. • The restaurant has been looking for ways to improve service and acquiring this liquor license is one of those ways. • The current menu offers variety of foods resulting in food sales of 65% of totalsales. • The restaurant is losing customers due to lack of cocktail service. • We want to compliment the enhanced menu and capture a more diverse clientele byocquiring.this license. At Commission inquiry, Mr. Niedelman answered that they are applying for a new license. Captain Tim Newman of the Police Department commented that it is the Police Department's position that there already is a significant impact in this general area of the peninsula due to alcohol consumption. The Police Department is not comfortable advocating a change one way or another and felt that would be something most appropriately handled by this policy making level of government. The Police Department wanted the Planning Commission to address that specific issue. All the statistics used by staff came from the police records and indicates that the police do have a problem and it does effect our level and volume of DUI's and alcohol related offenses that occur in this area. In answer to Commission inquiry, he added that it is difficult to predict if a change in the license from beer to hard liquor would make a 4 INDEX y �2s City of Newport Beach Planning Commission Minutes August 5, 1999 difference. It depends on the operator. The City has bars with a wide variety of conditions and restrictions on their ability to conduct business and some the Police Department has chronic and current problems with and others never have problems. The Police Department doesn't have problem that end up being detrimental to the community, with an operator whose staff is well trained and who runs a good operation. In this particular case we are dealing with a land planning issue and since this will be with the property, regardless of who the operator is, the Police Department is not in a position to say what this operation will be like in the future. Since the first of the year, the police have arrested 941 individuals for either DUI or who were drunk in public. Of that number, 375 of those individuals were in this Reporting District No. 15. This district is the area between 20th Street to 32nd Street, between the ocean and the Rhine Wharf/Lido Peninsula area inclusive. It has always been a very active area of the City. In response to where they have been drinking, the 681 who responded only 5 of them said they had been consuming alcohol at this establishment. Stepping up from a beer license only, to a full alcoholic beverage service can step up the number of incidents, but it depends on the operator and how he handles his staff. Commissioner Kranzley asked about the number of responses (681) where were they drinking and how many of those bars were on the peninsula? He was answered that the greatest response had to do with people who were drinking at a private party, 193 were drinking at locations outside the City, 32 said they were drinking at home. Continuing, Commissioner Kranzley noted the following: • 40% of the DUI's and drunk in public has to do with alcohol on the peninsula. • A year ago, we added a policeman that basically covered Cannery Village. Is that 40% consistent with prior years? Is the 375 up because we have greater enforeament in the area? Captain Newman answered that over the last several years, the crime rate has continued to diminish. As a result of that, the officers have more time to do other things. Resulting from that efficiency, the officers can be and are more proactive to deal with problems. The additional efforts put into Cannery Village last year involved a police presence on 3 -4 nights on a weekend. In Reporting District 15, 488 said they were drinking in town and 300 of those were drinking in this area. Commissioner Kranzley asked if the officer being in the Cannery Village area helped? He was answered that it helped by providing crime deterrence with a police presence. The private security guards are no longer being funded. Chairperson Selich asked if the police department view this business primarily as a restaurant, to which he was answered, yes. 5 INDEX M City of Newport Beach Planning Commission Minutes August 5, 1999 Commissioner Tucker noted that there seems to be so many licenses in this district that if you converted one from beer and wine to full alcohol, you are not making available a produce that is not already available in the district. Does it really make a difference? Captain Newman stated that is a decision that the Planning Commission is going to have to make. In this particular case, the police have not had a problem with this operator under the current conditions. Buzz Person, 507 241h Street noted that he has been an advocate for this establishment and is a current customer. This proposed application is a land use issue and has nothing to do with the operator. The City Council has indicated in recent actions taken that there is a problem in this particular area. The switch from beer and wine to hard alcohol is an intensification of use. While this operator is a good operator, I would be concerned with what might come down later on. Two years ago in the Village, there were a lot of problems. Since then, things have gotten much better. Part of that is due to action taken by the City Council and the Police Department. What the residents don't want is to have an unbearable living environment. Things are much better today. Chairperson Selich asked about the approval for Aubergine's conversion from beer and wine to full service alcohol and the difference between that and this project. Ms. Temple noted that the Aubergine restaurant has more limited hours of operation and is a much smaller establishment. There is no area within the restaurant set aside exclusively for the consumption of alcohol. The Newport Brewing Company, while primarily a restaurant, has an area where alcohol is consumed more.exclusively. Mike Madlock, 113 31st Street, Vice President of Newport Beach Brewing Company noted the following: • Most of the new brewpubs are opening up with full liquor license, which is something that we could not do when we opened up 4 and %] years ago. • As a local resident, I want to keep peace in the neighborhood. One of the problems that existed in the past is being taken care of with the closing of Snug Harbor and the Cannery Restaurant. • We have no pool tables and no entertainment. • This is a clean operation and concluded by encouraging the Planning Commission to approve this application. Commissioner Fuller clarified with staff that wine was allowed under the existing license. INDEX h� City of Newport Beach Planning Commission Minutes August 5, 1999 Keith Vohr, 415 Town Square Lane, Huntington Beach noted the following as a share holder of the Newport Beach Brewing Company: • Agrees with concerns mentioned in previous testimony. • The issue of undue concentration is moot. We are not adding a new license in the area, rather, we are asking to modify an existing license. • We are a small subset of District 15. • The issue of crime with 5 arrests out of 680 is approximately 0.7 %. We are a good operation as shown by the numbers. • The idea of adding alcohol service is to stay competitive and improve the restaurant. • The convenience is for those in the neighborhood. • We have had no protests from the mailings. • The hours are from 11 a.m. to 1 a.m. on the weekends and 11 a.m. to 11 p.m. during the week. • All of the staff is ABC trained. • We are in compliance with zoning regulations as we exist now. • There will be no special events or promotions at the restaurant. Roz Salomony, 2600 Newport Boulevard. President of the Newport Beach Brewing Company noted the following: • The people who spoke before me operate the brewery. • We have been successful from the time the pub was opened. • As we grew into a restaurant, we find that our guests are seeking other flavors with their dinner. • We are asking for the alcohol to compliment these new requests. • 1 live in the area of the brewery and will do everything possible to maintain harmony. At Commission inquiry, Mr. Alford noted that the current condition of closing hours is until 2:00 a.m: Friday and Saturday, which was approved in 1993 by the City Council. However, the ABC license does restrict them to 1:00 a.m. closing on Friday and Saturday. Public comment was closed. Commissioner Kranzley noted that the Peninsula and specifically the Cannery Village have been an issue for a number of years. Citizens. Police Department and restaurants have spent a lot of time on trying to fix the problems in Cannery Village. As the Chairman of the Commission when it passed Bill Hamilton's Cannery Restaurant live entertainment and dancing. I voted in favor of that after offering a condition that required the addition of a policeman to walk that beat and that would be funded by the applicant. The Planning Commission decision was overturned by the City Council. That sent a message to me, as well as the Alcohol Beverage Ordinance that was passed, that the City Council was serious about fixing the issues on the INDEX d� City of Newport Beach Planning Commission Minutes August $, 1999 peninsula that account for 40% of the arrests for DUI and drunk in public for the entire City. The concentration on the peninsula will not be increased but it would be intensifying a license because of the over concentration of alcohol serving establishments on the peninsula. The ABC has made it clear that they have to deny the application for the license unless it is determined that the public convenience or necessity would be served by this issuance. We have a number of establishments that serve liquor on the peninsula, and I don't believe we can find that the public convenience or necessity would be served by this upgraded license. The operator is a good operator, but this use and what we do tonight will run with the land. The next operator may not be as conscientious as this operator. I am not in favor of this application. Commissioner Fuller stated he was not in favor of this application due to the statistics presented specifically: • the 24 on -sale full alcohol service licenses in this area, • the crime rate that exceeds the City crime rate by 258 %, • the alcohol licenses per capita at 1 per 134 persons, whereas the County is 1 per 893 persons, • the alcohol related calls for service is 65% in this District and 44% city -wide • concern for the residential standard of living Continuing, he noted that he was around during the Cannery Restaurant discussion and it was very apparent that the residents in this area were most concerned with these alcohol- reloted problems. It would intensify problems that may exist if this application was approved. I like the concept of the brewing company and that is the use that was approved. Commissioner Tucker stated that Newport Beach is a visitor serving community and always has been. Comparisons to what the alcoholic beverage license is in other communities are not germane to our community. Switching the license will not make much difference; there are plenty of places for hard liquor. The addition of another location would not create more opportunities to drink when there are plenty of opportunities virtually next door. I believe it would serve the public convenience or necessity and therefore I support this license conversion. Chairperson Selich noted that if this is primarily a restaurant and we give the full alcohol service to other restaurants, it seems somewhat discriminatory to me to single this use out and say we are not going to give them a full service alcohol permit. Again, thinking back to Aubergine realizing that there is a difference in scale, etc. the permit runs with the land. Another operator could come in and intensify that use. if we had a policy that we were going to hold the number of licenses fast within the area and people could trade the licenses around; I might feel more comfortable. Discussion on Aubergine by staff noted that if the bar or any area exclusively 8 INDEX 102? City of Newport Beach Planning Commission Minutes August 5, 1999 would need a new use permit. Right now, there is only about 15 square feet. Commissioner Kranzley stated that comparing these two facilities is not a fair comparison, especially if there was intensification at Aubergine's it would come before the Planning Commission and I would not be in favor of it. Commissioner Tucker noted that at what point do you stop being a restaurant and start trending towards a bar. Is it proper to zero in on percentage of alcohol sales and how do you enforce that Ms. Clauson answered that it is in the Code as far as a definition of a bar and how it operates. There are already conditions on the use permit that specifies the primary use has to be as defined in the Code and is with the service of alcohol as ancillary. We have an enforcement mechanism, the percentages of food service to alcohol service as one of the factors considered in the enforcement method. They have to report this information as part of the ABC license requirement. Commissioner Kranzley stated that there is also a land use issue in this area. There is a concentration of alcohol and liquor licenses, and it has caused problems and is currently causing problems. We are going to be losing a license there and maybe a second. This over - concentration has caused a burden on the residents as well Os the Police Department. I don't get a sense that there is an economic issue and I don't think this is the time for us to be considering changing any liquor licenses. Chairperson Selich noted that the Council has spoken on the issue of alcohol service in the area and the intensification of license. I would like same kind of policy that would restrict the number of license and allow transference of the licenses within the area. I will support the staff recommendation. Motion Haas made by Commissioner Kranzley to deny the amendment of Use Permit No. 3485 A subject to the findings contained in Exhibit A. Ayes: Fuller, Selich, Kranzley Noes: Tucker Absent: Ashley, Gifford, Hoglund Abstain: None FINDINGS: Exhibit "A" FINDINGS FOR DENIAL FOR USE PERMIT NO. 3485 (AMENDED) The proposed project is located in Police Reporting District No. 9 INDEX �f.l3o City of Newport Beach Planning Commission Minutes August 5, 1999 The proposed project is located in Police Reporting District No. 15, which has a crime rate that exceeds the citywide crime rate by over 258 %. This constitutes an "undue concentration" of licenses under the provisions of Section 23958.4 of the California Business and Professions Code. 2. The proposed project is located in Census Tract 635.00, which has a ratio of alcoholic beverage licenses to population that is above the average ratio of Orange County. This constitutes an "undue concentration" of licenses under the provisions of Section 23958.4 of the California Business and Professions Code. 3. The public convenience or necessity would not be served by the granting of the amendment to Use Permit No. 3485 to allow a change in Alcoholic Beverage Control license type to full alcoholic beverage service because of the undue concentration of licenses in the area. 4. Due to the undue concentration of alcoholic beverage outlets and their impact on the Cannery Village area, and because the public convenience or necessity would not be served, the proposed project would be detrimental to the health, safety, peace, morals. comfort. and general welfare of persons residing or working in the neighborhood of such proposed use and would be detrimental or injurious to property and improvements in the neighborhood or the general welfare of the City. Mock Residence Retaining Wail 1821 BoyadereTerrace • Modification Permit No. 4903 ��Cceptance of a Negative Declaration Request to permit the construction 20 foot hig h rear yard retaining wall which exceeds the permitted 6 foot heig 'mit in the side and rear setback areas. The proposed retaining wall is intended bilize an unsafe slope and reclaim a portion of rear yard lost due to erosion. The iningwall will reclaim approximately 21 feet of rear yard surface area pre 'Sly slope. In accordance with Section 20.33 of the Newport Beach Municip ode the approval of a modification permit is required for the height and location he proposed retaining wall. 10 INDEX Item No. 2 Modification Permit No. 4903 Negative Declaration Approved day mil. CITY OF NEWPORT BEACH http: / /www. city. newport- beach.ca.u...cil Agendas /Arcbive1999/Mn09- 13.btm everyone who agrees with him to write their Council Member. PUBLIC HEARINGS 16. STATUS REPORT ON DEVELOPMENT AGREEMENT NO. 6 (THE IRVINE COMPANY, CIRCULATION IMPROVEMENT AND OPEN SPACE AGREEMENT (CIOSA]) (contd. from 7/12/99 & 8/9/99). "Mayor O'Neil opened the public hearing. There 'being no testimony, Mayor O'Neil closed the public hearing. ". to determine compliance of No. Council Member Glov&,stated that she is pleased to see that staff followed through with,, her suggestions and that proper fences will be erected. The motion carried by the 'following roll call vote: Ayes: Adams, Glove Thomson, Debay, Ridgeway, Noyes, Mayor O'Neill Noes: None Abstain: None Absent: None 17. APPEAL BY THE NEWPORT BEACH BREWING COMPANY OF THE PLANNING COMMISSION'S DENIAL OF AN AMENDMENT TO USE PERMIT NO. 3485 TO ALLOW A CHANGE IN ALCOHOLIC BEVERAGE CONTROL (ABC) LICENSE TYPE TO ALLOW FULL ALCOHOLIC BEVERAGE SERVICE. Mayor O'Neil opened the public hearing. Keith Bohr, appellant, 415 Townsquare Lane, No. 219, Huntington Beach, stated that he is an investor in the Newport Beach Brewing Company and a consultant on the appeal. He requested that their use permit be amended to allow full alcohol service so that the Brewing Company can remain competitive with the other restaurants in the area. Referencing Exhibit A (Findings and Conditions for Denial), he reported that they represented only .07 percent of the crimes in Reporting District 15 (Finding 1); that they are not trying to add a license, but are just wanting to modify their existing license (Finding 2); that they have the support of the residents within 100 feet of the restaurant, generate tax revenue, provide 45 jobs, and is the only brewery in the City (Finding 3); and that they disagree with Finding 4 because of their track record over the past 4.5 years and because they would not contribute to any of the detriments mentioned. Mr. Bohr respectfully requested that 1 rMTKII C -2920 Development Agreement No. 6 CIOSA (38) Use Pe Newpo Brewin (88) �w 4/./.3-Z 01/21/2000 3:52 PM CITY OF NEWPORT BEACH 19 of 30 http: / /www. city. newport - beach. ca. u... cilAgendas /Archive 1999/Mn09- 13.htm Council approve the Conditions for Approval (Exhibit B). He emphasized that the Brewing Company is a permitted use and that approving this will not be detrimental to the City. In response to Council Member Ridgeway's questions, Senior Planner Alford confirmed that the use permit is specifically for a restaurant/brewpub; that, if the Brewing Company fails, the new operator is obligated to run a restaurant/brewpub under the terms and conditions of the conditional use permit; and that the Newport Beach Brewing Company is the only brewpub in the City. Shawn Needelman, 46 Agostino, Irvine, Newport Beach Brewing Company Operations Manager, stated that he has been with the Brewing Company since it opened in April 1985. He emphasized that they are not a bar that serves food, but a restaurant that also brews its own beer; they do not have the lines that they used to; they do not have late night parties; they do not have a DJ, band, or any other form of live entertainment; and they do not have a small menu. However, he believed they have evolved into an established restaurant that caters to 20 year olds to seniors, couples and families. Mr. Needelman indicated that the Brewing Company is looking for something to improve itself and believed that acquiring the license does that. He reported that the menu is continually upgraded, that food sales have continued to make up a larger percentage of the gross sales, and that it makes up nearly 64 percent for this year's sales. He stated that the sales have leveled, are lower than they were last year, and they lose customers because they cannot provide what one or all the guests would like. Mr. Needelman believed that having the license will also benefit their regular customers because it will provide them with a choice. He clarified that they want to complement their enhanced food, wine, and special menu, and capture a more diverse clientele by acquiring this license. Council Member Glover indicated that she saw a statement that generally states that the Brewing Company will close if this does not occur. Mr. Needelman stated that they will not close tomorrow if they do not get the license; however, he reiterated that their sales are down and that they believe it could be attributed to them not being able to sell hard alcohol or spirits. Council Member Glover emphasized that only 4 Planning Commissioners were present at the meeting. Mr. Needelman believed that the Planning Commission probably denied their request because of the high concentration in Reporting District 15 and because they were not sure that adding this license would be beneficial to the Brewing Company or help the community in any way. He expressed the opinion that the license would allow the Brewing Company to improve the menu and reiterated that alcohol is needed to be competitive with other restaurants. Council Member Debay expressed concern with the concentration of bars in that area and that young people tend to jump from bar to bar during the summertime. This causes them V./33 01/21/2000 3: PPM CITY OF NEWPORT BEACH 20 of 30 http: / /www. city.newport- beach.ca.u...6LAgendas /Archive 1999/Mn09- 13.htm to walk in the streets late at night and disturb residents. She stated that she is concerned that the Brewing Company will be more of a target for the bar hoppers if they are a full service bar. Mr. Needelman reported that they card everyone that walks in the door, they have never had problems with under -aged drinking or arrests, the amount of drunk driving incidents involving the Brewing Company is very minimal, the employees attend alcohol class, and managers are on the floor at all times. He believed it would be a benefit if patrons stayed at their restaurant rather than jump from bar to bar. Charles Huffine 3085 Yukon Avenue, Costa Mesa, expressed support of the Brewing Company's request and stated that he and his wife have been frequenting the Brewing Company for the last year. He indicated that they initially were not sure if the Brewing Company was a place they wanted to go to; however, the clientele has drastically changed to become a very comfortable place for a weekly visit. He believed that the patrons now range in age from the high -20's to the 60's and that they bring in a larger number of families. Mr. Huffine encouraged Council to consider the Brewing Company's request to have a full service liquor license because it will give them an opportunity to continue to be a successful business. He noted that the Brewing Company draws a lot of people from out of state and from the local community, and hoped that they could become a landmark restaurant. David Haithcock, 500 Newport Center Drive, stated that he works for a national bank trade association and that he entertains clients as part of his job. He expressed that he likes the Brewing Company because it has turned into a landmark for the City. He reported that he takes his clients to the Brewing Company for lunch or dinner, but that it is unfortunate that they have to leave after their meal because they want an after- dinner cocktail. He expressed his support of the Brewing Company's request so that they can continue to prosper. Pua Huffine, 3085 Yukon Avenue, Costa Mesa, stated that she and her husband have been regular patrons of the Brewing Company for about a year. She indicated that she not only has gotten to know the employees, but has gotten to know people who also regard the Brewing Company as a home away from home. She stated that they not only find the establishment a great place to unwind, but a fine restaurant. Ms. Huffine reported that they never hesitate to bring friends, family, or business associates to the Brewing Company, or to recommend the restaurant as a premiere place. She believed that, if you are looking for something good about the City, the Newport Beach Brewing Company would be it. She stated that she has made it a personal goal to let everyone know that Newport Beach has many treasures; however, she would hate to see a place of value become a statistic because they could not stay competitive in a very competitive market. Ms. Huffine requested that Council reconsider this very reasonable request and allow the Brewing Company to continue to be hospitable hosts to their guests. Amy Anderson, 328 Fullerton Avenue, stated that she is an 01/21/2000 3:52 PM CITY OF NEWPORT BEACH 21 of 30 http: / /www.city.newport- beach.ca.u...6 Agendas /ArchiveI999 /Mn09- I3.htrn employee of the Brewing Company and read a fax that was sent to them by Robert J. Rosner of the Xerox Corporation. Mr. Rosner expressed his support of the Brewing Company's request to serve alcoholic beverages other than beer and wine. He indicated that he often takes customers to the Brewing Company and that the outing would be more enjoyable if he was able to offer them a cocktail before the meal. He added that the Brewing Company is a quality addition to the commercial establishments in the City. Michael Madlock, 113 31st Street, Vice President of the Newport Beach Brewing Company, hoped that the decision - makers have been to the Brewing Company since they have built a first class operation. He stated that the Brewing Company has been managed properly and would appreciate Council's support of the appeal. Orazio "Raz" Salmone, 2600 Newport Boulevard, No. 212, President of the Newport Beach Brewing Company, reported that he was one of the first breweries in the area and now there are 16 breweries. He noted that they no longer have lines and that he would rather build on the restaurant. There being no further testimony, Mayor O'Neil closed the public hearing. In response to Council Member Adams' questions, Mr. Borg clarified that the Brewing Company is not open until 2 a.m. because of an ABC condition which closes them at 1 a.m. on Fridays and Saturdays. Assistant City Manager Wood noted that Condition 10 indicates that the Brewing Company may not serve alcoholic beverages without serving the regular menu. Mr. Alford clarified that the Brewing Company always had a 2 a.m. closing time but ABC placed the 1 a.m. limit after the City approved them. Council Member Adams suggested that the condition be consistent with ABC's. Mayor O'Neil noted that page 1 of the staff report states that "...the ABC is required to deny the application for the license unless the City determines that public convenience or necessity would be served by its issuance." He expressed the opinion that the City is bound to follow ABC's denial unless they can find that the public's convenience and necessity requires its issuance. Ms. Wood reported that this is the State law that deals with areas where there is over - concentrations of liquor licenses and that Council Policy K -7 delegates that authority to the Chief of Police for most cases. She confirmed that the Police Chief could deny the license if he finds that there is no public convenience or necessity after Council approves it, but doubts he would do that. Additionally, since the City has a local alcoholic beverage outlet ordinance, one of the considerations for granting a use permit for a new or expanded alcoholic beverage outlet is to look at whether the public convenience or necessity is served. Motion by Council Member Glover to reverse the Planning Commission's denial of amended Use Permit No. 3485. y.i3s 01/21/2000 3:52 PM CITY OF NEWPORT BEACH 22 of 30 http://www.city.newport-beac.b.ca.0 ... cilAgendas/Archive I999/Mn09- 13.htm Council Member Glover believed that this is a reasonable request. She noted that she can go almost anywhere to find similar establishments and believed that Council has a responsibility to be competitive with other cities. She expressed the opinion that the Planning Commission might have felt the same way if all the Commissioners attended the meeting. Council Member Adams requested that Council Member Glover amend the motion to modify Condition 7 so that the hours of operation for Fridays and Saturdays is from 6 a.m. and 1 a.m. Council Member Glover agreed. Council Member Ridgeway stated that the staff report contained a lot of testimony from the Police Department, but believed that they were not comfortable advocating a change because the Brewing Company is in Reporting District 15. However, it appeared that the Police Department did not have a problem with an operator whose staff is well - trained and runs a good operation. He stated that he is satisfied that they are very responsible, have trained their people, and run a good operation. He noted that there has only been one Police instance that involved the Brewing Company and added that he has patronized the Brewing Company. He reported that the Brewing Company had a toxic problem in which they immediately called the authorities. This also proves that they are responsive citizens because they stopped the problem and took responsive action themselves. He expressed support of the appeal, noting that there are two restaurants that are closing and two licenses that are being lost. He stated that he finds the Brewing Company to be a well -run operation and that he wants to give them an opportunity to continue. Regarding the land use decision, Council Member Ridgeway emphasized that the conditional use permit is for a restaurant/brewpub and that anyone who operates on that land will have to continue to use the conditional use permit and continue to operate a brewpub. He believed this helps prevent a problem if the Brewing Company fails. Council Member Debay expressed concern because the City has been sending a message to Cannery Village that it does not want to intensify the alcoholic use and make a situation worse. Regarding Council Member Debay's questions regarding Standard City Requirement K, Ms. Wood confirmed that the Planning Commission can call this for review to modify or add conditions, or even conduct hearings for the possible revocation of this license if this adds to the intensity of the problems. Mr. Burnham suggested that the word "variance" be changed to "use permit" in this condition. He clarified that ABC handles their own permits, and added that, when Council grants a use permit, privileges /conditions run with the land and applies to subsequent property owners. In response to Mayor Pro Tem Thomson's question, Mr. Burnham stated that the standard to determine if they are complying is whether they are detrimental to the health, safety, and welfare of the community. Therefore, any factor like intoxication, excessive noise, and fights /disturbances would warrant a call for a modification or possible revocation of the 01/21/2000 3:52 PM CITY OF NEWPORT BEACH http: / /www.city.newport-bead ca.u...cil Agendas /Archive1999/MnO9- 13.htm conditions. The amended motion to reverse the Planning Commission's denial of amended Use Permit No. 3485; amend Condition 7 so that the hours of operation for Fridays and Saturdays is between 6 a.m. and 1 a.m.; and change "variance" to "use permit" in Standard City Requirement K carried by the following roll call vote: Ayes: Adams, Glover, Thomson, Debay, Ridgeway, Mayor O'Neil Noes: Noyes Abstain: None Absent: None 18. VACATION AND ABANDONMENT OF A PORTION OF AN ALLEY 1 Res 99- BOUNDED BY GRAND CANAL, BALBOA AVENUE, ABALONE AVENUE AND PARK AVENUE (LITTLE BALBOA ISLAND). Little B i Mayor O'Neil opened the public hearing. Vacatio T�re being no public testimony, Mayor O'Neil closed the public Aband hehampg. (90) Motion y Council Member Noyes to adopt Resolution No. 99 -62 ordehag the vacation and abandonment of a 2.5 -foot wide strip of righ f -way on both sides of a 25 -foot wide alley on Little Balboa Is 4d. The motion carried, by the following roll call vote: Ayes: Adams, Glover, Thomson, Debay, Ridgeway, oyes, Mayor O'Neil Noes: None Abstain: None Absent: None 19. AMENDMENT TO THE CIRCULATION EL EM T OF THE NEWPORT BEACH GENERAL PLAN TO RECLASSIFY TH EGMENT OF SANTIAGO DRIVE BETWEEN IRVINE AVENUE A ,�T,,U"STIN AVENUE AS A COMMUTER ROADWAY ON THE MASTER Pf) N4OF STREETS AND HIGHWAYS [GPA 98- 3(D)I. Mayor O'Neil opened the public hearing. Bryan Bond, 2431 Santiago Drive, stated that he has been involved with this issue for about four years. Mr. Bond requested and received clarification from Mayor O'Neil that Council intends to continue Agenda Item 21. 23 of 30 Res 99- GPA 9 Santiag Reclass (45) 01/21/2000 3:52 PM B LANK 1= NZhi hi, t No. 5 • • bLANK 0 0 �/. yr� e RECf,,iE ARTMENI I'LANNIN:.� i ;: =�. CITY � .iIEVJP(1. RTBEACl` AM HU011 2006 PM For discussion purposes, the NEWPORT BEACH ly"02 �1�i3141516 COMPANY ( "NBBC ") submits the following summary of the topics that they have raised and discussed with the City of Newport Beach and certain individuals that reside in close proximity to the brewery and restaurant. ADDITIONAL CONDITIONS OFFERED BY NBBC FOR USE PERMIT NO. 3485 Security Guards. Employment of 5 Security Guards with the primary function of controlling and patrolling the NBBC parking area. The specific duties for NBBC Security Guards will be explained to the City and can be memorialized in the conditions of approval. a. Noise abatement through notification b. Parking area enforcement of noise restrictions and nuisance activity c. Informing line that individuals can enter NBBC to use the restroom II. Bottle Recycling Program. NBBC has implemented a bottle recycling program that collects bottles inside the restaurant to eliminate noise. Also, large storage containers have been acquired to eliminate the "dumping" of glass and the associated noise. III. Trash Dumpster Area. NBBC will improve (including any feasible aesthetic treatment such as an enclosure) the trash dumpster area. NBBC has contacted the City for permission to improve the trash dumpster area. The enclosure will be locked and secure. IV. Alcohol Training. NBBC will require all (applicable) employees to complete an alcohol sales and training certification course. V. New Entrance. NBBC will consider the use of an entrance from the front of the building to alleviate the numbers of individuals that enter from the parking lot. Safety and suitability issues must be addressed for the following: a. Width of sidewalks b. Average line sizes at various hours of operation c. Potential new noise issues that may result from a new entrance VI. Tow upon Close. NBBC would consider implementing a towing procedure where vehicles parked in the NBBC parking lot after hours of operation would be subject to tow. NBBC CUP No. 3485 1 n 7l Miles Law Gro 703 up 7037.001 ifi/''�✓ y �yi NBBC's current position is that the conditions of approval for Use Permit No. 3485 have worked for the past thirteen years and do not need to be revised at the present time. However, they could be clarified to maintain the status quo operation of the brewery /restaurant. PROPOSED REVISIONS TO CONDITIONS OFAPPROVAL FOR USE PERMIT NO. 3485 OFFERED BYNBBC New Condition No. 9 "The service of alcoholic beverages shall be ancillary to the primary restaurant/ brewpub service operation of the restaurant. Accordingly, alcoholic beverage service is not permitted independent of restaurant food or brewpub services." Condition No. 10. Add: "For purposes of this condition, "regular meal service hours" means the meal service hours regularly established by the restaurant/brewpub." The service of alcoholic beverages during regular operational hours of the restaurant/brewpub that do not include meal service isprohibited" NBBC CUP No. 3485 2 Miles Law Group 7037.001 4/./y2 i t Exhibit No. 6 9./,/ -3 Page 1 of 1 Campbell, James From: Joe Reiss [JReiss @anaheim.net] Sent: Wednesday, August 09, 2006 3:39 PM To: Campbell, James Subject: FW: Newport Brew Company Jim ..... Can you please forward this to the Planning Commissioners for the meeting next Thursday .......... Thanks Joe On Wednesday 8 -2 -06 a group of us from the area around Cannery Village met with Jim Campbell of the Planning Department and a manager and attorney from the Newport Brew Company to discuss concerns about the operation of the Newport Brew Company. During the meeting Jim Campbell asked a question about the operation of the Brew Company after 10 pm. We never really answered his question. On Saturday 8 -5 -06, at about 1045 pm myself and Drew Wetherholt went inside the Newport Brew Company to see how the business operated. We were greeted by a security guard at the door who was checking ID's. We later asked this same security guard why he checks ID's and he said after 9 pm the restaurant becomes a bar. He also told us that nobody under 21 was allowed inside after 9 pm or they would lose their liquor license. We went inside the Brew Company to find the entire restaurant full of individuals standing throughout the restaurant and sifting at tables. Music was playing extremely loud to the point you had to be right next to the person you were talking to and you had to speak loudly for them to hear you. We sat at a table and asked a waiter if we could order some food and he said the kitchen was closed and the only thing we could order was drinks. There were no pretzels, chips, popcorn or any food at all being served inside the restaurant. Three security guards were inside of the restaurant and one was outside. It was obvious to me the Brew Company was operating as a "Bar'. When you read the Conditional Use Permit (CUP) for the Newport Brew Company they are in violation of Conditions 6 „9 and 10. Condition # 6 they choose to ignore and have never complied with since they opened. In Condition # 9 there is no food served after 10 pm therefore alcohol is the primary item served. With regards to Condition # 10 the Newport Brew Company becomes a bar after 9 pm on Friday and Saturday nights. The evidence is overwhelming they operate as a bar and the management of the Newport Brew Company would probably admit it. What bothers me is how this has been overlooked by the city all these years. The City Council approved the operation of the Newport Brew Company with certain conditions. These conditions were presented and approved at a public hearing. These are the conditions the community wants the Newport Brew Company to operate under not the inappropriate way they are operating today. The Newport Brew Company should be required to meet the conditions that were approved by the City Council. Thanks for looking into the operation of the Newport Brew Company and please feel free to contact me if you have any additional questions. Joe Reiss Resident of Newport Beach 714- 497 -6428 08/09/2006 y ! / BLANK bLAMK � 2 Exhibit No. 7 LAM K y �y8 Aur-11 -06 01:35pm From- California Coastal +5625905084 T -259 P.002 /0pp02 F -T50 Ms. Ms Meg Vaughn California Coastal Commission 245 W. Broadway, STE. 380 P. Q. Box 1450 I,ong Beach, CA 90802 Subject: Coastal Permit Application No. Dear Ms Vaughn: OCT 13 1993 CALIFORNIA COASTAL COMMISSION SOUTH COAST DISTRICT 5 -93 -137; 2920 Newport Boulevard As requested In the special conditions for the subject Coastal Permit Application, this letter is provided for the purpose of confirming the action of the City Council of the City of Newport Beach relative to its approval of Use Permit No. 3485 (Revised). As indicated in the attached excerpt of the City Council minutes dated September 27, 1993, the City Council aproved Use Permit No, 3485 (Revised) with the findings and subject to the conditions set forth in the City Council staff report so dated September 27, 1993. In sumarry, the City Council's action as it relates to the Coastal Commission's Special Conditions, included the following: 1. The "net public area" of the restaurant/brewpub, which is devoted to daytime use Monday through Friday (prior To 5:00 p.m.) shall be limited to 1,500 sq.ft. The balance of the "net public area" shall be physically closed off to the public by a fixed barrier and shall not be used until after 5:00 p.m. daily. 2. The property owner shall pay for 29 in -lieu parking spaces in the Cannery Village Municipal Parking Lot on an annual basis for the nighttime operation (after 5:00 p.m,) of the restaurant /brewpub use as agreed upon by the Sales Agreement between the City and the property owner. Inasmuch as the above conditions have been established as conditions of Use Permit No. 3485, the City of Newport Beach will inforce said provisions in accordance with the Use Permit Procedures set forth in Chapter 20.80 of the Municipal Code. It should be further noted that Item No. 2 above, is is keeping with the City Council's action rescinding its previous action which allowed the applicant the daytime use of in -lieu parking in the Cannery Village Municipal Parking Lot. We hope that this information will be sufficient for your purposes, and should you have any questions feel free to contact Mr. William Ward in our office, at 644 -3200. truly yourL , �S D. REWIC I Director ._F1aa1inAh[i1- a \UPM.1W y. /q9-�Z, Planning Commission Minutes 08/17/2006 Page 18 of 49 . Condition 63 should clarify the times- n sioner Henn would like to come up with solutions that will feel like there i mpr ment even with a slight increased in the intensity as measured by a count. nmissioner Ha s supported the operational reviews presented, but thinks if parking standards d to be adjusted, do it through the code not through the lication. Chairman Eaton asked if the ff had enough direction. Ung answered yes. Chairman Eaton continued the hearing to S ember 7, 2006. s Chairman Eaton asked if Staff will have findings revised conditions for hearing. Ung said Staff will prepare a resolution for approval wit endings and ditions of approval with the changes recommended tonight. >n was made by Commissioner Toerge to continue the Our Lady Quee Is Church Expansion (PA2005 -092) to the meeting of September 7, 2006. None nt: Cole sed: McDaniel Newport Beach Brewing Company (Use Permit No. ITEM NO.4 2920 Newport Boulevard I UP No. 3485 fhe Newport Beach Brewing Company has operated a restaurant/brewpub )ursuant to Use Permit No. 3485 since 1994. This permit was issued by the City Continued to n 1993 and it was subsequently amended in 1999. The City has received several 09/21/2006 complaints related to the operation of the use and the Planning Commission will evaluate the complaints, the operational character of the use and the condition ender which the use operates. At the conclusion of the hearing, the Commission nay require alteration of the operation or it may delete or modify conditions of approval. The Commission also may conclude that no changes are necessary and evocation of the Use Permit is not being considered at this time. stant City Attorney noted that Commissioner Hawkins recused himself item due to the appearance of a conflict. Commissioner Hawkins agreed sed himself. Campbell, Senior Planner, gave an overview of the staff report noting: . The Newport Beach Brewing Company was established in 1994 by a of a Use Permit No. 3485. y. /5a http: / /www.city.newport- beach. ca. us /PlnAgendas /2006 /mn08- 17- 06.htm 03/19/2007 Planning Commission Minutes 08/17/2006 Page 19 of 49 . In September 1999, the City Council approved an amendment to the u permit that approved full alcoholic beverage service with the sale of distill spirits. • The City, earlier this year, received a complaint letter regarding t operation of the establishment from a group of residents in t neighborhood. Those complaints relate to the operation itself and patr behavior around the establishment. • A report was presented in May of this year at which the Planni Commission asked for an additional hearing to review the application a look at whether changes need to be made in the operation or conditions approval. • The current report outlines questions and asks for clarification of what was authorized. A restaurant/brewpub was authorized. The residents contend the facility is being operated as a bar primarily after 10:00 p.m. and that operation is leading to nuisances in the neighborhood- . Is it a bar at those hours, and is it authorized pursuant to the use permit? Staff is asking for clarification on condition 10 (page 3 of staff report). • In staffs opinion, a restaurant and a bar were authorized. Can a bar operate without the restaurant being there at the same time is a question. . Historically, the City has looked at these operations and balanced the hour: that it has operated primarily as a bar against the hours it is operate( predominately as a restaurant. If the primary activity is a restaurant, the us( is deemed a restaurant. We believe that is what is happening there today. There is food service during those hours and up to recently they have had limited bar menu in the late evenings. It might not constitute regular foo( service, but food is available most of the time. What staff is looking for, is what was authorized, and then we can look whether they are operating with the use compliant with the conditions approval. . There is a side issue with condition 9 that indicates the operation of brewery and the service of alcoholic beverages shall be ancillary to primary food service operation of the restaurant. In that condition we saying it is a restaurant and food service is really the primary use. So tl is a question as to whether or not alcoholic beverage service has become the primary use. In addition, there is no time limit to this condition. After 10:00 p.m. in th( evening, even the General Manager at the May meeting, indicated that th( primary sales during those late evening and early morning hours is alcohol. Again, that is more like a bar and goes to the original question, what did w( authorize? Another issue that has been raised is there is a current limitation on dining room area during the day time. There has been a condition the y. i 5/ http: / /wwvw. city. newport- beach. ca. us /PlnAgendas /2006/mnO8- 17- 06.htm 03/19/2007 " Planning Commission Minutes 08/17/2006 applied in 1999 which limited it during the week. There is also a Coas Commission permit that would indicate it is a daily limitation, at least frc their perspective. The City is charged with enforcing this action based up a commitment that the City made in 1993 to enforce this provision. The C has been enforcing it on the weekdays and not on the weekend. There an issue on how this condition has been worded and enforced, and whetF or not the condition applies daily. The brewpub has had the full dining open on the weekends. The languag( of the Coastal Commission condition alludes that they shouldn't be. The City's condition can be interpreted both ways because it indicates "Monday through Friday" but also talks about the physical barrier being there "daily ". This condition seems to contradict itself and should be clarified an( modified at this time. The residents have indicated that there is a basic lack of control of patrol in the parking lot. In the late evening a queue forms outside this popul establishment that is pretty much at capacity in the late evening and ear morning hours. These folks can at times be boisterous and that leads to variety of nuisances. The question is, is there control in the parking lot? The brewing company has security guards there and they represent to stall that they are doing their best to control the patrons in the parking lot. Giver the proximity of the queue line to the residents, there may be ways tc alleviate some of the problem by relocating the line to the front of the building close to Newport Boulevard. Other folks may be impacted by doinc that and there may be a need to change the patio area to bring people in. That might work in the evening hours to alleviate some of the issues in the parking lot given the fact that there are residents living adjacent to the parking lot. . Another issue is whether or not they have complied with training prograrr that is required by the use permit. The City required that the manager proprietor and all employees undergo responsible alcohol training. Thai condition has not been complied with and since the City has informed the applicant, they have indicated that this training has been completed. However, there is no evidence to date. The purpose of the condition is tc make sure that the people serving alcohol are trained and serving in a responsible manner. A lot of the complaints that the residents are making tc us are in most cases directly attributable to the consumption of alcohol. We are hoping more responsible sales of alcohol and the proper training of staff may alleviate some of the ongoing issues. . The Cannery Village Concerned is a group of residents who have indicatec that they would like to see changes to the conditions that have beer forwarded to you and that is something that can be considered this evening. Staff is recommending that we change or modify conditions 9 and 10 clarify specifically what the Commission believes was authorized in 1999 eliminate ambiguity in those conditions. Based upon the determination the use, we can go forward and modify those conditions to affect posit change and reduce some of the nuisances. http: / /www.city.newport- beach. ca. us /PlnAgendas/2006 /mn08- 17- 06.htm Page 20 of 49 4�.1SZ. 03/19/2007- 9411j' Planning Commission Minutes 08/17/2006 Page 21 of 49 . There are a variety of complaints specific to the operation, trash encic dumping of bottles, and property maintenance occurring at hours that otherwise disturb residences. We are looking at the screening of the enclosure and to alleviate some of those nuisances through conditions. The Police Department is here to give testimony on law enforcement is: that have occurred there, as well as the Code Enforcement officer who conducted an investigation, a report of which has been provided for consideration. ;e Chairman Eaton asked if there are certificates that the applicant can p the City that would verify that the alcohol training had been accomplished. . Campbell answered he is not aware of how that training was provided and t aware of the availability of certificates. He had been assured that they ha en through that training. As enforcement of that condition, he would like to s me evidence that they have gone through that training. ,nmissioner Henn noted his confusion on the range of remedy that is availal this matter. He presumes it can include a change in hours of operation, otl trictions on how the establishment operates, does it also include revocation distilled spirits license? H asks the question for a better understanding of 1 ge of remedy that is before this body. Campbell answered that the Commission can change the conditions roval, which may change the nature of the operation, but revocation has n noticed here. Can they revoke that one license type, it wouldn't revoke re use permit but it could be a condition change. ron Harp, Assistant City Attorney, noted the procedure for revocation is laid Chapter 20.96 and there are very specific procedures that need to be follom fore this body can consider a revocation. It was the intent to bring this mat ck for at least one more hearing, so the purpose tonight is to primarily have ;cussion of the items, discussion of what, if any, conditions you would like to )dified or additional conditions, and whether or not a revocation hearing wo appropriate, and we will bring it all back the next time. missioner Henn noted that the range is wide open with the proper noticing. r. Harp answered yes, there are specific findings that are needed for revocation. a Chairman Eaton noted the revocation would apply to the City's permit, Alcoholic Beverage Control Permit, correct? Harp answered, yes. ce Chairman Eaton asked if there had been any investigations by the ABC, so, do you know what the results were? Campbell answered, yes there was an ABC investigation that began it uary. The operation was visited and the police were consulted, the finding; r not conclusive to take any particular action and the investigation was closed. </. /5 3 bttp: / /www. city .newport- beacb.ca.us /PlnAgendas /2006 /mnO8- 17- 06.btm 03/19/2007—t_-1 I Planning Commission Minutes 08/17/2006 Page 22 of 49 Harp noted the ABC is a different procedure that is set up under lance and is different from the revocation. Wood noted that part of what Commissioner Henn was trying to get at the distilled spirits was something that was added to this use permit at s I, so there is a condition that allows that, and would it be possible for ning Commission to delete the condition allowing that portion of the operz )ut going through the full revocation procedure? Harp asked for more history. Campbell answered that in 1993 a use permit was authorized to operate v pub under a Type 23 license. In 1999 there was an amendment to the u: nit that authorized a Type 75 license, which is a full alcoholic beverage servi brew pub. If you were to do that you would be terminating the amendme was granted in 1999. There isn't a specific condition that authorizes th ise type. r. Harp asked if there was one use permit. Campbell answered yes, one use permit that was just amended. Harp noted that, in general, if you take that type of measure, I recommend tha give full notice. You still have to make the findings for basically a simila idard for revocation as far as the impact on the general welfare of the imunity. We will notice it for you and bring it back at another hearing if that is iething you would like to consider. Chairman Eaton clarified that the modification to expand from beer and wi ation to a full distilled spirit operation was first applied for and denied by 1 ning Commission and then granted by the City Council, and it was at tl t that the applicant sought the Type 75 license from the ABC Board once approval for that kind of license. r. Campbell confirmed that was correct. ommissioner Toerge asked which condition allows for the full bar and full ;rvice or the provision. r. Campbell answered there is no condition that specifically addresses that. The mclitions for the amended use permit are on pages 18 -22 of the staff report. sere is no specific condition related to the license type but the project descriptior )on which the amendment was approved was clearly for that license type. nmissioner McDaniel noted that hand written page 129 of the report ut that in a discussion of August 5, 1999 from the City Council. The issue m up by the City Council and the vote was on page 131, which shows w Council was going and how they voted. ioner Toerge noted there must be something more than the minutes th izes this. IMr. Campbell answered that on page 100 is the staff report of the Planning) Y. / 5-y http: / /www.city.nexvport- beach. ca. us /PlnAgendas /2006/mnO8- 17- 06.htm 03/19/2007 Planning Commission Minutes 08/17/2006 Page 23 of 49 mmission, and the City Council's report is on page 97, and the minutes for etings are after that. I wanted to give you that so you could see what until was looking at in 1999 and, indeed, the project description is for a T license. Wood noted handwritten page 19 of Exhibit B Findings and Conditions I oval for Use Permit approved by the City Council 09/13/1999 and, assum is an exhibit to the resolution that approved it. One of the findings is tl ,enience of the public will be served by the sale of distilled beverages in 3urant/brewpub setting. Harp noted he will take a closer look at these conditions but the Commissi tell us exactly what they are interested in doing then we will take it back a it up to come back in the proper form procedurally. mmissioner Peotter noted condition 7 on handwritten page 20 says the hou limited 6 a.m. to 11p.m. Sunday through Thursday and only on Friday ai turday extended to 1 a.m. The staff report includes Thursday, I don't knc ich is which. Cosylion, Code and Water Quality Enforcement Officer for the City ort Beach, gave an overview of his report, noting: Received complaint letter from residents of Cannery Village noting concerns and complaints related to operations at the Newport Brewing Company. We were asked to take a look and ascertain whether the complaints happening or not, and to do a fact finding on what was actually taking there. We went there on three separate occasions. First one was February 2 which was a Thursday night at approximately 9:45 p.m. There was not a of activity at the bar or outside the parking lot. The parking lot lool relatively clean, there was trash but not a nuisance. There was no quf line and you could not hear voices from the patio that night. . The second trip was on February 4th which was a Saturday. It essentially the same thing, no queue line, the parking lot was pretty maintained. . The final visit made was on February 10th, which was a Friday night. Or that night there was a queue line, some individuals in the parking to screaming at each other, there was a lot of loud conversations going on anc the parking lot was clean but a lot of noise and volume going on from the patrons at the Brewery. He contacted the on -duty manager, Jerry Kolbly on the premises and discussed concerns about the noise from the queue line patrons. We discussed options such as moving the queue line to the other side of the building or to the front. Also discussed some of the other concerns in the complaint letter such as the trash. Mr. Kolbly agreed tc have his staff monitor the parking lot for trash. We had a good discussion that night relative to what was in the complaint y.�55 http: / /wwxv. city .newport- beach.ca.us /PlnAgendas /2006 /mn08- 17- 06.htni 03/19/2007 Cf Planning Commission Minutes 08/17/2006 Page 24 of 49 letter. I followed up with him the next week and had more discussions. . In terms of the property and activities occurring in the early morning hours, brought that up to Jerry about the bottles being picked up and obvious) making a lot of noise during the process. Jerry was asked to see if thos activities to be made after 8 a.m. as a help to the community so they woul not have to have those early morning wake ups. . In response to trash and debris issue, we do regular drive bys through & area. In terms of the amount of trash, there was general trash but it was massive amounts of trash laying all over the parking lot so we did not iss any notices. We did ask Jerry to have his employees do general sweeps there too, to make sure it is kept clean. . There was also the issue of closing off a portion of the area before 5 p. daily. We went out there on one occasion and they did have it cordoned so that a portion of the business was shut off. . That concludes a report on the investigation. Chairman Eaton asked the timing on February 10th. He was answered about 10 p.m. and the queue line had about 10 to 11 people stretching fro front of the building to almost where the alleyway was. nmissioner McDaniel noted that you have to respond when you get complaint! this complaint was in January so you dealt with it in January and February. complexity of this kind of situation changes when it is cold outside and people to work in January and February as opposed to summertime. I have twc stions. Were you able to look at this place June, July or August maybe ever /, and were you able to look at it after 11 p.m. at night? Cosylion answered we do not usually go out after certain hours for safe es as we are not police officers. So we let the police handle the late nig city. But no, we have not gone out there during the summertime. We have :tly received complaints relative to loud noise, we have only two sin ruary that we have documented. Any of those complaints would have be( arded on to the Planning Department. /ice Chairman Eaton noted that it sounds like when you went out 45 minutes ike at 10 p.m. that there was more activity at that point and there was the q Cosylion answered that on each day they went out around 9:45 or 10 p.m. a Saturday night there was activity around 10 p.m. Harp noted his opinion that you would schedule an appearance to revoke th mdment to the use permit. It will be the proper procedure for handling ause there isn't a condition that relates to full on -sale of alcoholic beverage in order to basically deal with that issue, you need to revoke the amendment. Chairman Eaton stated you are talking about not revoking the entire revoking the amended portion. http: /hvvAv.city.newport- beach. ca. us /PlnAgendas /2006/mn08- 17- 06.htm 03/19/ 07 /—Z7jV Planning Commission Minutes 08/17/2006 Page 25 of 49 r. Harp answered that's correct. Vallercamp, Detective Sergeant with the City of Newport Beach, noted: . As far as changing from a Type 75 license to a Type 23 license, wh would be a full bar to the small batch brewery, that would be something t the ABC would probably look into. They are the arbiters of those things. We have a sophisticated method of documenting all our calls for service i any given area and I had my detectives run a report from January 1st of '0 to August 10th of '06, so it is roughly an 8 month period. I used location such as in our computer aided dispatch, when an officer calls out an activit they could say the Newport Brewery, the Municipal Lot, 30th and Villa, usin all those parameters, I checked the area for our level of service and ho+ many calls we have had in that vicinity. During that time frame of Januar 1st through August 10th, there were 41 entries. 41 activities listed at th Newport Brewery, the Municipal Lot, 30th and Villa. etc. , 23 of those call were calls from the public. They will require further research to determin the disposition. The remaining 18 of those were bar checks, parking Ic checks, some of them could have been an officer using one of thos locations as a landmark to call out a car stop or a pedestrian stop. In the City of Newport Beach currently we have 341 active ABC licenses. Those establishments are authorized to sell alcohol in our City. In the area in which we report these, we break them down into reporting districts. Th( reporting district we are concerned with here is reporting district 15. In thi: reporting district 15, which is Balboa and 20th to Balboa and 34th Street, ul Newport Boulevard to the Coast Highway, in that triangular area there ar( 73 ABC license establishments. In 1999 when the Newport Brewery Company applied for their Type license at that time there were 60 ABC license establishments in report district 15. There is a high concentration of outlets in this general vicinity. In 1999 the citywide total arrests there were 3,704, of those in the entirf City. 1,656 of those arrests were related to alcohol, either drunk driving drunk in public, those types of issues. In 1999 again in reporting district 15 there were 624 total arrests, 65% of those were alcohol related, either drunl driving or drunk in public. Bringing it to the year 2005 the citywide tota arrests were down a bit to 3,115. The alcohol related arrests citywide wa! 1,056 so we are talking roughly 33 %. In reporting district 15 in 2005 therf were 646 total arrests and the percentage of alcohol related arrests in thi! specific reporting district was 65.4 %. So you can see we are pretty bus, here in reporting district15. Lastly, the State Alcohol Beverage Control had a case specifically with Newport Brewery somewhere around April 11th of 2006 and they cloy their case on August 4th. At that point, the advised us, "the majority complaints were from the outside area." ;ommissioner Toerge asked if the 341 outlets in the City and the 71 outlets rea 15 include retail outlets. Is there a breakdown? Y. /57 http: / /www. city . newport- beach.ca.us /PlnAgendas /2006 /mn08- 17- 06.htm 03/19/2007. Planning Commission Minutes 08/17/2006 Vallercamp answered yes. He can provide the breakdown at ssioner Henn clarified that the ABC investigation stemmed from the area? active Vallercamp answered that he had called the investigator who said tha their investigation and received no further information on what it pertained to. rmmissioner McDaniel noted that there has been input from some sources Police Department doesn't respond very well, and when they do, they say ught a place next to a bar you dummy what did you do that for? Would you respond to that. active Vallercamp answered that is not a typical response of an going to say whether it occurred or not as I wasn't there. I would somewhat disappointed if an officer told me that. officer. I be surpri )mmissioner McDaniel asked do you believe that when there is a call that t sponse is fairly quickly? Can you give us a feel for response time? There is iication of negligence, it is the same old thing, it's just a bunch of drunks and a not going out there because we're too busy over here doing somethi portant. That's the allocution and I thought you would like to be able to respo that before :tective Vallercamp answered we have more officers down here as there ire pedestrians, more parties down here, more ABC licenses and there ire calls in this particular area than any area in the City. We deploy very hea wn here in this vicinity of the entire Balboa area. I would say our response ti probably faster than most in the county. iissioner McDaniel noted it would be fair to say that you're busy down h iy and you would already be here n't have to come from down coast. attending to activities that are here Vallercamp answered yes. responding to something else, so y You've got adequate amount of pol I just want to get the opportunity Chairman Eaton asked about a copy of an article that appeared it ster on July 7th that appears to quote, from the Police Department, incic ed to bars in the City and the Newport Beach Brewing Company listed a highest generator incidents between December 1st, 2005 and June 6 year. I am wondering if you can comment on that and its accuracy :her these incidents can be attributed to these bars and if so how. ietective Vallercamp answered that it falls in line with the statistics that iven you, the 41 calls. This ended in June 6th and my statistics ended 0th. I think this is an accurate representation citywide. a Chairman Eaton stated lic intoxication occurring buted to these incidents? the article says most of the calls involve fights outside the bars. Is that something that can http: / /www.city.newport- beach. ca. us /PlnAgendas /2006 /mnO8- 17 -06. htm Page 26 of 49 y./se 03/19/2007 7-c-- Planning Commission Minutes 08/17/2006 Page 27 of 49 etective Vallercamp answered certainly alcohol plays a part there, Itercations and general boisterous behavior. This is such a highly conce rea with so many bars and restaurants down there that serve alcohol. Chairman Eaton said what I was trying to get at was when you sta cing, I thought you had said that sometimes when you use tl fication criteria it's even possible for vehicle stops that happen to be at ection. So, I was trying to figure out if any of these incidents would I those kinds of things, or whether they really were problems associated of with this particular bar. etective Vallercamp answered he had spoken with Sergeant Harford and he go is statistics from the same computer aided dispatch system that I did. Some o iese could very well be the landmark of stopping a car at Cabo Cantina ierefore it shows up as some sort of activity at that location. Chairman Eaton asked do you have any sense at all as to how many incidents really were related to the patrons of this bar? ve Vallercamp answered without hand pulling each event and each whether it was an arrest report or crime report of some nature, illy reading each of them I don't. en Miles of Miles Law Group, representing the Newport Beach Brewi pany, stated I am actually going to try to limit my statements to addressi e of the conditions that were raised in the staff report and some of t pretive efforts with respect to the main conditions 6, 9 and 10. 1 would like iit time for the General Manager to address some of the voluntary conditio have been proposed by the Brewing Company and the community outrea Is that have been made to address what we think are the actual concerns tl is the operation of the brewery and the Cannery Village. iition 6 - I don't really know if there is much of an issue to that with respect tc final word, daily. Normally when you interpret a condition that in specific !rns the general and it is very clear from the very first sentence that the 1,500 prohibition is Monday through Friday. So, I believe the final word daily is y a reference to the days in which you have the preclusion it applies. Actually second sentence is redundant and can be stricken if that would be a ondition 9 - addresses the issue ancillary. The way the brewery reads conditio you have three components. The operation of the brewery and the service c coholic beverages shall be ancillary to the primary service operation of th �staurant. Again, during full hours of operation you are going to have differer eakdowns of food and alcohol and even beer. So really, especially the way tha • alcohol licenses are drafted, they deal with quarterly revenue. I don't think it i • most appropriate way just to focus in on an hour because there is going to b iomalies throughout the hours of operation. There are going to be hours the e 100% food service, or the lions share is food serve and there may by 3 inute intervals it will be all alcohol. Really, condition 9, 1 think, addresses the id talks in terms of ancillary with respect to three components. I think that in th ierall picture of the 13 years that this condition has applied, I think the conditio a drafted has worked and I don't think it needs to be modified. In terms c arification we are willing to suggest clarifying language if that is the will of th 4/159 http: / /www.city.newport- beach. ca. us /PinAgendas /2006/mnO8- 17- 06.htm 03/19/2007 Planning Commission Minutes 08/17/2006 mission. ondition 10 - I think boils down to the phrase, hours not corresponding seal service hours, and I think Jerry will expand on the fact that full mE going to be provided through all operational hours of the brewery. I uts condition 10 to rest. Unless you are of the mind set that the re( ervice hours can't be established by the Newport Beach Brewery Ci ,ould also like to point out that condition 10 does reference alcoholic s opposed to beer. I think conditions 9 and 10 do reference the fact istilled beverages being served, so there is a reference point in the co upport that position. m inuing, he noted with respect to a use permit with conditions, once they ar( ied upon, they become a fundamental property interest. I want to address mmissioner Henn's inquiry about remedies and go into a little bit of what the mclard is here for reviewing a conditional use permit. Just so everyone knows, a independent judgment standard is what applies if a court were to review the tion of a city. It is a far less deferential standard of review than I think you migh rmally be used to in terms of discretionary approvals and is based upon actuall, cisional law out of 4th Appellate Division 3, which was the classic Goat Hi tern case in Costa Mesa, so it appears that drinking establishment make prett, od land use law. So, we are dealing with a fundamental interest here, it is ver portant. We see a very big distinction between clarification and modifying o Coking in part or in whole, conditions in this permit. would like to address the procedural question that the Commissione idressed. I see it a little bit differently. It is true that Chapter 20.96 doe: idress revocation. I would like to read Sub part A, titled Duties of a Plannin( hector, which states, "Upon the determination by the Planning Director that ther; e reasonable grounds for revocation of a use permit or other discretionar )proval authorized by this Planning Code, that revocation hearing shall be set b, • Planning Director, the Modification Committee, the Planning Commission, o • City Council, whichever took final previous action on the permit." The poin are, and it is a procedural one, is that I believe that in both 1993 and 1999 the ial action, with the coordination of the Coastal Development Permit, but initiall, ith the use permit and in 1999 1 believe the City Council took the final action of at. So, the way I read revocation, if you determine that revocation is what wi e talking about I would have to say the public notice that was posted doesn' clude revocation. It didn't merely limit this hearing to reviewing the use permit, i ates the Commission may also conclude that no changes are necessary. Ii vocation, the use permit is not being considered at this time. That infers that i initially being considered, so I hope that you do realize that revocation is nc acessary. I think to the extent that we are addressing the revocation issue the itial threshold question is whether there has been a determination by the anning Director and secondly, I believe that the City Council shall set tha caring. There is a question as to whether what we are doing right now is )propriate. Moving beyond that, I would like to point out that, again in the iginal approval and again in 1999, in the staff report the actual essence of the ;e permit is that you have conditions that protect against these types c iisances and the finding that has to be made is that the use with the condition: consistent with the General Plan, the specific planning in the area and that then e no interferences with the public health, safety and welfare. I think with that ose two express findings by the City Council and the 13 years that hav( anspired, I think that is really what this body is up against in terms of making http: / /www.city.newport- beach. ca.us/PlnAgendas /2006 /mnO8- 17 -06. htm Page 28 of 49 y.1 Go 03/19/2007 2 5� Planning Commission Minutes 08/17/2006 Page 29 of 49 se that somehow it is warranted to truly consider revocation or really bstantive modification to these permit conditions. would like to point out that there has been a lot of late correspondence and w( idn't have the most formal presentation, but we had to deal with a lot of late orrespondence. One of the addressed items was a receipt of August 5th. ugust 5th was a date in question where there was testimony from a Mr. Reef, elieve, that somehow there was no food service in the late hours. That is ai ;sue for the Commission and I want to provide this receipt that shows that a 1:00 p.m. on August 5 that in fact full service was provided, half Chinese chickei alad and fettuccini alfredo. That actually went on until 12:56 a.m. I don't know i tis was actually submitted. (he submitted it for the record). There is a lot a take here and I would like to reserve time for rebuttal, or at least to respond t( our questions, and I would like to hand this over to Mr. Kolbly to talk about the in nd outs of what has been offered by the Brewing Company to address nois( ;sues and issue of parking lot, the queue, trash and whatnot. Chairman Eaton asked Mr. Harp to discuss issues of level of review amental interest and which body has jurisdiction to consider revocation an ification. Harp stated continuing to look at the Code sections if there is going to be dification or addition to the conditions, then you are clearly the body that wou idle that matter. If it is revocation, the alcohol beverage ordinance, which 9060, is primarily the use permit that they were obtaining allows for it to be s the Planning Commission, or the Planning Director, to revoke the permit and 6 the procedures to follow related to 28.9 says that it is set before the body th k final action, the Planning Commission action was appealed to the Ci uncil and there is an express provision in 29.0640 that where I read it exemp appeals so I believe the Planning Commission would be the proper body ar revocation. As far as the standard of review goes, I don't think that is ue. You need to make a decision based on the record that is here before yo t would be the decision that would eventually be litigated. -e Chairman Eaton affirmed that this is the proper level to hear modification /ocation. I assume also that whatever this Commission does can be appea the Council. Harp answered yes. Miles noted that the majority of the conditions in the permit were in 1993, 1 don't believe there was an appeal at that point in time. )mmissioner Toerge noted condition 9 is clear. The operation of the brew d the service of alcoholic beverage shall be ancillary to the primary food sen eration. You used the word anomaly to describe certain hourly quotations, our last hearing there was a statement by the general manager that 90% of ;eipts after 11:00 p.m. are from alcohol. You consider that ancillary? Miles answered yes. What I am talking about is if you take a deviation over a hours of operation. Toerge answered I understand, but let's not do that. y.l(I http: / /www.city.newport- beach. ca. us /Plr Agendas /2006 /mn08- 17- 06.htm 03/19/2007 Planning Commission Minutes 08/17/2006 Page 30 of 49 said 90% of the receipts are alcohol, do you consider that ancillary? . Miles answered that the operation of the brewery and the service of alcohc verages are ancillary to the primary food service operation of the restaurant. )eration is not broken down into certain segmented hours of operation. Again point would be taking it to the logical conclusion, what happens to that 1! nutes, 5 minutes, it is ancillary within the language of condition 9. ;sioner Toerge noted the service of alcohol is supposed to be tied eating hours that are certainly not after 11:00 p.m. Miles noted that for the brewery the regular meal service hours are all hours Kolbly, General Manager of the Newport Brewing Company, noted: . Referring to condition 6, during that time of the day the service is 100% fi in the area. Now, if you take the restaurant away from me on Saturday Sunday afternoons where I am strictly serving food in that area it will problematic. . My partners and I agree about the clarity of the conditions. . There will be a roof cover for the trash and we are discussing relocating line after 9:00 p.m. off the entrance off Newport Boulevard. . We have started discussions with security regarding the preparation of detailed security plan. • We have tried to work with the neighbors on how to work out the situation. Everything that we brought to the table was not accepted and the impression was that the neighbors wanted the establishment to be closed. • The business has been there over 11 years and there are barely any fights. You can go to Disneyland and see fights there. • This is a great establishment for the patrons and tourists all the way from Germany. Now, these residents that just moved in over a year ago are saying we are no good. This is not the way we run things. mmissioner McDaniel noted there are some issues outside the establishme t you have no control over; there are some issues that your establishment ising in the neighborhood. My view to start with is to give you time to fix it ai and do better and then come back and see how you did. I am not interested ocation at this point, but there are issues in terms of trash, things patrons do community, and there are certain things you can do to fix it. If we can get y ving towards that , which I think you are interested in doing, maybe all of tF i go away. The other side is the residents have to recognize that they boug nething next to where you are and they are going to have to recognize there ng to be some activity at that location and they are going to have to live w t too. You both need to live together. I prefer you make attempts to fix tl ;h, bottle collection, locking off your parking lot and if there are people runnii y, 162 http: / /www.city.newport- beach. ca. us /PlnAgendas /2006 /mnO8- 17- 06.htm 03/19/2007 ¢ Planning Commission Minutes 08/17/2006 Page 31 of 49 and in the neighborhood, it will not be your issue. The other issue I have Type 75 liquor license was given because you folks, at some point, request t as your customers need hard liquor with their food. So that was supposed ancillary as you wanted to bring other patrons in to get the food. That clearly what is happening here, its a bar after 11:00 p.m. Kolbly asked if the Alley Restaurant was a restaurant? He noted he conside restaurant but that after 10:00 p.m. no food is being served there and a bar ig on. Anytime a restaurant is open after 11:00 p.m., you are not a Denny's :tly serving food. The hours were given to us since day one, we have h; > to get in. There wasn't a problem then, but now all of a sudden there is. TI ration has not changed. I offer full service meal all the way to closing. nmissioner McDaniel noted the Type 75 license service of booze was to be illary to the food and that is not the case. Chairman Eaton asked: . How long does the queue line get. . How would you move the line to the 30th Street side if you need to keep the doors open to the parking lot? • There is a condition on the ABC license that the line shall not extend along 30th Street. If you did have the line originating at the 30th St. entrance would it get so long as to encroach along the alley? • Is the kitchen open until closing? r. Kolbly answered: . 25 -30 people maximum. . It would be the south side open during the day and then closed at night so the actual entry would by the fire line door and the line would run south towards the pier. I • The line is not starting on 30th Street, we will have to place a hole on the patio with an entrance so it would run onto Newport Boulevard south. • Until we stop serving alcohol, those guys are cooking in the kitchen. blic comment was opened. dd Carson, owner of Rudy's Pub and Grill and property owner, noted: • He supports the development that has gone on in the Cannery Village. • There are responsibilities of the developers in the area and it should be enforced by the City with the loft like environment mixed use to make people aware of what they are moving into. Maybe there could be some http: / /www.city.newport- beach. ca. us /PlnAgendas /2006 /mnO8- 17- 06.htm 03/19/2007 Planning Commission Minutes 08/17/2006 Page 32 of 49 sort of waiver, or signing off, that they are aware of the business operatic within the surrounding neighborhood that close at 2:00 a.m. and open 7:00 a.m. . The restaurant owners try to control people as they leave the establishmen and we do our best job, but it is not always our patrons leaving ou establishments causing the problems. . It is tough to lay the blame on any one establishment. . I know that Balboa Imports is looking to become a loft environment behii us, which means our parking lot will open up directly to those new propose lofts and there is nothing that we can do when we let our patrons out keep them quiet. They are going to set off their car alarm noise and that always going to happen. There has to be some sort of leniency in death with the public, dealing with the business owners and the fact that we we there first. I know I put a lot of money in my building and to have this fig two or three years down the road will be a difficult pill to swallow. n Dale, patron of The Newport Brewery, stated his support of iblishment, noting: . Family environment. . No way to quantify what responses that the Police Department has in area that are related to the bar itself. . They do a great job with the security at the door. . Food is served all night long. . It is a friendly atmosphere and people enjoy going there for drinks and it one of the few places in Newport that has a patio. . This is the kind of business you want to keep in Newport Beach and is r the kind of thing that you should shut down because some people moved next door to a bar. They knew it was there before they bought their place. an Kokus, local resident, noted: . There is a lot of traffic from other restaurants that goes through Beach. . As a former restaurant manager, the stipulations brought up a education and addressing those issues are addressable and I believe they will be addressed by the applicant. . I am pro business and running restaurants in any city after 11:00 p.m., consumption goes down, that's just the way it is. . People choose to have a cocktail instead of food and we shouldn't V. / (V y http: / /www. city .newport- beach.ca.us/PlnAgendas /2006 /mnO8- 17- 06.htm 03/19/2007 Planning Commission Minutes 08/17/2006 Page 33 of 49 that. If you restrict one restaurant by limiting what they can do, you a setting a precedent and saying to other restaurants that when thi problems come up that you are going to handle it the same way. I think th is a dangerous precedent. ill Markowitz, owner of a newer loft in the area, noted: Loyalty of the business patrons is wonderful. As a business owner she appreciate it. . However, the business is not operating in a civilized manner. . None of us want to shut this down. We are trying to bring some civilization to this establishment after a certai hour. . It is about business and I am happy that they are successful. . However, there is violent verbal behavior late at night that disturbs sleep. . There have been altercations between several of the neighbors and owners as a result of sleep deprivation. . If you are tired, you get angry. The parking lot is out of control. . It is a great business, but I would like to see some compatibility neighbors. . Stop the juvenile fighting, and if the law has to be a catalyst for that, then be it. . Being drunk in a parking lot is illegal. When we have called the police, the time they get there, the patrons are gone. . She noted episodes of urination during the day. . She asked that the consumption of alcohol be controlled. . The queue line is loud and noisy. McDaniel asked what time these problems are happening. Is. Markowitz answered it is after 11:00 p.m. and she had actually been p at 1:30 a.m. by people in the parking lot last night. ommissioner McDaniel noted it couldn't be these people as the establishment as closed at 11 last night so it couldn't have been their patrons. I am trying to et what the problem is and I am not convinced from what you are saying that last night at 1:30 that they were their customers because they were closed. f s http: / /wwtiv.city.newport- beach.ca.us /PlnAgendas /2006 /mnO8- 17- 06.htm 03/19/2007 — Planning Commission Minutes 08/17/2006 s. Markowitz noted clearly it was not associated with them but that she v istrated because she is awakened so many times strictly from their parking id queue line noise. I support the business, but can't we live together? Chairman Eaton asked how close she lived to the establishment. Are yoi re of the dividing line between their parking lot and the municipal parking lot? ire do most of these disturbances take place? Markowitz answered she is adjacent to the parking lot. Absolutely, and rbances happen on their parking lot. Green, local resident noted: • There are many businesses in the area. • The disturbances come from all the people coming home from all the bars the neighborhood. • You can't put the blame on Jerry's business and the argument that this stemming from the misuse of their permit is ridiculous. You have a bunch drunk people coming home. He has watched from his patio the craziness of people going home and come from all around except Jerry's place as it is closed down. issioner McDaniel asked if they accumulate in the parking lot. Green answered they accumulate everywhere as they are parking in the on the streets; h has seen many fights on the sidewalks. Ily Steed, local resident, business owner and a Cannery loft owner, noted: • The establishment is a nice one until after 9:00 p.m. • I did not realize when I bought my place that the Brewery operates as nightclub, they crank the music up and it is booze only. • The parking area is the launching pad for the whole peninsula. Where there more parking than at the Brewery. • I have tried to work with these people to come to some solution but it been futile. • At night it is completely out of control. My house is used as a urinal, the has been blood on my property and I have seen fights coming out of t bar. Sometimes it is so violent that people have climbed over my fence get away from the brawl. • I don't call the police anymore because it is futile. • The Brewery is operating outside their use permit. The first thing it says http: / /www. city .newport- beach.ca.us/PlnAgendas /2006 /mn08- 17- 06.htm Page 34 of 49 y./ (4 (0 03/19/2007 --�' Planning Commission Minutes 08/17/2006 Page 35 of 49 they are not going to create a nuisance in the parking lot, and they do. . They have been uncooperative. . The violence is unbelievable. Lenard, local resident, noted his support of the restaurant. He has brought ly there many times as the food is excellent and moderately priced. ice and atmosphere are very friendly. He asked that it continue to operate. Stevens, employee of the restaurant and local resident, noted: . The waiters push food at the restaurant after 11:00 p.m, not only becaL we are told to as it is good for sales, but for every ticket we are going want a higher bill because that means a higher tip. . Every person who sits down there is asked if they want something to e we let them know the full menu as opposed to being 'booze only.' We try push as much food as we can. . I was the waiter on August 5th, where some patron was told at 10:45 p. the kitchen wasn't open and we ended up with the half chicken salad midnight. I don't recall saying that then, I might say it later for whate, reason, but as I am there to make money I push sales as much as I can. . I have never seen 100 people in the parking lot and there certainly is blood anywhere. mmissioner Toerge noted the testimony of the General Manager was that I ;hen was always open. You just said you would say it was closed at 11:45 p. Stevens answered that was on him if he said it at all. When I am there, I food as much as possible. Callahan, local resident, speaking on behalf of her husband and his staff d they love the restaurant and when they get off work they go there late in the ing for food. If they don't have the opportunity to get there, I bring the food t( . The food is great and it is a great place to go with the family. mmissioner Toerge noted this is not how great the food is, it is about the imp the neighborhood and the late hours. I appreciate the fact that the food mil good, and the servers are nice, but that is not the issue. I encourage you about the issue that is the noise that is created, the impact on I ghborhood and the ancillary nature of the food. Jusco, local resident and regular patron of the restaurant noted his support establishment noting he has brought his family there many times. He stat this is the kind of establishment that the City should be supporting and r ping their hands. The Code officer and the detective both gave no sped lems at the Brewery. ABC couldn't find any problems, so what is the iss r than this Commission gave approval to build a home in a retail area that jt )ens to be right behind the Brewery. Anybody living within a block of Newp y. !Co % http: / /www.city.newport- beach. ca. us /PlnAgendas /2006 /mnO8- 17- 06.htm 03/19/2007 Planning Commission Minutes 08/17/2006 Page 36 of 49 levard is going to have noise. How you can point the finger at the Brewe say it is their fault, doesn't fly. This problem is all up and down Newpc levard and unless you come down on every bar in the City, you will still have dem. If you do it only to the Brewery you are discriminatory unless you do it ybody else. This is a great establishment and I would hate to see anythir happen to it, they do a great job. audience became very vocal at this point. Harp noted this is a public meeting and all rules of decorum prevail. If anyc ates those, the officers will be happy to escort you from the premises. Plea the people speak. The Planning Commissioners are not here to respond ;stions, they are the ones who get to ask the questions. ommissioner McDaniel noted he has tried hard to listen to everyone, he will sting and it would be best to hear the issues, not the emotions. We have rake decisions and so we ask questions to help us understand the situation to ble to make a good decision. Think about what you do to help yourselves wh au make your presentation. We don't want to argue with anybody or cause s ouble. Help us to get through the issues. Joe Reese, noted that condition 10 states the approval of this use permit is for a estaurant/brewpub and shall not be construed as the approval of a bar, cocktai ounge, or other use serving alcoholic beverages during hours not correspondinc o regular meal hours (food products sold or served incidentally to the sale o ;ervice of alcohol beverages shall not be deemed as constituting regular mea ;ervice)... I did go there on August 5th and when I went there it was with the Mention to see how it is being operated. The security guard met us at the doo and was checking ID's. We asked why he was doing that and he said that afte i:00 p.m. the restaurant becomes a bar and that no one under21 is allowed in o hey would lose their liquor license. The restaurant had patrons standing and lout nusic was playing. We sat at a table and asked the waiter for food who told u: he kitchen was closed and the only thing to order was drinks. There were nc :hips, pretzels or popcorn being served. There were three security guards inside he restaurant and another one was outside. It was obvious that this was actinc as a bar, not a restaurant. went on to say that if you look at all the paperwork, the Planning Commissior City Council were specific about the operation. Referring to hand writter e 127 of the staff report, he read the testimony of the then general manager iwn Needelman. He then spoke about the differences comparing testimony. suggested closing the restaurant at 11:00 p.m. as that is the normal closinc of a restaurant and that will solve the problems. rge Schroeder, noted he was present at the meeting in 1993 when the origins iit was received. The reason they got the permit was they were going to be pub. He was present in 1999 when they applied for their liquor license. :rring to handwritten page 18, item 5, the restaurant/brewpub use is patible with the surrounding commercial and nearby residential uses, then always been residential uses in that area. It seems to be an impression tha the new loft condos were built behind it on one street now there is lential. There has always been residential use in the Cannery Village area of the original staff report was that they would operate in a way that would bE eable with the nearby residential uses. I don't think it reasonable this mar 9.I(2, http: / /www.city.newport- beach. ca. us /PinAgendas /2006 /mnO8- 17- 06.htm 03/19/2007 =,7-6� Planning Commission Minutes 08/17/2006 Page 37 of 49 ose his business. All that matters is are they complying with the permits they have gotten, and in my opinion they are not. The solution is they should close a, 11:00 p.m. on Saturday and Friday nights, which should alleviate a lot of the problems for the residents in the area. I have lived 18 years here and it is not fail to blame everything that is wrong on this one establishment, but we can look al the permit they have and the conditions they agreed to. There are fistfights on the streets after the bars are closed and often times I am awakened at 1 a.m. and it is hard to get back to sleep and it does affect your work day. This establishment should comply with the conditions of the permit. He continued talking about other establishments and noted that his survey resulted in closing times of 11:30 p.m He noted that this is a bar. Wetherhault, local resident, noted: . The 200 blocks of 28th, 29th and 30th Streets get pounded every with drunk activity. . A drunk has tried to break into his property. The police responded. Fights have occurred where the police responded as well as paramedics. . Various acts of sex, property damage, vulgar language go on all times the night. . The point is these types of incidents continue to increase, as does th number of people under the influence of alcohol The number of police call to this area is extreme. . The residents are tired of this and if the patrons can not leave th establishments in a responsible manner and the bars can not control activity of their late night patrons, then the City needs to start laying these establishments. . This establishment went in as a restaurant and we would like to see continue as a restaurant but you need to do something to curb this activity. nmissioner McDaniel noted you mentioned a lot of things that have happened. i mentioned broken bottles but it is not normal that containers would be taker from this establishment necessarily. You haven't talked about any specifics. Or. Wetherhault answered it is one of the impacts, it is another bar having mpact in the surrounding community. You can see the number of responses fi he Police Department that are alcohol related. McDaniel noted this is in general for the area, not specific to He was answered, correct. Commission inquiry, Mr. Wetherhault added that there is loitering in the pa s directly adjacent to the residents and you can see them coming from y. / (0 y http: / /www.city.newport- beach. ca. us /PlnAgendas /2006 /mnO8- 17- 06.htm 03/19/2007 —`7 /, -2 Planning Commission Minutes 08/17/2006 Page 38 of 49 Bransiwaski, past resident of Cannery Village, noted everyone is talki ancillary use. The relevant definition of ancillary use comes from quarte ation. How much booze versus how much food is sold quarterly. You ca it down to days, hours, weekdays. You can in terms of discussion, but t mt definition is quarterly. So why are people talking about what happe !en the hours of 10 and 12 p.m. or what the characteristics might be? )ny Shepherdson, resident since 1967 stated when his place was built there wa! small gourmet market that is now the Brewery, so these things came after I wa! resident. The Brewery, Malarky's and Rudy's are not sidewalk cafes. I pass the rewery on Sunday mornings and it appears to have a nice ambience. Wha appens late at night is when our nightmare starts. These are full on drinkinc stablishments. The drunks late at night keep him awake and from hi: ?rspective the village atmosphere is being destroyed in his immediate vicinity b) e Brewery, Malarky's and Rudy's. The police can not respond when thing! appen. Rudy's on Sunday afternoons has live entertainment with a live PF rstem that sounds like it is in his garage and this is around 4 -5 in the afternoon. is very difficult to take and has gotten the police involved. He asked that if the ity is pushing the mixed use and have businesses and living quarters togethe it to allow the hard liquor license, for these things to continue, it really isn' Ang to fit. We need help to maintain the Newport Beach village atmosphere. Weeda, business and property owner in Cannery Village, noted: . It is important to seek compliance with the use permit, that is what this about. . Just because this operator has operated outside the permit for years, does not validate or legitimize the actions. When this use permit was applied for they were promoting themselves as restaurant and one of the reasons this was done is this was an amiable we to get a permit. . If they had gone in and said they were going to operate as a boistero! nightclub at 11p.m., 12 and 1 a.m. on the weekends, they would hay virtually no chance of getting the permit. Particularly since this district has high concentration of bars and history has shown that nightclubs have n fared so well down there. He mentioned other nightclubs in the area and stated the problems of a night venue with alcohol. . This establishment was promoted as a restaurant because they could get permit as a restaurant. Now they are operating as a restaurant most of ti time in the restaurant hours and as a full blown bar after 11 p.m. . The clear solution is to bring them into compliance and have them be restaurant they promoted themselves to be, which many of the c restaurants in the area have set a fine example by doing so. . Condition 6 - the net public area of the restaurant is limited to 1,500 sq y.170 http: / /www. city .newport- beach.ca.us/PlnAgendas /2006 /mnO8- 17- 06.htm 03/19/2007 Planning Commission Minutes 08/17/2006 fee daily. There is a bit of ambiguity the way this is written but we ha contacted the Coastal Commission and it has been presented that it is daily restriction and is part of the condition of the Coastal Permit. That something that needs to be regulated and enforced by the City. Condition 7 - The hours of operation Monday through Thursday are 6 to 11 p.m. and we think those should be the hours of operation on Friday anc Saturday as well to bring it into compliance with a restaurant type operation. Condition 9 - The alcohol should be ancillary and not primary and should in conjunction with food. The operator promoted that they needed thi: order to make the food work, then use it for the food. After 9:00 p.m. most compelling testimony, 90% of the business is alcohol so that reall,. in violation. Condition 10 - It is pretty clear that the Planning Commission and the C Council did not want to promote a nightclub or bar there. Again this gol back to this being a restaurant. The reason for the use permit is to ensu things like this are being taken care of such as parking and land use. The is a serious parking problem in the neighborhood when there are spc promotions during play off season or super bowl. That is what the Coasl Commission was concerned about. Commission inquiry he noted that condition 6 needs to be enforced and doesn' ed to be clarified. It is clear to me it is a daily condition that has been impose( the Coastal Commission and needs to be enforced like all the conditions. M, ue is not with the operation and what it does or who the people are, my issue is h the use permit and being in compliance like every other business like m, siness that operates under a use permit. We are in compliance and we expec eryone else to be too. That is what a use permit is for. The late night creates ; of the problems and I think it can be organized by making them adhere to thei e permit. I think this is really an important thing and applies to late night a: :11. It is really about the parking and that is why that condition is imposed an( eds to be adhered to. It creates conflicts with other business owners during th( rmal business hours and creates conflicts with other public people parking a: Aley, resident, noted that she frequents the brewery. been able to get food after 12 p.m. She has not s after 12:00 p.m. when she has been there that hav e speakers. She stated she I seen any of th( been portrayed Hogan, a manager in charge of the kitchen at the establishment, noted: He was on duty the night of August 5th when two patrons came in they were not allowed to get food. That night there were 3 events in So Cal and we were the slowest Saturday. Even with that, there is no way I would have shut the down. . We are supposed to be open and we are. http: / /,.Nutiv.city.neNvport- beach .ca.us /P1nAgendas /2006 /mnO8- 17 -06. htm Page 39 of 49 -7 03/19/2007-J-(T-� Planning Commission Minutes 08/17/2006 Page 40 of 49 . He is one of the last ones to leave and on the weekends leaves at 1:30 or and the parking lot is silent. Whatever happens after that is out of o control. We can lock the parking lot but we don't want to be liable and patrons need to leave their car and get a taxi, then we promote that. The is a municipal lot in the back that can be used as well. . There were 41 calls recorded for this procedure, how many of them during our business hours? . 65% of the arrests were due to alcohol, how many of them were on the of July and do they involve us in any way? • Nobody orders food from 10 p.m. to 2 a.m. After 2:00 a.m., Jack in the is packed, there is a line wrapped around the building. Denny's is star room only. . A crime to me sounds like a someone not reporting they are seeing a fig going on. Chairman Eaton asked are there times the kitchen is closed before th g time of the entire premises. Hogan answered no, the kitchen is open until the Brewery is closed. You :r a steak at 12:15 a.m. At Commission inquiry, he noted that we can e people to order food. Once they are out they are hungry, but they c ally eat between 10:00 p.m. and 2:00 a.m. liam Moore, resident on the boardwalk for 30 years, noted: . He has an alley in the back of his home and he chose to live on th boardwalk. . Drunks come down that alley every night. . They are there because there are a lot of bars in the area, not just beca of the Brewery. . He has been a patron of the Brewery and has eaten there after 11:00 p.m. . He has never seen any problems in the parking lot. Low, local resident, noted: . Referenced the work done by staff and the time put in by the Commission. . He presented a packet of communications, which had been distributed the Commissioners in their packets. . He presented copies of a CD of the May hearing. . There have been a lot of points of view of what people have seen or nol y.1 iZ http: / /www. city .newport- beach.ca.us/PlnAgendas /2006 /mn08- 17- 06.htm 03/19/2007 Planning Commission Minutes 08/17/2006 Page 41 of 49 seen. The issues that are in the communication that went to the City, I h heard no substantial testimony that proves any of the communications inaccurate. I submit that the complaints by the residents are what they and are part of the record. We are talking about compatibility. We understand we live in a mixed use neighborhood and understand what that is. When we look to find equity o' rights in that mixed use neighborhood, that is what we are talking about. Not whether they are good or bad, what's fair, what's right, what'=. appropriate, what isn't appropriate. That is why we ask you and we entrus' upon you to make wise decisions on how to deal with our neighborhood. Chairman Eaton asked: . Are you associated with the Cannery Village Concerned group? • How big is that group and how wide an area do they live in? . Are they primarily residents? . Do you see any relationship between condition 6 and the late nig nuisance problem or is that a case of the parking problem in the village as whole? Low answered yes, he is a member. It is not so much as a forma mbership but that group probably has 50 -60 persons that are involved and wt 80% of those are inside the Cannery Village. There are a few who live of periphery of Cannery Village but they may be on the other side of Newpor ulevard. Certainly it is dominated by folks who live or own property in tha nnery Village. Specifically condition 6, as dictated by the Coastal Commission s to free up parking during the day because they determined that the demanc parking occurred during the hours of 8 a.m. to 6 p.m. They felt that after 6 p.m >ple leave who may have been working there or go home from the beach an( re is more parking there. Condition 6 does not address evening issues, I thinl t the Coastal Commission was trying to make it available to the Brewery in the :Wings or other businesses or persons who use it in the evenings. There was iflict during the day when other persons were attempting to utilize that limitec McDaniel noted that the information that comes from this ;n't always get signed. I have a problem when people send correspi no signature, it doesn't' have a lot of credibility without the signatures. don't stand up and to be counted, I don't care. Low noted that everyone in that group are willing to be disclosed. Madlock, Vice President of Newport Beach Brewing Company since ion, noted: The Type 75 license was not in existence when we first opened the brem and asked for the conditional use permit. What was allowable was just Type 22 which was a small beer manufacturer's license. The Type 75 ce http: /hvwNv. city .newport- beach.ca.us/P]nAgendas /2006 /mnO8- 17- 06.htm 03/19/2007 Planning Commission Minutes 08/17/2006 Page 42 of 49 along later due to the fact that there was some old laws prohibiting brewi beer on the same premises where you could buy hard alcohol. It was i available or we would have asked for it at the beginning. The parking issue and closing off part of the restaurant, it was understanding that during the weekdays we left 13 spots for the of spaces above the brewery. We were under the impression that beca the offices were closed on the weekends, that was the reason why Coastal Commission was not pushing us on having any area closed during the weekends. ,mmissioner McDaniel, referring to the August 5th City Council minutes, it we led that the Councilmembers clarified that this Type 75 license application we be able to provide for your eating customers. The ancillary thing keeps comin here. When I read these minutes, it appears to me you asked for this becaus ur customers are sophisticated and don't want to drink just a beer they me nt to have a cocktail and you were trying to increase your sale of food. Am ano in that? Madlock answered we wanted all higher sales. Of course we want to food. We find that many customers that we had prior to getting the hol license were not frequenting our establishment. We were told that n ale wanted martinis, margaritas, etc. Not all people want to order wine and that was the basis of why we went in for the Type 75 license. rmissioner McDaniel noted that it was stated that'they wanted to complen it enhanced food, wine and special menu, and capture a more diverse clien acquiring this license. I read this so that you wanted to increase your f =_s and sell them a margarita too, but you wanted this license to assist with d sale. Ancillary keeps coming up and we don't want you to be a bar, we v i to be a restaurant that serves drinks. Madlock noted we have never served a cover charge and we wanted to icholas Wilson, resident, noted that the testimony of most of the speakers )ems the biggest problem is the parking lot. The majority of the comple >ncerns noise and the parking lot. It is clearly unfair to single out one restaura r the problems in that parking lot considering that is the largest public parking I a proximity to seven restaurants within a two block radius. There is a shortal restaurants that do serve late in the evenings. There are those of us who i it work 9 - 5 and we appreciate being able to get a beer and something to eat non - regular eating hour. Huffine, resident of Costa, noted her support of the restaurant noting this extended family and as a regular patron have seen the efforts put forth by t iers to be good neighbors. comment was closed. Commissioner Henn referred to the Coastal Commission findings of 1993. Th language regarding how much of the restaurant is to be open during what day seems to be clear and consistent with the motivations with what I know to be the ,, 17q http: / /www. city .newport- beach,ca.us/PlnAgendas /2006 /mnOg- 17- 06,htm 03/19/2007^x° Planning Commission Minutes 08/17/2006 Page 43 of 49 astal Commission. There is no wording whatsoever about daily, it says, shal open before 5:00 p.m. (referring to the 1500 foot restriction). Doesn't say daily ;sn't say Monday through Friday. I don't know how the City could interpret thi: say Monday through Friday when the permit was issued. As far as I arr icerned that is clear to me. Toerge noted his agreement with Commissioner Henn. Chairman Eaton noted his agreement also. He added that the de( riction does as well (referring to handwritten 86). It says daily. With regard comment on the 13 spaces on the upper floor, hand written page 63 the sty )rt from the Coastal Commission notes that there are 43 spaces provid( ng the day with the restriction and that provides for the 13 on the secor r. I don't think that related to not having the weekday restriction at all. If th dition needs to be clarified my recommendation is to remove the referen iday through Friday reference. McDaniel noted that he agrees. Commission was in agreement. McDaniel noted: . He has had to ask a lot of questions as the Commission handles zoning blood, vomit and fights. . The ancillary issue is clear and that the request for this Type 75 license alcohol was made so that the restaurant to better serve its restaur customers. . The Planning Commission and the City Council made it clear that this wa supposed to be a restaurant and I believe it was given to better help th place service its customers for food. . There has been testimony from people who work there saying between 11 and 1 a.m. 90% of what goes on there is not food, it is alcohol; I can't make them eat, I'm okay with that, but the purpose of this condition and approval was so those people who did want to eat could have alcohol, not so that you could just serve alcohol. . Another employee said nobody eats between 11 and 2 a.m., Denny's isr busy, they eat after that. So this condition is not being served by this and is a bar between those hours as people don't eat there by their ow admission and they are saying food is not served because you can't mal, people eat. . They are not serving food, they are serving alcohol so I think there is violation of that portion of the use permit. . Clearly the daily issue we just talked about. . Nuisances - we have tried to pin down where those are coming from.l y 175 http: / /www.city.newport- beach. ca. us /PlnAgendas /2006 /mnO8- 17- 06,htm 03/19/200 Planning Commission Minutes 08/17/2006 Page 44 of 49 Clearly they are not all coming from this place and so what do we do from zoning issue to try help solve that? That becomes more difficult for me. • We can ask the operator to assist by covering the trash and they are to about doing that because they want to be a good neighbor. I'd like to at giving the owners some opportunity to fix these issues before we any significant changes to this. I am not sure if it matters to me if they serve alcohol or not as long as are doing it in a manner where it doesn't cause public safety is because that is what I have to talk about. My view is to get some consensus how the operator voluntarily take care o' some of these issues. Maybe call this back in 6 months for a review and i they are not operating responsibility than anything that they do after 11 p.m is not a restaurant and we should deal with it then. missioner Henn, noted: Condition 10 - it seems this language was uniquely constructed. Is thi standard language for the provision of a hard liquor license to a establishment that is primarily be a restaurant? Campbell answered this language was uniquely crafted at that time. We do nilar condition today, in essence to define what the use is and what the use ca ,t be. One of the issues we are struggling with this condition is staff has looke these conditions and balanced the use based upon the entirety of the use rich is restaurant a majority of the time and a bar as a minority of the time an incipally it is a restaurant. Based upon that and that past practice is why w ,uggle with does this condition prohibit the bar after 11:00 p.m., and the answe we haven't looked at it in that light until now. 1r. Harp added that in talking with City Attorney Clausen, the intent was for this perate as a restaurant but serve alcohol and not as a bar. Looking at t inguage in condition 10 its says food products sold or served to the s� icidentally to the sale or service of alcohol beverages shall not be deemed onstituting regular meal service. It seems to me that provision is pretty clear a don't see any ambiguity some others see. mmissioner Toerge noted: • This situation is broken. You don't get the kind of resident appeal that are getting tonight if something is not broken. The Planning Commission is going to have to get use to these kinds discussion as more and more properties are zoned mixed use, although we do that we will probably get better about applying conditions. There is a real conflict in these conditions because I do read condition 11 that the serving of alcohol is to be done in correspondence with regula meal service hours. I've testimony about doctors and others who like to ea late and I understand that, but that is not regular meal service hours an( y.17 (v http: / /www. city .newport- beach.ca.us P1nAgendas /2006 /mn08- 17- 06.htm 03/19/2007 Planning Commission Minutes 08/17/2006 Page 45 of 49 that is what we are talking about. What are those? I don't know, but th are not at midnight or at 11 p.m. or 1 a.m., that is not in my opinion. That very clear to me. We can debate the issue of ancillary as this Commissi has in the past reviewed a number of applications for alcoholic bevera service ancillary with food and I don't know of any of them that are op past 9:30 or 10.00 that we have approved where an establishment mic want to serve beer or wine or even a cocktail with their food. What I don't understand is how our predecessors could have allowed property to be open with this condition that alcoholic beverage could served with regular meal service hours. Harp noted when he had spoken with Ms. Clauson regarding this issue, 11 ilanation based on her recollection was that the intent of the operation was like Charlie's Chili or some of the other places that do serve food late at nig I the intent was to have a meal and also have alcohol with it. When they g amended permit the minutes stated that the clientele shifted from people r twenties to people in their sixties. It is consistent with people coming in for al and having a drink with their meal. )mmissioner Toerge stated that merging conditions 9 and 10 the anci rvice of alcohol with food it makes it more clear. I definitely think an amer this use permit is due and we owe it to the residents. This issue came be in May and the issue is still here; there seems little done to address the is: d from my standpoint I think the ours of operation should be reduced and I t sure 11.00 p.m. is the right one but I know no later is the right one if they continue to serve alcohol with food. I will be recommending revocation un owner wants to agree to some other conditions. McDaniel asked about a 6 month time line. Toerge answered no. Harp stated they had met with the Newport Brewery counsel as well as nagement directly after the last Planning Commission meeting. Basically phasis at that meeting was come up with a way to get control of your busir the interim, implement those procedures and come back to the Plan mmission with a plan. They haven't seem to really have done much in the F days, so that is something to take into consideration. nissioner Peotter asked about exhibit 5 that is the additional conditic d by Newport Beach Brewing Company. Have they implemented any , or is this something that they would do? Campbell noted the security guards are there but there has been no secur i presented. The bottle recycling program has not been implemented, t h dumpster area I have been told they are exploring the concept; the alcot ling I have been told that is being done, but there is no proof to date; of ance, upon tonight's testimony it hasn't been implemented and the tow up e is something they are considering; and the back page is a suggestion ige condition 9 and 10. No particular other improvements have been made. Henn noted he is not interested in waiting another 6 months to q.17 7 http: / /ww%v. city . newport- beach. ca. us /P1nAgendas /2006 /mnOg- 17- 06.htm 03/19/2007 Planning Commission Minutes 08/17/2006 Page 46 of 49 there is voluntary improvements. If people want us to make the decision, I a ad to do that. I suggest to continue this for one month to allow time for tl lgrieved parties and the owners of the business to sit down and hammer out rlution that they can live with. I prefer not to make the decision, I prefer tl irties to come to some decisions. They might have tried that and failed and at is the case, I am glad to make the decision as part of the Commission. ommissioner Peotter noted that sitting across the table is not going to do much there appears to have been a lot of months of bad blood. I would be requiring em to implement what the have said in exhibit 5 within the next 30 days. We in give them 60 days with the implementation and then sit down with the lgrieved parties if it is working or not. Otherwise, chop their hours and be done ith it. ommissioner Henn noted exhibit 5 doesn't go far enough. ommissioner Peotter noted we can add to it such as an no age restriction, etc. iscussion followed on some additional implementation procedures. ce Chairman Eaton noted we should not try and do something tonight or at the sxt meeting because the Our Lady Queen of Angels will be at the next meeting. e agrees to a continuance for a month. Both sides and city staff should meet to ;e what agreement there can be in terms of meaningful improvements but for the aff to come back to the Commission and present us with what we can do in odifying conditions then have a review in 6 months to see how those modified mditions are working. The other reason not continue the whole thing for 6 onths is that either side may be anxious to get this up to City Council and we could not stall them for that period of time. During this month we need to ructure some revisions to the conditions that we might have a shot at working for e neighborhood. Cutting back the hours is the drastic solution that we would )pe to avoid. I would like to have staff look at the certification programs have a )mponent that provide guidance to employees when to stop serving to dividuals when they have become too drunk for their own good. If it does, how in we get verification that the employees have gone through this training and in we get some assurance from managerial employees that they have instructed eir staff to implement that. The ultimate problem seems to be outside the emises. The problem inside the premises they are containing and the neighbors e not as affected. Some of the behavior outside the premises is probably not )ming from the patrons of this premise unless they are going on to other bars :cause at 2:00 a.m., I am sure patrons of this establishment are probably gone. is a neighborhood problem of which this establishment may be contributing a )rtion and I would like to see if there is a way to get something back to us in a onth that will offer some revised conditions including specifically condition 6 and ) mething specifically stating the kitchen shall remain open the entire time and a ay to get the employee alcohol training implemented. Craig Frizzell, Detective Division Commander of the Newport Beach Police :)artment, noted that there are several types of training programs. I know the ning but I don't know if there is any type of certification, but we can find out. can work this out with the owner within a month's time. Commissioner Henn noted that the neighborhood groups need to be involved uring this time. He noted that the people who own and operate this restauran are not mal- intent. I think they are trying to operate a good business. I also don' l-7e http: / /www. city .newport- beach.ca.us/PlaAgendas /2006 /mn08- 17- 06.htm 03/19/200 Planning Commission Minutes 08/17/2006 Page 47 of 49 nk that the neighbors that are aggrieved are blowing up their claims routinel, re to make it seem much worse than it is, I don't believe that either. In fact, ally don't care as our function is not to find out who is telling the truth and who is aggerating; our function is to try and find out what the use permit is and whethe restaurant is being operated in accordance with that and therefore whether th( .ink people in the parking lot are patrons of this restaurant isn't the importan ;ue. The important issue is what is the use permit and is it being operate( rrectly in accordance with it. I want to make sure that everyone understand: at this is an objective decision before us. The testimony tonight is not germane the decision. Harp noted that on the motion it needs to be clarified as to the manner nt this to come back to you as there are different procedures for modific: i revocation. Chairman Eaton noted he is talking about a modification, not a iissioner Toerge noted he does not want to take revocation off the table, the owners act. He prefers to continue the hearing and keep the opti r. Harp noted that revocation is not on the table but if you want to add it, staff :ed to comply with the procedures set forth for revocation. By opening up )or for revocation, does not mean you have to take that action. We can comk with modification, additional terms and revocation. ,nmissioner Toerge noted he is not prepared to make a motion to revoke tl nse today, but he might be next time. It is an option we have and it should I intained and it should be there. This is a serious issue and we need intain that option as I think it will motivate the parties to reach the resolution. not sure we will get there if revocation is not an option. imissioner Peotter clarified that you are suggesting that this item be continue brought back with revised conditions that are hammered out by staff who wi had input by the neighbors and the owners. imissioner Toerge noted his agreement; however, the meeting should b :ed in such a way that if the information we get at that meeting compels one c a of us to revoke it that we have the opportunity to make that motion. Why are saying is the right tact, but it presupposes that there is going to be sour promise and I am not convinced there is. If there is no compromise then to revoke. lowing a brief discussion it was decided that revocation should also be on ice for the next meeting. 3tion was made by Commissioner Toerge to continue this item to Sep st and ask that the item be noticed in such a way that we have the opp engage in further discussion to make modifications to the use permit /oke the amended use permit that granted them the right for this ex :ohol sales on the premises. y.1-7 http: / /www.city.newport- beach. ca. us /PtnAgendas /2006 /mn08- 17- 06.htm 03/19/2007 Planning Commission Minutes 08/17/2006 Page 48 of 49 Harp affirmed the Commission wanted staff to prepare potential modified or additional conditions. Chairman Eaton agreed and added that there was consensus that the <day provision be removed from condition 6. maker of the motion agreed to add that to the motion. imissioner Henn noted that the neighborhood people should not take this a blanche to be intransigent and unwilling to discuss and unwilling t promise on their positions either. What the Commission is looking for is a promise and I think that is included on all parties. oes: None bsent Cole ecused: Hawkins NAL BUSINESS: SINESS City Council Follow -up - Ms. Wood noted that the agenda for August was the City Council initiated an amendment to the Planned Community Icourt to prohibit additional subdivisions, which will be coming to P Wing Commission. Report fro Planning Commission's representative to the Econoi Development ommittee - Commissioner Henn noted the topic discussion was t cost related to Greenlight II. EDC will be recommend to the Council a rev d summary of the associated costs. c. Report from the Planning Co ission's representative to the Local Coasta Committee - Commissioner Tog, a noted at the meeting of August 14th tha approach in terms of the volu of the information included in the Implementation Plan were discusse . We decided we needed a summan of how the items serve each of the poli s in the Local Coastal Plan itself. We discussed the topic of the Corona del r bluff development guidelines which is significantly different than other blu the City. Matters which a Planning Commissioner would like ff to report on at subsequent meeting - Vice Chairman Eaton asked wh the topic of ti rules and procedures of the Planning Commission will be u or review ai whether the Zoning Committee will be reactivated. Ms. Wo noted th staff is working on the rules and procedures and that the Zoning mmitb may be reactivated when the General Plan is approved. e. Matters which a Planning Commissioner may wish to place on a agenda for action and staff report - none. 9. s�v http: / /www.city.neNvport- beach. ca. us /PlnAgendas /2006 /mnO8- 17- 06.htm 03/19/2007 "1 1 Attachment No. 5 Staff report and minutes from January 4, 2007 Planning Commission hearing S-1 0 0 C� • • 5--Z CITY OF NEWPORT BEACH PLANNING COMMISSION STAFF REPORT Agenda Item 3 January 4, 2007 TO: PLANNING COMMISSION FROM: James Campbell, Senior Planner (949) 644 -3210, icampbell(aicitv.newport- beach.ca.us SUBJECT: Newport Beach Brewing Company Use Permit No. 3485 2920 Newport Boulevard ISSUE Should the City modify or revoke Use Permit No. 3485? RECOMMENDATION Staff recommends that the Planning Commission modify the conditions of approval of Use Permit No. 3485 as described below. BACKGROUND In 1993, the Newport Beach Brewing Company was issued Use Permit No. 3485 to operate a "restaurant/brewpub" with a Type 23 Alcoholic Beverage Control (ABC) license subject to conditions. In 1999, the City authorized an amendment to the Use Permit to allow the restaurant/brewpub to operate with a Type 75 license subject to revised conditions (Type 75 allows beer, wine and distilled spirits associated with a brewpub). On May 4, 2006, the Planning Commission discussed the operation of the Newport Beach Brewing Company in response to complaints by nearby residents, property owners and local business persons. At the conclusion of the discussion, the Commission found that there was sufficient information to review and possibly modify the Use Permit. On August 17, 2006, the Planning Commission considered the matter once again and directed staff to set a public hearing to consider possible revocation of the Use Permit. The minutes of this meeting are attached as Exhibit No. 1. Additionally, the Commission wanted staff to meet with the Brewing Company and neighbors in an attempt to resolve the matter. Staff has met with both parties and there is not a consensus as to how to proceed. ST- 3 rrf Newport Beach Brewing Company January 4, 2007 Page 2 PUBLIC NOTICE The Newport Beach Brewing Company has been notified of this hearing. A hearing notice indicating the review, potential modification and potential revocation of Use Permit No. 3485 was published in the Daily Pilot, mailed to property owners within 300 feet of the property (excluding roads and waterways) and posted at the site a minimum of 10 days in advance of this hearing consistent with the Municipal Code. The item appears on the agenda for this meeting, which was posted in accordance with applicable law and on the city website. DISCUSSION Neighbors contend that the Newport Beach Brewing Company is violating its Use Permit and that the operators are not sufficiently controlling patron behavior that is creating nuisances. Alleged violations include operating a bar rather than a restaurant, opening the entire dining area on weekends before 5PM, trash in the parking lot and unruly patron behavior outside the establishment. Neighbors contend that patrons create noise, cause property damage, urinate, defecate, and conduct sexual activities, etc. during the late evening and early morning hours. The May 4, 2006 and August 17, 2006 reports outline the complaints and issues. The Brewing Company contends that they are not violating the Use Permit and they have since instituted several changes to their operation, which appears to have had a positive effect. Operational and Physical Changes The Brewing Company has instituted the following changes: • The brewing Company agreed to construct a cover over the existing trash enclosure (building permit under review). • Employee training on responsible alcohol sales has been completed. All owners and employees have received L.E.A.D. training and the applicant is agreeable to ongoing training of new employees. L.E.A.D stands for Licensee Education on Alcohol and Drugs and the 3 '/z hour training session is conducted by the Department of Alcoholic Beverage Control staff. It focuses on providing practical information on serving alcoholic beverages safely, responsibly, and legally, and preventing illicit drug activity at the licensed establishment. • The operator has relocated the entrance from the parking lot side of the building to the Newport Boulevard entrance (through the outdoor patio) when a queue forms to alleviate noise and patron behavior from causing problems to the immediate residential neighbors. • Discontinued the removal of condiments and menus from the tables. • Discontinued the late night bar menu while keeping the kitchen open at all times. • Installed signs requesting that patrons be respectful of the neighborhood. • Stepped up security sweeps of the parking lot to discourage loitering and boisterous behavior. !gw~ E, it Newport Beach Brewing Company January 4, 2007 Page 3 • Maintain a security presence at least one hour after closing. • Instituted a recycling collection program that minimizes noise generation. Bottles and cans are separated and stored within plastic recycling tubs within the building. The full tubs are loaded onto a truck during the day and empty recycling tubs are dropped off. This method avoids the noisy practice of dumping glass bottles after hours. • Scheduling maintenance activities outside of sensitive hours. These changes have been reasonably successful in alleviating many of the problems associated with the use based upon discussions with neighbors and the reduction of complaints; however, several residents remain unsatisfied. Principally, several neighbors believe the Brewing Company operates as a bar after approximately 10PM several nights a week. Code Enforcement, Police Department and Planning staff have conducted investigations based on complaints by neighbors. Code Enforcement Officer Cosylion reported at the August 17, 2006, meeting that the operation did not violate the conditions of approval based upon his field observations (Exhibit No. 2). It was noted that his observations were not taken during the early morning hours when most of the problems seem to occur. A queue forms on popular evenings and the crowd was boisterous. Noise from the interior of the operation was not considered loud or unreasonable. Additionally, site was free of litter. Police Newport Beach Police conducted an investigation in the fall of 2006 and their report is attached as Exhibit No. 3. Planning Based upon public testimony at the Planning Commission meetings, the following conditions and alleged violations are at issue: • Condition No. 9 currently states: 9. The operation of the brewery and the service of alcoholic beverages shall be ancillary to the primary food service operation of the restaurant. An ancillary use is a "use that is clearly incidental to and customarily found in connection with the principal use; is subordinate to and serves the principal use; is subordinate in area, extent, or purpose to the principal use served; contributes to the RUI Newport Beach Brewing Company January 4, 2007 Page 4 comfort convenience, or necessity of the operation, employees, or customers of the principal use served..." During the May 4, 2006 meeting of the Planning Commission, the General Manager of the Brewing Company stated that alcohol sales constituted more than 50% of sales during the day and that alcohol sales are close to 90% of sales during the late evening and early morning hours. Alcohol sales of this magnitude could not be considered ancillary to food sales in staff's opinion. The full menu and condiments that are stored on the tables were being removed from the table after typical meal service hours. A limited late night menu was offered and testimony indicated that food service was not always available during the late evening. The Brewing Company's ABC license limits the gross sales of alcohol to be no more than the gross sales for food on a quarterly basis and no actual gross sales information is in evidence. Staff recommends the following changes to Condition No. 9: 9. The operation of the brewery and the service of alcoholic beverages shall be ancillary to the primary food service operation of the restaurant (e.g. the brewery and the service of alcoholic beverages may not be conducted without the concurrent operation of the restaurant during all hours the use is open for business). The quarterly gross sales of alcoholic beverages shall not exceed the aross sales of food durina the same period. The operator shall at all times maintain records which reflect separately the gross sales of food and the gross demand. The example augments what "ancillary" is for this use and the gross sales limitation is identical to the language contained within the ABC license condition. • Condition No. 10 currently states: 10. The approval of this Use Permit is for a restaurant/brewpub and shall not be construed as the approval of a bar, cocktail lounge, or other use serving alcoholic beverages during hours not corresponding to regular meal service hours (food products sold or served incidentally to the sale or service of alcoholic beverages shall not be deemed as constituting regular meal service) nor as the approval of a cabaret, nightclub, or other use with the principal purpose of providing live entertainment and /or dancing. The City permitted a "restauranUbrewpub." The restaurant aspect was stressed in the original application and in testimony from the applicant in the 1993 approval and with the 1999 amendment. The brewing, sales and service of alcohol was characterized by the applicant as accessory to food service; a convenience or amenity and a way to complement food sales. S-6 ice" Newport Beach Brewing Company January 4, 2007 Page 5 After approximately 10PM, typically on Thursday, Friday and Saturday nights, the use takes on a more "bar - like" character as security personnel are provided on popular nights, a queue forms outside on some evenings suggesting occupancy to capacity, limited or no food service was available, limited food is ordered by patrons, alcohol sales dominate and persons under 21 are excluded. These traits are indicative of a bar rather than a restaurant. During the August meeting, several Commissioners seemed to stress that the operation must serve food during all operating hours to avoid being labeled a bar given the operational characteristics described above. The operator has eliminated the late night menu and has eliminated the practice of physically removing the condiments and menus from the tables. The full menu is now available for service during all operating hours and they have stated that they are "pushing" food sales in the late evening with some success. With the kitchen open and with meal service available, the question of whether or not the use has appreciably changed remains. Even with the kitchen in full operation during the late evening and early morning over the last few months, the use retains a bar -like character after approximately 10PM most evenings. At the conclusion of the August meeting, several Commissioners seemed to be more concerned with alleviating the nuisance to the neighborhood rather than drawing a bright line between what constitutes a bar or a restaurant. Given that the operational changes instituted by the Brewing Company seem to have had a positive effect, staff recommends the following modification to Condition No. 10: 10. The principal use authorized by this Use Permit is The ^^^Feral ^f this Use Permit as fer a restaurant/brewpub. The accessory operation of a bar is permitted provided that the kitchen remains open for the service of meals and that a full menu is provided. This Use Permit aad shall not be construed as the approval of a bar, cocktail lounge, or other use with the principal purpose of serving alcoholic beverages dui:ing h^ r nn+ ^ n nndinn to regular weal .cacr y.Ge. hours (food p e .nln sel OF served i nidentally to the sale n rsc'v"o$ of nor as the approval of a cabaret, nightclub, or other use with the principal purpose of providing live entertainment and /or dancing. The kitchen of the restaurant/brewpub shall be in operation to serve meals at all times that the business is open. A complete menu that constitutes meal service shall be made available at all times. Menus and condiments shall be available at the tables at all times. • Based upon the complaints received from the community, the applicant was not taking reasonable steps to discourage and correct objectionable conditions that constituted nuisances as required pursuant to Standard Condition D. City staff was not able to verify the complaints as they were not observed directly. The applicant has posted signs to alert patrons to the fact that residences are nearby. The operator has stepped up security sweeps of the parking lot and grounds to S-7 Newport Beach Brewing Company January 4, 2007 Page 6 discourage inappropriate behavior. Staff is not suggesting any changes to Standard Condition D; however, staff recommends several new conditions: 20. The operator shall discourage loitering on site at all times the establishment is open or employees or owners are present. 21. The operator shall conspicuously post and maintain signs indicating to patrons to be courteous to residential neighbors while outside the establishment. 22. The applicant shall prepare a detailed security operations plan within 45 days of approval of this amendment to the Use Permit. The security operations plan shall be subject to the review and approval of the Police Department and Planning Department. The plan shall specifically outline methods and personnel necessary to control patron activity on and abutting the project site to minimize or avoid land use conflicts. When security services are required pursuant to the security operations plan, securitv shall be provided whenever necessary and a minimum of 1 hour after the posted closing hour. Employees did not receive adequate alcohol service training in accordance with the intent of Standard Requirement F. No record of the completion of any training program was on file with staff and the operator indicated that their staff had not completed any such training program pursuant to this condition. Owners and staff of the Brewery have since completed the L.E.A.D. training program conducted by the ABC Board staff and no current violation exists. Staff suggests a change to the wording of the condition to require ongoing training. F. All owners, managers and employees serving and/or selling alcoholic beverages shall undergo and successfully complete a certified training program in responsible methods and skills for serving and selling alcoholic beverages. To qualify to meet the requirements of this section a 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 operator shall provide proof of completion for all owners, managers and employees within 30 days of the approval of this amendment and new employees shall successfully complete the training within 30 days of initially starting work. The establ:e!'me. ^.t shall Gemply with the ~ iFeMeAtS ^f this eeteen within 180 .days f the issuanse of the erd'Fn"In 9. eeeur.• no y • Condition No. 6 currently states: The net public area of the restaurant/brewpub, which is devoted to daytime use Monday through Friday (prior to 5:00 p.m.) shall be limited to 1,500 square feet. The balance of the net public area shall be physically closed off to the public by a fixed barrier and shall not be used until after 5:00 p.m. daily. S-S� Newport Beach Brewing Company January 4, 2007 Page 7 No violation of this condition has ever been observed; however, discussions at the previous Planning Commission meetings focused upon whether the use of the word "daily" in the second sentence conflicted with the Monday- Friday limitation of the first sentence. Staff's position has been that there appeared to be a conflict given that Special Condition #1 of Coastal Development Permit No. 5 -93 -137 (that contains a similar net public area limitation) applies 7 days a week. Staff now believes that there is no internal conflict as the use of the word daily refers to the specific limitation outlined in the first sentence in that the barrier and area limit before 5PM must be in place Monday, Tuesday, Wednesday, Thursday and Friday. There is no disagreement that Special Condition #1 of Coastal Development Permit No. 5 -93- 137 and Condition No. 6 are in conflict. The operator admits to opening the entire dining room on weekends and Planning staff and the Police Department have observed the entire dining room open on weekends prior to 5:OOPM. It is staff's present belief that this practice is not in violation of Condition No. 6 and it is in conflict with Special Condition #1 of Coastal Development Permit No. 5 -93 -137. The City agreed to enforce Condition No. 6 in 1994 in a letter to the Coastal Commission. The City Attorney's office has indicated to staff that enforcing conditions imposed by a different jurisdiction is not advisable. Due to the fact that parking problems or other operational nuisances are not occurring during the day before 5PM, staff is not recommending a change to Condition No. 6. Other Changes to Conditions Several additional changes to the conditions are recommended (Exhibit No. 4). In addition to changes discussed previously in this report, several noteworthy changes to other conditions and new conditions are recommended that should reduce the impacts of the Newport Beach Brewing Company on the neighborhood. • Conditions #2 and #4 have been complied and are no longer necessary. • Require a trash enclosure cover (amended condition - #14). • Condition #15 regarding a perimeter wall and underground utilities was waived previously and the condition is in essence a finding, and therefore, this condition is also no longer necessary. A wall cannot be placed between the parking lot and the abutting residences as it would interfere with parking and a wall will not block noise from reaching the second level of the abutting homes. • Closure of the parking lot entrance when necessary and thus relocating the queue to Newport Boulevard (new condition - #19). • Discourage loitering at all time employees of the use are present (new condition - #20). Newport Beach Brewing Company January 4, 2007 Page 8 • Posting of signs to alert patrons of the need to be courteous of neighbors while outside the establishment (new condition — #21). • Requirement of a security operations plan to be reviewed and approved by the Police and Planning Departments (new condition - #22). • Prohibiting deliveries and property maintenance activities between 8PM and 8AM daily. Property maintenance activities listed include anything that might create objectionable noise (new condition - #23). • Maintenance of a Type 23 or a Type 75 ABC license with changes in the type of license to be reviewed by the Planning Commission (new condition - #25). • Prohibition of live entertainment or dancing (new condition - #25). • Prohibiting the exclusion of persons under the age of 21 (new condition — #26). • Staff proposes two future reviews by the Planning Commission (6 months & 1 year) as a means of monitoring the use (Condition No. 27). Summary Staff believes that there is sufficient evidence based upon the staff investigations and testimony given by members of the community and the operator at the prior meetings to warrant modifying the conditions of approval to alleviate detrimental conditions associated with the operation. Staff does not believe that there is sufficient evidence to warrant revocation of the Use Permit and staff does not recommend reducing the hours of operation either at this time. The operational changes instituted by the Brewing Company, the revisions to the conditions of approval and with the Brewing Company's recognition that they need to operate in a responsible manner taking into account nearby residential uses should be effective in avoiding future problems. ALTERNATIVES The Planning Commission has three options to the recommended action: 1. The Commission can take no action. 2. The Commission can revoke the Use Permit. Should the Commission choose this action, staff will bring back a resolution at the next meeting to consider. 3. The Commission can adopt other changes to the conditions of approval including a reduction in the hours of operation. Staff has drafted a resolution reflecting the modification of the conditions of approval as noted in this report, but unfortunately a through review of it by the City Attorney's office was not possible. The resolution will be forwarded to the Commission in advance of the meeting for consideration. $--113 M Prepared by: I/v J es Campbell, Senior Planner Exhibits Newport Beach Brewing Company January 4, 2007 Page 9 Submitted by: �o^ ZIP David Lepo, Plan n Director 1 IA: —.400 from Abigdst 17, 2996 meeting 2. Code Enforcement report 3. Police Department report 4. _ eandifiena M OV Exhibit No. 2 Code Enforcement memorandum Eix 6*6 N Code EnAn avih+ f*N*MrAvw% August 17, 2006 Newport Beach Planning Commission Subject: Newport Beach Brewing Company 2920 Newport Blvd Newport Beach, CA 92263 On January 26, 2006, I received a complaint letter from residents of Cannery Village regarding the Newport Beach Brewing Company (NBBC). In the letter, they expressed their concern that NBBC was violating conditions in its use permit. The complaints filed were in regards to: (1) the NBBC patrons' behavior in the parking lot at night and early morning; (2) nuisance(s) from noise caused by property maintenance activities; and (3) full use of the restaurant before 5 PM. Based on these complaints, a code enforcement case was opened and an investigation was conducted to determine what/if any violations did exist. In response to the concerns that the patrons were extremely loud and noisy, I made three visits to NBBC at night. On the first night, February 2, 2006, I arrived at approximately 9:45 PM. I walked around the parking lot which was relatively clean. I walked around the bar to listen for music or voices coming from the bar. No music or voices could be heard from the front of the bar. Voices could be faintly heard coming from the patio area. There was no cue -up line when I entered and when I exited the NBBC. I stayed for approximately a half -hour. I went back on February 4, 2006 arriving at approximately 9:45 PM. My observations were the same as the prior visit. The parking lot was clean and relatively quiet. There was no cue -up line when I arrived. The bar, however, was much busier than my first visit. Once again, I stayed for approximately a half hour. I made a final visit on February 10'h, 2006. On this night, there were patrons in the cue -up line that were quite noisy. There were also 2 female patrons in the parking lot screaming at each other. I spoke with the on -duty manager, Jerry Kolbly, and discussed with him my concerns about the noise in the parking lots coming from his patrons. He agreed to place extra security in the parking lot and advise individuals in the parking lot to keep their voices down. I also discussed some of the other complaints from the letter with Jerry. We discussed the trash in the parking lot, noise from the bar, and the early morning property maintenance. Jerry agreed to have his staff monitor the parking lot for trash, clear patrons from the parking lot after the bar closed, keep the door to the bar closed so that noise volume would be reduced, and speak to the individuals who were doing clean up to quiet down so as not to disturb the neighbors. Since that conversation with Jerry, 57-13 I have only received one other complaint about noise from people in the parking lot. The complaint was related to drunks screaming in the alley way in the early morning hours. In response to the complaints of noise from property maintenance activities, 1 spoke with Kolbly again and asked him to have deliveries made after 8:00 AM. I also asked him to have property maintenance activities conducted after 8:00 AM. He agreed to do so. After that conversation, 1 did receive complaints along with photos of early morning deliveries and bottles being picked up. After receiving the January 2006 letter, 1 also began to make regular inspections of the parking lot and surrounding area to determine if litter and trash were being left. 1 drove by the parking lot as part of my daily visual drive -thru of Balboa Peninsula. It was my determination that the parking lot and surrounding areas were kept relatively clean. 1 did advise Kolbly to have his staff monitor the parking lot, especially at night and early morning and the trash enclosure. As noted above, 1 had previously mentioned this to Mr. Kolbly when speaking to him on the night of February 10th' 1 brought the issue up to ensure Mr. Kolbly was aware of the complaint and so that he could continue to monitor the parking lot and trash enclosure. Mr. Kolbly stated that he had staff already monitoring the parking lot but he would speak with them to make sure they kept a closer watch. Lastly, it was noted in the complaint letter that the NBBC operates in a net public area greater than 1,500 square feet prior to 5 PM daily. 1 made a visit to the NBBC on February 22nd and observed that a portion of the bar was cordoned off and closed. On that day, the portion of the bar that was closed off was just to the right of the patio. I reported this observation to Jim Campbell, Newport Beach Planning Department. Matt Cosylion Code & Water Quality Enforcement Officer cc: Jim Campbell, Senior Planner Aaron Harp, Assistant City Attorney Jerry Kolbly, NBBC s- 164 Exhibit No. 3 Police Department Investigation report Erh�b�V No.3 ?dic�Dp�4b� �s1:9atE;or� CITY OF NEWPORT BEACH POLICE DEPARTMENT November 3, 2006 TO: Sgt. R. Vallercamp FROM: Detective D. Stark SUBJECT: INVESTIGATIVE REPORT- NEWPORT BEACH BREWING COMPANY Case Initiation: On 8/22/06, Assistant City Attorney Aaron Harp asked NBPD to assist his office and the Planning Commission in regards to the Newport Beach Brewing Company (hereinafter referred to as NBBC). Mr. Harp identified nine different questions regarding the NBBC abiding by their Conditional Use Permit (CUP) and asked the Police Department to investigate. Investigative Results: The Special Investigations Unit of the NBPD reviewed Patrol related calls from the CAD System and coordinated with Patrol Officers and shift supervisors to increase their awareness and the need for documentation of incidents that involve the NBBC. There have not been any Patrol related problems noted in the last two months. Most Patrol Officers commented that the NBBC is rarely a problem. Undercover detectives from Special Investigations visited the NBBC and conducted surveillances of the surrounding area on six separate occasions to help answer the following questions. Questions l - 9: Question #1 dealt with the possibility of the NBBC being operated as a bar (rather than a restaurant) on specific days and at specific times, especially between 2200 hours and 0100 hours on Friday and Saturday Nights. The answer to this is very subjective and probably inconclusive. The NBBC did have on- duty security employees working. Security employees were present the entire time during each evening visit by Detectives (8- 31 -06, 9 -1 -06, 9 -2 -06, 9 -3 -06, 9 -8 -06) One security employee was monitoring the entrance and one or two others were circulating throughout the restaurant. On 9/8/06, we had a Police Cadet who was 20 years old attempt to enter by herself after 2200 s -rG hours. When the door security employee learned she was under 21, he apologized and said, "We don't let anyone under 21 inside after 2200 hours unless you're with a parent or other adult." The staff kept the crowd /occupancy at a reasonable level. Even after waiting in line to enter (after 2300 hours on a Friday night), we found several tables available to sit at. They served their full menu (appetizers and entrees) until they closed at midnight. They did not have live entertainment, DJ's or dancing. Question #2 inquired about the noise being generated by the restaurant. Investigating officers observed the entire exterior perimeter of the restaurant throughout the evening and night on five separate dates (Thursday, 8/31/06, Friday, 9/1/06, Saturday, 9/2/06, Sunday, 9/3/06, and Friday, 9/8/06). The only noise came from the patio area which bordered Newport Boulevard. The noise was from patrons talking (not from amplified music). The noise would be drowned out when multiple cars passed the location. The rear or bay side of the NBBC remained quiet and trouble free during the restaurant's hours of operation. The only door that remained open was the patio door which faced Newport Boulevard. All windows were kept closed and on one occasion (9/2/06 at about 2200 hours); when a patron opened the window, the security staff immediately responded and closed the window. The rear (bay side) doors, when being used as the entrance /exit, were kept closed except during ingress /egress of patrons. Question 93 asked if the NBBC had the proper signs posted inside the establishment. The Occupancy was clearly displayed on a large sign above the rear door (facing the bay) reading "Occupancy 160." This number is consistent with the occupancy certificate in our ABC file. Additionally, there were several signs clearly posted on the interior, side and rear of the exterior, requesting quiet and respect for the neighbors. Question 94 dealt with the exterior of the NBBC including the parking lot, sidewalk, alleys and surrounding areas. None of the detectives noticed any significant noise or disturbances attributable to the NBBC. During the late night hours, after the NBBC was closed, we noted several groups of people returning to their cars from the area of the intersection at Newport Boulevard and 30th Street. These people would often have loud conversations, however, there was no loitering, drinking, public urination or other activities observed. The NBBC security staff was observed outside, monitoring their portion of the parking lot during and after closing time with a flashlight. Considering the exterior signs, closed windows, movement of the entrance after hours and patrolling of the rear parking lot, I would say that the NBBC is making a concerted effort to reduce noise and related problems for their neighbors. Question #5 asked if the Brewery Employees had received the proper certifications. On 9/6/06, Alcohol Beverage Control (ABC) Investigator D. Shaver gave LEAD Program training (Licensee Education on Alcohol and Drugs) to 17 NBBC employees. The LEAD l�7/ Program is a voluntary prevention and education program for California retail alcohol sales licensees, their employees and applicants. The program length is 3 1/2 hours and the mission is to provide training on alcohol responsibility and the law. Another training class was offered on October 4th and 2 more employees attended. The 3 remaining employees who have not attended this class have been taken off the schedule until they complete the training. Question 96 dealt with "Calls For Service." Since previous reports have been compiled prior to 8/10/06, this report will address calls after 8 /10/06. Five calls for service were associated with the NBBC address from 8/10/06 to the present. One was a traffic stop by a Patrol Officer (unrelated to the NBBC). Another was a noise complaint by an anonymous caller which Patrol Officers cleared as unfounded. On 8/19/06 at about 0058 hours, Jill Marcowitz called to report a large group of people yelling and screaming in the parking lot. Patrol Officers were dispatched at 0124 hours and arrived a minute later. The Officers cleared after advising that the NBBC was shutting down. It is unknown if the disturbance was still occurring when officers arrived. On 9/12/06 at about 0337 hours, Bruce Low called in a noise disturbance regarding a grease recovery vehicle that was parked in the alley on the east side of the NBBC and actively pumping out grease. A Patrol Officer responded at 0339 hours. I spoke with the responding officer (Dugan) who explained that he arrived as the grease truck had finished pumping. The noise made by the truck when he was present was minimal. Officer Dugan remained for about 4 minutes until the truck left. I was also forwarded an email regarding this disturbance written by resident Bruce Low which included photos. On 9/16/06, an anonymous male cell phone caller reported being assaulted by NBBC security. Patrol Officers responded and no assault was substantiated. The units observed that the caller was intoxicated and he left the area. The Officers cleared the scene logging an assist. Question #7 asks about the line to enter the restaurant. On the days when investigators entered the NBBC before 2130 hours, the entrance was on the bay /parking lot side of the restaurant. Depending on the night, sometime around 2130 to 2200 hours, the entrance would be moved to the Newport Boulevard side of the restaurant. Signs would be placed on the rear entrance doors telling patrons that the entrance was at the front of the building. They would also place a three foot tall folding sign on the ground in front of the rear entrance saying the same thing. Signs would also be affixed to the inside of the rear doors saying, "NOT AN EXIT." The NBBC would place line delineators along Newport Boulevard to organize and control patrons waiting in line. A restaurant security employee was at the front of the line monitoring the occupancy and checking ID's. Lines were observed on several occasions, usually after 2300 hours on Friday and Saturday nights. On a Friday night (9/8/06) at 2300 hours, I waited in line for about five minutes prior to entry. When I was let inside, there were still three unoccupied tables. S—le*' Question #8 asked if litter was present in the parking lot. Undercover detectives visited the NBBC six times and numerous parking lot and perimeter checks were conducted. No one observed any trash or other discarded items that would draw their attention. Question #9 addressed CUP condition #6, a provision that a portion of the restaurant remain closed prior to 5 p.m. (reduction in Net Public Area). Detectives also visited the NBBC during the lunch hour on Wednesday, 8/30/06 at about 1 130 hours. They noted that the area in the restaurant adjacent to the brew kettles was the only section open for the small lunch crowd. The other areas of the bar and restaurant were closed. On Sunday 10/08/06, Detectives visited the NBBC, arriving at about 1230 hours. They noted that the restaurant was completely open with patrons occupying tables in all areas (no sections were closed off). When they arrived, they estimated that the restaurant was 70% full and when they left at 1430 hours it was 90% full. The. primary attraction that day was NFL Football. The rear, parking lot entrance doors remained closed when not being used for.ingress /egress and no unreasonable noise was emanating from the establishment. .5--/l Planning Commission Minutes 01 /04/2007 Page 6 of 24 issioner Peotter asked about Condition 36 with approval by the City 3 cuts. answered it would not be approved by City Council but would the City Traffic Engineer. r. Lepo sugksted adding, 'or appropriate approval authority.' ommissioner E n pointed out that he believed that the condition was originall). ,orded correctly, there is a City Council policy to the effect that City Counci pproval is required new driveway encroachments that remove street parking ,hen there are alleys vailable to provide parking and vehicular access to thf roperties involved. r. Murillo added that this c dition was specifically at the request of the Put erks Department for City Cou it approval. ommissioner Peotter asked about ondition 27, stating it seems redundant. r. Murillo noted there are alternatives uch as fire sprinklers. We are requiri at the applicant comply with standard B ding Code and so I highlighted some e issues that the Building Department rai d. ;cussion ensued on the responsibility that th applicant will have to notify a cant when they are entering a lease and that the applicant would eventua II the property, he would have to disclose and re rd as a deed restriction. reed that this disclosure will be part of the lease. on was made by Commissioner McDaniel and secaqded by Commissio kins to approve Use Permit No. 2006 -001, Modification ermit No. 2006 -C Line Adjustment No. 2006 -010 subject to findings ftd Conditions ification that a new drafted condition that reflects a notific on to tenants as potential buyers. Toerge noted he supports this project with the modific'djions to ommissioner Eaton noted he would not support this motion as this proxct appropriate. The General Plan has been changed and now says residential permitted in the central portions of lots in the Cannery Village. Trying >mbine residential with commercial creates several problems such as 1 edification request on the FAR, the modification request on the parking in fn id creates the fact that the driveway cuts have to go to City Council and all at because the standards don't work. The compatibility problem with Rudy's, )ite of the cooperative attitude that has been expressed by both the applicant a vner of Rudy's, will come back as a major issue. This project should wait u e new Implementation Ordinances have been adopted for the General Plan a much better oroiect could be sited on this orooertv. yes: Peotter, Hawkins, Cole and McDaniel Noes: Eaton and Toerge bstain: None EJECT: Newport Beach Brewing Company (Use Permit No. 3485) I ITEM NO. 3 http://www.city.nev,fport-beach.ca.us/PlrLAgendas/mnO I 042007.htm 03/19/2007 S °70 s Planning Commission Minutes 01/04/2007 2920 Newport Boulevard he Newport Beach Brewing Company has operated a restaurant/brewp ursuant to Use Permit No. 3485 since 1994. This permit was issued by the City 993 and it was subsequently amended in 1999. The City has received seve omplaints related to the operation of the use and the Planning Commission 1 valuate the complaints, the operational character of the use and the conditic nder which the use operates. At the conclusion of the hearing, the Commiss iay require alteration of the operation or it may delete or modify conditions pproval. The Commission also may conclude that no changes are necessary a evocation of the Use Permit may be considered at this time. ommissioner Hawkins noted that due to a financial conflict, he was mself from deliberation on this item. David Lepo noted that a request for a continuance on this matter had be ived from Mr. Bruce J. Low to allow some of the residents in the area id. Following discussions with Mr. Low, that request was withdrawn. Lepo noted that the conditions contained in the staff report were those tha re agreed upon by the applicant. He noted that he has read the historica xmation on this subject and in talking with all parties concerned, there have an improvements with the current operation. By admission of the applicant y noted the residents did have valid concerns that they have hence beer tressed. There is an understanding that there is not just one establishment tha s created the problem in the area, so there is a range of opinions on what th( >ropriate action by the Planning Commission should be by local residents. are is an issue that remains on the restriction on the amount of eating area tha available on the weekdays and the weekends. This is an issue for th( nediate residents due to lack of guest parking during the summer months. ether concern is the hours of evening operation. The Planning Commission car urge the hours, however, there is more of an interest on the amount of eatin( a. Staff is asking for direction from the Planning Commission. r. Campbell, Senior Planner, gave a brief overview of the staff report noting: • The Brewing Company has volunteered: when a queue forms at 9:30 0 10:00 in the evening, they will move it and take patrons in from the Newpor Boulevard side of the building. • They have instituted an enhanced security operation with more parking 10 patrols. • They have sent all their employees and owners to training under the LEAD: program as conditioned. • Bottle recycling - no dumping outside during late hours to prevent noise. • They have agreed to put in a trash dumpster cover to provide visual relief. • The conditions of approval contained in the December 29th memorandum are reflective of all these changes in total. The Brewing Company is agreeable to the changes. • At Commission inquiry, he noted these voluntary changes have occurre( since the last meeting, and there was one police investigation report date( October 2006. Commission inquiry, Assistant City Attorney Mr. Aaron Harp noted: http: / /www.city.newport- beach. ca.us /PlnAgendas /mn0l 042007.htm Page 7 of 24 PA2006 -177 Approved 03/19/2007 S-21 Planning Commission Minutes 01/04/2007 • In order to modify a condition of a use permit, either there has to be determination of grounds for revocation, or, if in complying with our Ii condition regarding the health, safety and welfare, you can find a violation, • In this instance, if there is an agreement regarding voluntary modification conditions, then you don't have to find those grounds for revocation exist. • If there is not an agreement what the modified conditions should be, y would have to find that there is grounds for revocation in order to modify t conditions. • Based on the presented evidence from what I see the grounds do ea based on primarily the testimony that came out of the initial meetings. • What we have seen from the Brewery is a willingness to work with the C to resolve the problems associated with the facility. • Based on the police report that was prepared, and from the independ( investigation, it appears that those initial violations of the use permit ha been corrected by voluntary measures taken by the Brewing Company. • What they are proposing is reasonable and everyone agrees as to what t conditions should be. There may be some disputes whether a few of the should go a little farther as some of the residents would like to see chang that the Brewing Company is not in agreement with. • Overall, the Brewing Company has taken substantial steps to take corn the violations. • There seems to be some ambiguity as to what the condition of the Coas Commission was to begin with. Correspondence that went to the Coas Commission said what the condition that is contained in the use permit se now. It says Monday thru Friday at 1500 square feet. It did not say the was a condition that would enforce that to be daily. There are de restrictions and if the California Coastal Commission wants to find that the are violations to those conditions, those are other agency's concerns. • Our condition is clear as to what it says and It does not mirror what 1 California Coastal Commission says. • No change to Condition 6 is being suggested by staff. Craig Frizzell, Detective Services Commander of the Police Department, noted: • Following the last meeting on this subject, a police investigation w conducted at the request of the City Attorney's office. • There was a total of 7 visits between the end of August thru the last day October. • The last visit was specifically to address Condition 6 to see if the ent restaurant was opened. • The other visits were primarily during prime time weekend evenings w multiple detectives from vice and intelligence units. • We did not find much of anything that went on there. • They would scour the parking lot and order food in the restaurant until ji before closing and took an underage minor to see if she would be allow in, she wasn't and was told by the door person that no one under 21 coi enter in after 10:00 p.m. without an adult. • This operation has never been a problem. However, it is the area whe there is an over - concentration of licenses. • Reporting District 15 has 73 liquor license in an area that is .327 sque miles. That is the problem, this operator we do not believe is the problem. • At Commission inquiry he affirmed that the investigations happened late night. http: / /Nv%vw. city. newport- beach.ca. us /PlnAgendas /nin01042007.htni Page 8 of 24 03/19/2007 S,-Z7 Planning Commission Minutes 01/04/2007 • There would be no difference if this investigation occurred during summer or any other time of the year. • Based upon his experience, this was a comprehensive investigation. • We will continue to pay visits in time to be sure that they are still compliance. Campbell noted that the Brewing Company is voluntarily keeping the kitcher i until the establishment closes. Anyone who wants to can order from the ful U. rman Cole asked for a discussion on the difference between a bar and a F the oriainal Council intent as to whether this was a bar versus Lepo noted: • Per the minutes of the Council 1999 meeting when they approved the T 75 license, the intent was well intentioned; however, the terms of the permit would have made it very clear and specific enforceable condition memorialized that premise on which the permit was granted, which was applicant wanted to get this license to get more food served after the ht of 10 or 11 o'clock until 1 o'clock in the morning. • That was the understanding, but we could have done a better job with conditions. Harp added that he had reviewed the minutes and it was clear that the intr is to have food served up to closing, that it operate in a restaurant -like manr rere alcohol was sold as well. What was initially seen when the Brewery car was there were no condiments on the table, no food was sold or it was a of rited menu, and basically it turned into a bar at night. The changes that th ve now made have turned it back into more of what the original intent w rich is a full menu with condiments available and operation more like term restaurant/brewpub is in all the conditions and the facility is operating mer McDaniel asked about an age requirement for entrance into or accompanied by an adult? Harp answered that they do allow people under the age of 21 in mpanied by an adult. Lepo added that the LEADS (Licensing Educational on Alcohol and Druc ram and discussion with the Police Department tells you that any place witl )r license should be responding that way. The employees are instructed manner as the program does not distinguish between establishments. rmmissioner McDaniel noted it still means it is a bar more than it is a restaurant. a bar that sells food. Discussion continued on definitions, Condition 10 nutes from 1999 and interpretations. ssioner Cole noted that the issue to be discussed tonight is whether modify or revoke the use permit for the Brewing Company. He asked http: / /www. city.newport- beach. ca .us /PlnAgendas /mn01042007.htin Page 9 of 24 03/19/2007 S - ?3 Planning Commission Minutes 01/04/2007 :ers keep their comments on the issues of after hours, behavior, ical conditions. comment was opened. Kolbly, General Manager of the Newport Beach Brewing Company, noted: • The queue line change has worked well. • The full menu has been advantageous especially with the boat para parties that came in for food. • In 1995, they had a Type 23 beer and wine license with hours from 11: Sunday through Thursday and 1:00 a.m. on the weekends. • In 1999, they got a Type 75 liquor license and lost 1/2 hour Monday throu Thursday, and the weekends are still 1:00 a.m. • In 1995, when they opened up, they had the policy of carding people of 10:00 p.m., which is the same policy today to protect their license. • The LEADS certificate program has been the better instructional program. • There is an open door policy and the establishment is run the same w anytime of the week so the police can come in anytime and do investigation. • Every brewpub cards after 10:00 p.m. in order to protect their licenses. • There are other restaurants that card as well as the brewpub. • We still maintain a higher percentage of food sales than alcohol sales a have since day one. • At Commission inquiry he noted he would not agree to a modification Condition 6 closing down part of his establishment on Saturdays a Sundays. There are a number of families that come in to be served and L that space. ien Miles, attorney representing the Newport Brewing Company, noted that had been distributed to the Planning Commissioners as part of J. He gave an overview of the brief, noting: • Directions given to the applicant were to be solution- oriented and addre, the concerns of the residents, which they have done. • Line relocation to the front of the building was an effort that included tena improvements assuring safety and effectiveness. • Security Plan - letter sent to residents regarding security beyond the hou of operation of the Brewing Company. The security team is on site minutes after closure and deal with the City's Municipal parking lot as w as the Brewing parking lot. • LEADS program - alcohol training done for owners, operators ai employees focusing on the prevention of underage drinking. Carding is important element. • If there is an effort to challenge the permit condition than that would be tl preferable option. Condition 6 in the use permit is clear and we have N several years implementing it. There is case law on point directed to 0 California Coastal Commission unable to, after a justifiable reliance on vested right, come back and change it. • He then noted that he made reference to the October 13, 1993 letter. • He stated that the hours before 5 p.m. are high food volume hours. • The Brewing Company is pushing food as they have the issue of alcoh http://www.city.newpoi-t-beach.ca.us/PlnAgendas/mnO I 042007.htm Page 10 of 24 S_� `/ 03/19/2007 Planning Commission Minutes 01/04/2007 versus food sales receipts. . At Commissioner inquiry, he noted that they have read, understand agree to all the recommended changes to the conditions as contained in staff report. (12/29/2006 supplemental report) comment was opened. Wetherhault, local resident, noted: • His disappointment with the Planning Department and City Council as appears that they focus on aspects of how to get around issues if there is threat of a law suit. • He noted circumstances with a rehab facility in the area. • There is a parking issue before 5 p.m. on the weekends. It was clear the what Coastal Commission reflected as that space was for seven days week, not just Monday through Friday. He wants to see the City star enforcing the Coastal mandates. • The City Council approved the Brewing Pub with the CUP's put forth by th Coastal Commission; they should be reflected. • This establishment is a bar after 9 p.m. and this area has a heav, concentration of bars. This was supposed to be a restaurant and it is nov more of a bar- . I would like to see reduction on Friday and Saturday by 2 hours; have then shut down by 11 p.m. like other restaurants. • Our neighborhood is impacted by after hours activities in the parking lot, south of the Brewery. At Commission inquiry, he noted that he has no direc proof that people come from the Brew Pub. nmissioner McDaniel noted that the Brew Pub has made changes to elimin blems in their parking lot. It is not fair to say that their patrons are responsi activities in parking lots further down by the residential area. Reese, local resident noted: • His concern of reading what happened in 1993 and 1999, there was r doubt that the intent was for this to be a restaurant. Ancillary to that the would serve alcohol and have a brew type company environment. • Wth security guards at the doors and bouncers inside, it is a b atmosphere. • You have to decide whether you want them to be a restaurant or a bar. • I disagree with the Police Department, the Brew Pub is part of the problem. • Every weekend he is awakened by people leaving the drinkir establishments. • There needs to be leadership and a decision made as to whether this is be allowed. • Conditional use permits have to be enforced. • They should be a good restaurant, not a bar. • What needs to change in Cannery Village is the impact of the amount alcohol being served at night. r Staid, local resident, noted there is still a problem with the operation of the wing Company and there needs to be conditions to see that it becomes better. added that there still continues to be a problem Monday through Friday anc http://www.city.newport-beach.ca,us/PlnAgendas/mnO I 042007.htm Page 11 of 24 S--2 S 03/19/2007 Planning Commission Minutes 01/04/2007 if the loading area could be moved from the front during the week after .m. ephanie Rosanelli, local resident, noted her opposition of this establishm reration for previously stated reasons and noting similar establishments H e City and how they operate. She stated noise is a problem and suggested restaurant would be a better business value. Martin, local resident, noted that he has the same problem with house in Corona del Mar. blic comment was closed. iirperson Cole asked about the suggestion to reduce the hours of the bar weekends, noise and unruly behavior; Campbell answered that the continuation of the substantive changes that ruing Company have initiated has improved the situation. Staff did not h 5e to suggest a reduction of hours. 4r. Lepo noted that these people live there and have witnessed instances tha ave happened that were not seen by the police. As far as the comment for the ours, that was the key thing that should have occurred during 1999 and it didn't. you didn't want it to be a bar, then the hours of operation should have beer mited to 10 or 11 p.m. I read through Condition 10 and it doesn't guarantee wha was intended to do. You have the option to make it be a restaurant but wha haracteristic would change? They have a full kitchen, they don't have livc ntertainment and dancing, they have regular meal service until 1 in the morning o they can serve alcohol until that time. They are complying. However, s Bstaurant should have been limited to the hours of 10 or 11 p.m. If that is the irection, staff can come back with the necessary finding for grounds fo avocation and therefore you can limit the hours. I have sympathy for the owne nd the residents alike. immissioner McDaniel asked that instead of cutting their hours, cut the h it they can serve alcohol. It seems that would solve the problems. The pe for a restaurant that shall not be construed as a bar. Testimony is from plicant that 90% of the sales after 11 p.m. is alcohol. Harp added that there is evidence as presented that they did not have regc it service and that they did violate Condition 10. If that is where the Plann emission wants to go, there is a foundation that can be made to find that. dition 10, as written, talks about regular meal service. However, staff c e back with the possible finding for legal grounds to revoke the use pen lify the use permit or basically approve the suggested conditional changes t been agreed upon by the operator. continued on the 1999 Council minutes, enforcement of future uses, grounds for revocation and standards. ;ommissioner Peotter noted he could support the modified conditions but has roblem with the issue of carding, as most restaurants do not card. Rather tha mit hours, he suggests that there would be no carding at the door, which puts th urden on the employees when they serve drinks to do the carding at tables or s http: / /www. city. newport- beach. ca.us /PinAgendas /mn01042007.htm Page 12 of 24 S'-?6 03/19/2007 Planning Commission Minutes 01/04/2007 ie bar. He also suggested that this come back in six months for another r nd if they continue to improve, they can continue to operate and if they iaybe then we can reduce the hours. issioner Toerge noted: • This facility is operating as a bar. The operation does have conditions an they have been established for many years. • The conditions could have been more clear and I think the City needs 1 take some responsibility for that. • There is a problem down there but there is an inability to tie all thes complaints specifically to the Newport Beach Brewing Company. I dor think we can ask them to correct the regional problems occurring dow there. It is not fair. • The Brewing Company has taken responsible steps to implement th characteristics to minimize the problems, it won't correct them all, but I wor commend them for that. Frankly, that is what they should have been doin from the start. • He noted that it should close at 11:00 p.m. and the condition needs to b modified • This item should be brought back for another review. During that time there are problems, then they can be documented and then we will be abl to address the issue; however, there is no evidence today to call fc revocation today. Cole noted that there is a condition that has a review of 6 months or Commission inquiry, Mr. Harp read Condition K regarding the modifyi ditions to the Use Permit and Zone Code Sections 20.89.060 and 20.96.040. imissioner Eaton noted that the neighborhood problems are not all caused I facility. We should adopt the modifications to the conditions that the applica agreed to and we should review this in a year. imissioner McDaniel noted his concern of current operations, the run with the land and allowance for this to come back for review. continued. City Manager, Sharon Wood, noted: • This was the first use permit issued under the then brand new Alcoholi Beverage Outlet ordinance. • Amendments to use permits had been requested for full alcohol sales and /c to extend the hours of operation. • The City always wanted to prevent them from becoming bars and wante, them to be restaurants, and for a while we conditioned the amount of sale for food and alcohol, but that was hard to track. • The next thing we thought to do was to extend the hours but maintain the they were a restaurant and provide full meal service until closing. Th, thought was that if nobody was buying full meal service until that time, that wouldn't be a reasonable business decision for them to continue and the http: / /www. city.newport- beach. cars /PlnAgendasJmn01042007,htm Page 13 of 24 S — ?7 03/19/2007 Planning Commission Minutes 01/04/2007 would shut down when the full meal service was no longer reasonable f them. • That condition has recently been working in this case because Mr. Kolt has said he has reinstituted the full meal service and patrons are takir advantage of it. • We could have done a better job, but Mr. Lepo is reading that conditic correctly and the provisions in the ABO Ordinance for revocation modification are the other protection that carries forward over time so th even if they are doing the full meal service for all the hours they are open, they are still having these problems in the parking lot, that still gives tl Commission grounds to consider modification and or revocation. airperson Cole noted he shares the concerns expressed by the Commission. wever, the Assistant City Attorney has given us the leeway under the ABC finance that would allow us to fine adverse impact to the neighborhood. W( ie grounds to modify or revocate if the Commission desires. The main issue: they relate to a bar comes down to noise, unruly behavior, trash and parking. I Dears that there is willingness and desire to make changes and the operato )ws there will be scrutiny going forward. I believe a short period for review fo to continue monitoring and ask the neighbors if there are issues, we can dea h them. I would like to see us approve the conditions submitted by staff an( Droved by the operator. I am open to limiting hours in the future and that mai the one condition that would solve most of these problems. r. Miles, representing the attorney, noted: Whenever there is queuing, we would relocate the line to the front of building. They agree to a review in 6 months or a year. ommissioner McDaniel noted that this has been a good opportunity for thr perator and the public to talk. It is not the intent of the Commission to pu nybody out of business, but it is clear that everyone needs to be good neighbors. e suggested that the review be done after the summer, possibly October 2007. otion was made by Commissioner Eaton and seconded by Commissic cDaniel to modify Use Permit No. 3485 by choosing the conditions in the m rted December 29, 2006 with the deletion of after 9:00 p.m. from Condition rd the addition in Condition 26 that after the words public hearing, add within iar and if complaints of alleged violations. r. Lepo asked about carding at the door, should this be included in the motion? iissioner McDaniel suggested October 2007 would be the better month. of the motion and the applicant agreed. lowing a brief discussion, it was clarified that Condition 19 would strike after mended motion was made by Commissioner Peotter and seconded ommissioner McDaniel to change Condition 26 to allow people under the age I to enter the establishment with some sort of hand stamping or other protocol at they are not served alcohol. It would allow the establishment to act more li restaurant. http://www.city.newport-beach.ca.us/PlnAgendas/mn0l 042007. htm Page 14 of 24 03/19/2007 Planning Commission Minutes 01/04/2007 Miles noted that the LEADS education and meetings with the Poli artment and other stakeholders within the City, it was confirmed that this is r istent with underage drinking, risk and liability. It is a business judgment ce service. The Brewing Company allows patrons under age with an adult r at appropriate times. Generally, after 10 p.m. there is carding at the do this is a condition that we would not be in agreement to change nor apprc her condition that underage patrons can enter the establishment at any he )ut an adult. 3cussion continued on the LEADS criteria, underage drinking and responsibi the operator. imissioner Toerge noted he would not be supportive of this project if 0 ration can not do whatever means necessary to operate as a restaura ,ing alcohol. To shut this down to people after 10 p.m., clearly states this is and if this is what we are going to say, the hours need to be reduced. If it is aurant it has to stay open. rmmissioner McDaniel noted he agrees with the problem of not being able to the restaurant after 10:00 p.m. due to age.0 :ommissioner Peotter noted he would clarify his motion to add, because of age. n other words, if the guy is drunk or unruly and he is 20, 1 don't want to make thiE hat they have to let the guy in, but for age reasons only I don't want to den) Ir. Miles answered that if the Commission mandates that the Brewing Comp allow entrance at anytime, they can live with that as long as they reserve ght to serve anyone under appropriate conditions but that would not be sc ased on age. on Amended Motion Peotter, Eaton Hawkins McCloskey Residence (PA2006 -046) 212 Crystal Avenue t for a ance to exceed the 1.5 FAR limitation for a single - family in the R -1. rict. Murillo gave an overview�f he staff report noting: • Proposal is a significant alteration an dition to a single family resider that is currently non- conforming due to rear alley setback and number of parking spaces provided. • Project implementation would result in development o 2,657 square f three -story residence. • With the exception of floor area, the structure would be br t i conformance with all development standards of the R -1.5 Zoning Distric . • The project exceeds the maximum floor area established for this site by http://www.city.newport-beach.ca.us/P]nAgendas/mnOI042007.htm Page 15 of 24 ITEM NO. 4 PA2006 -046 Approved 03/19/2007 J � BLANK • .5--" Attachment No. 6 Planning Commission Resolution No. 1709 G -i 1 Mal Xm I, , , a 6_i RESOLUTION NO. 1709 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH MODIFYING THE CONDITIONS OF APPROVAL OF USE PERMIT NO. 3485 FOR PROPERTY LOCATED AT 2920 NEWPORT BOULEVARD (PA2006 -177). WHEREAS, In 1993, the City approved Use Permit No. 3485 subject to findings and conditions of approval authorizing a restaurant/brewpub with a Type 23 Alcoholic Beverage Control (ABC) license to operate at 2920 Newport Boulevard within the Cannery Village area. The restaurant and brewpub began operations under in 1994 using the fictitious business name - Newport Beach Brewing Company; and, WHEREAS, In 1999, the operator of the establishment requested and received approval of an amendment to Use Permit No. 3485. The amendment allowed the restauranUbrewpub to operate with a Type 75 ABC license and the amendment was subject to findings and revised conditions of approval; and, WHEREAS, In January of 2006, the City of Newport Beach received complaints from neighbors alleging that the Newport Beach Brewing Company was violating the conditions of Use Permit No. 3485. Alleged violations included, among other things: operating a bar rather than a restaurant in violation of Condition No. 10; alcohol sales and service in excess of food sales in violation of Condition No. 9; opening the entire dining area on weekends before 5PM in violation Condition No. 6 and in violation of Coastal Development Permit No. 5 -93 -137, trash in the parking lot in violation of Standard Condition E; failure of the establishment to curb unruly patron behavior outside the establishment in violation of Standard Condition D; and inadequate training of the owner and employees in responsible methods and skills for serving and selling alcoholic beverages in accordance with Standard Condition F. Neighbors contend that patrons create noise, cause property damage, urinate, defecate, and conduct sexual activities during the late evening and early morning hours and that the operator was unable or unwilling to discourage or correct these objectionable conditions. Based upon the complaints received, Use Permit No. 3485 was referred to the Planning Commission on May 4, 2006 for review; and, WHEREAS, During the May 4, 2006 meeting of the Planning Commission, testimony from neighbors of the establishment and the operators of the Newport Beach Brewing Company was considered by the Planning Commission. The Commission also considered a report prepared by staff outlining the complaints and discussing potential violations of the conditions of approval. The following facts were identified: • Patrons line up outside the premises to enter the establishment typically Thursdays through Saturday during the late evening or early morning hours. This congregation of patrons created objectionable conditions to nearby residential neighbors and the operator of the use (Newport Beach Brewing Company) did not take all reasonable steps to discourage said objectionable conditions as required pursuant to Standard Condition D. afir, • The operator of the restaurant/brewpub uses security to control occupancy and patrons and minors are excluded from entry during the late evening and early morning hours indicative that the operator of the use was operating the use like a bar rather than a restaurant and brewpub. • The operator implemented a limited "late night" menu and food sales were either discouraged or non - existent or the kitchen was closed before the establishment was closed indicative that the operator of the use was operating the use like a bar rather than a restaurant and brewpub. • The operator of the use indicated that alcohol sales exceed food sales most of the time and that alcohol sales are approximately 90% of sales during the late evening and early morning hours. This high percentage of alcohol sales would not constitute ancillary alcohol sales to food sales in violation of Condition No. 9. • The net public area of the establishment is no more than 1500 square feet Monday through Friday before 5PM and the net public area exceeds 1500 square feet before 5PM on Saturday and Sunday in violation of Condition No. 6. • Owners, managers and employees of the Brewing Company had not undergone a certified training program in responsible methods and skills for serving and selling alcoholic beverages in accordance with Standard Condition F. • The site was found to be generally free of litter and not in violation of Standard Condition E. At the conclusion of the discussion, the Planning Commission determined that there was sufficient information to indicate that the use was operating in violation of the conditions of approval. Additionally, the Commission found that there was sufficient information to warrant consideration of modifying the conditions of approval as changes to the conditions could potentially alleviate the problems reported by neighbors. The Commission directed staff to place the matter on a future agenda for possible action; and, WHEREAS, On August 17, 2006, the Planning Commission held a public hearing regarding the alleged violations of and potential modifications to the conditions of approval of Use Permit No. 3485. The hearing was noticed in accordance with Chapter 20.92 of the Municipal Code and the operator of the Newport Beach Brewing Company was also mailed a notice of the hearing; and, WHEREAS, During the August 17, 2006 hearing, testimony and information presented to the Commission confirmed past violations of the conditions of approval. At the conclusion of the hearing, the Planning Commission directed staff to set Use Permit No. 3485 for possible modification and /or revocation; and, WHEREAS, On January 4, 2007, the Planning Commission held a noticed public hearing on the possible modification of conditions and /or revocation of Use Permit No. sq� 3485. Testimony and a staff report including a report prepared by the Newport Beach Police Department were considered by the Planning Commission. The Planning Commission finds that: • The operator has discontinued the use of the limited late night menu and has made the complete menu available at all hours the establishment is open. • The operator has increased sweeps of the parking lot and exterior of the site to discourage any objectionable behavior from patrons or other people at the site. • The operator has voluntarily moved the entrance of the establishment when a line forms to the Newport Boulevard side of the building, which has reduced conflicts with abutting residential uses. • The operator, owners and employees has successfully completed the L.E.A.D training program in responsible methods and skills for serving and selling alcoholic beverages as required pursuant to Standard Condition F. • The operator is willing to install a cover on the trash enclosure to better mitigate the aesthetics of the existing trash enclosure. • The operator has also made other physical and operational changes as reflected in the modified conditions of approval contained within Exhibit A. • The physical and operational changes have had a positive impact to the neighborhood and have reduced incidents of nuisances, and, WHEREAS, Based upon the information and testimony presented to the Commission, the use was operating in violation of the conditions of approval in the past and the operator has abated all known violations. WHEREAS, changes to the conditions of approval are necessary to memorialize the physical and operational changes instituted voluntarily by the operator that have had a positive effect on the compatibility of the use with the neighborhood. Additionally, changes to the conditions of approval are necessary to clarify the meaning and intent of the conditions to avoid future questions. NOW THEREFORE, THE PLANNING COMMISSION HEREBY RESOLVES AS FOLLOWS: SECTION 1. The conditions of approval for Use Permit No. 3485 are amended to read pursuant to Exhibit "A ". SECTION 2. This action shall become final and effective fourteen (14) 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. 0 PASSED, APPROVED AND ADOPTED this 4th day of January 2007. AYES:Peotter, Cole, McDaniel and Teorae NOES: Eaton RECUSED: Hawkins 64 EXHIBIT A Conditions of Approval Use Permit No. 3485 CONDITIONS: 1. The proposed development shall be in substantial conformance with the approved site plan, floor plan and elevations, except as noted below. 2. Deleted 3. The applicant shall provide a minimum of one parking space for each 50 square feet of net public area before 5:00 p.m. and one parking space for each 40 square feet of net public area after 5:00 p.m. in conjunction with the restauranUbrewpub. 4. Deleted 5. The property owner shall pay for 29 in -lieu parking spaces in the Cannery Village Municipal Parking Lot on an annual basis for the nighttime operation (after 5:00 p.m.) of the restaurant /brewpub use as agreed upon by the Sales Agreement between the City of Newport Beach and the property owner. 6. The net public area of the restauranUbrewpub, which is devoted to daytime use Monday through Friday (prior to 5:00 p.m.) shall be limited to 1,500 square feet. The balance of the net public area shall be physically closed off to the public by a fixed barrier and shall not be used until after 5:00 p.m.. 7. The hours of operation for the restauranUbrewpub shall be limited to the hours between 6:00 a.m. and 11:00 p.m. Sunday through Thursday and between 6:00 a.m. and 1:00 a.m. on Friday and Saturday. 8. All employees shall park either in the privately owned off -site parking area or in one of the municipal parking lots in the area. 9. The operation of the brewery and the service of alcoholic beverages shall be ancillary to the food service operation of the restaurant (e.g. the brewery and the service of alcoholic beverages may not be conducted without the concurrent operation of the restaurant during all hours the use is open for business). The quarterly gross sales of alcoholic beverages shall not exceed the gross sales of food during the same period. The operator shall at all times maintain records which reflect separately the gross sales of food and the gross sales of alcoholic beverages. Said records shall be kept no less frequently that on a quarterly basis and shall be made available to the Planning Director upon request in conjunction with the Planning Commission's review of this Use Permit for alleged violations of conditions. 6 -7 10. The principal use authorized by this Use Permit is a restaurant/brewpub. The accessory operation of a bar is permitted provided that the kitchen remains open for the service of meals and that a full menu is provided. This Use Permit shall not be construed as the approval of a bar, cocktail lounge, or other use with the principal purpose of serving alcoholic beverages during hours not corresponding to regular meal service hours nor as the approval of a cabaret, nightclub, or other use with the principal purpose of providing live entertainment and /or dancing. The kitchen of the restauranUbrewpub shall be in operation to serve meals at all times that the business is open. A full meal menu (including the service of those meals ordered) shall be made available. Menus and condiments shall be available at the tables at all times. 11. No outdoor loudspeakers or paging system shall be permitted in conjunction with the proposed location. 12. A washout area for refuse containers shall be provided in such a way as to allow direct drainage into the sewer system and not into the Bay or storm drains, unless otherwise approved by the Building Department. 13. Kitchen exhaust fans shall be designed to control smoke and odor to the satisfaction of the Building Department. 14. All mechanical equipment and trash areas shall be screened from surrounding public streets and alleys and adjoining properties. The existing trash enclosure shall be covered and the doors or gates to the enclosure shall be modified to be self - closing and self - locking for security. 15. Deleted 16. Should prerecorded music be played within the restaurant facility, such music shall be confined to the interior of the building, and all doors and windows shall be kept closed while such music is played. 17. A special events permit is required for any event or promotional activity outside the normal operational characteristics of this restaurant business 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. 18. Should this business be sold or otherwise come under different ownership, any future owners or assignees shall be notified of the conditions of this approval by either the current business owner, property owner or the leasing company. 19. The parking lot entrance to the building shall not be used as an entrance when a line of patrons seeking entrance to the establishment forms. 20. The operator shall discourage loitering on site at all times the establishment is open or employees or owners are present. 6-5 -3-M 21. The operator shall conspicuously post and maintain signs indicating to patrons to be courteous to residential neighbors while outside the establishment. 22. The applicant shall prepare a detailed security operations and property maintenance plan within 45 days of approval of this amendment to the Use Permit. The plan shall be subject to the review and approval of the Police Department and Planning Department. The plan shall specifically outline methods and personnel necessary to control patron activity on and abutting the project site to minimize or avoid land use conflicts. When security services are required pursuant to the plan, security shall be provided whenever necessary and a minimum of 30 minutes after the posted closing time. The property maintenance portion of the plan shall address activities including, and not limited to, trash pickup, recycling disposal and pickup, grease trap cleaning, cooking oil recycling, brewery servicing, deliveries, cleaning or general building maintenance. 23. Deliveries and exterior property maintenance activities shall not be conducted between 8PM and 8AM daily. 24. The use shall maintain a Type 23 or a Type 75 license to sell alcoholic beverages from the State Department of Alcoholic Beverage Control. No other license type shall be permitted without review and approval by the Planning Commission. 25. Live entertainment and dancing shall be prohibited without an amendment to this Use Permit and a Live Entertainment Permit and /or a Cafe Dance permit issued by the City Manager's Office. 26. The operator shall not prohibit persons under the age of 21 from entering the establishment based solely upon age. 27. This Use Permit shall be reviewed by the Planning Commission at a noticed public hearing on or before October 30, 2007. The Planning Director may schedule additional reviews of this permit if there is a determination that the use directly causes or is contributing to conditions found to be detrimental to the community (this provision shall not be construed to diminish the City's ability to enforce this Use Permit or any aspect of the Municipal Code). STANDARD CITY REQUIREMENTS A. The project is subject to all applicable City ordinances, policies, and standards, unless specifically waived or modified by the conditions of approval. B. Signs and displays shall not obstruct the sales counter, cash register, seller and customer from view from the exterior. C. Loitering, open container, and other signs specified by the Alcoholic Beverage Control Act shall be posted as required by the ABC. D. The applicant shall take reasonable steps to discourage and correct objectionable conditions that constitute a nuisance in parking areas, sidewalks, alleys and areas surrounding the alcoholic beverage outlet and adjacent properties must be taken 6—/ during business hours if directly related to the patrons of the subject alcoholic beverage outlet. E. The exterior of the alcoholic beverage outlet 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. F. All owners, managers and employees serving and /or selling alcoholic beverages shall undergo and successfully complete a certified training program in responsible methods and skills for serving and selling alcoholic beverages. To qualify to meet the requirements of this section a 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 operator shall provide proof of completion for all owners, managers and employees within 30 days of the approval of this amendment and new employees shall successfully complete the training within 30 days of initially starting work. G. The project shall comply with the provisions of Chapter 14.30 of the Newport Beach Municipal Code for commercial kitchen grease disposal. H. All signs shall conform to the provisions of Chapter 20.67 of the Municipal Code. This Use Permit for an alcoholic beverage outlet granted in accordance with the terms of this chapter shall expire within 12 months from the date of approval unless a license has been issued or transferred by the California State Department of Alcoholic Beverage Control prior to the expiration date. J. Coastal Commission approval shall be obtained prior to issuance of any building permits. K. The Planning Commission may add to or modify conditions of approval to this Use Permit upon a determination that this Use Permit causes injury, or is detrimental to the health, safety, peace, morals, comfort, or general welfare of the community. 0 Attachment No. 7 Appeal dated January 12, 2007 7.! rwal 72- CITY OF NEWPORT BEACH APPLICATION TO APPEAL DECISION OF THE PLANNING COMMISSION Application No Name of Appellant � e�� or person filing: C� t N v��V V f 1!j 1Q1 one: j l b Address: �jD�t 0T, `;J t 1 �Q Iv G G x Date of Planning Commission decision: 20 Regarding application of: Tjt• w PDg-:T 2-6w(,W FjL-qt---W dN (s for (Description of application filed with Planning Commission) UA f pet^ ry 4 7-- Lf f5 Reasons for Appeal: TAG V(.kg N6NLT coMA C/f -co,iw ��t1✓1�D To U 1ZVzPbYUc;;6P;,1LlY Puri- 'Cl'h Itt Cdn.i,IGo�L�1ur> 60WILL QMt lT. zk�jD M6 !/ inatiore of Aj>nl§llant CLERK rt i rl W� C j�� Date l y FOR OFFICE USE ONLY gate Appeal filed and Administrative Fee received: �"i .200-7 Hearing Date. An appeal shall be scheduled for a hearing before the City Council within ley (60) days of the filing of the appeal Unless both applicant and appellant or reviewing body consent to a later date (NBMC Sec. 20.95.060) PM-11 1 40 IWO r cc: Appellant j)I111931 I �n Planning (fumish one set of mailing labels for mailing) File 61DZ APPEALS: Municipal Code Sec. 20.95.050(6) 90 :E Rd Z I KVf Appeal Fee: $340 pursuant to Resolution No. 2006 -4 adopted on 1= 14J��� J� (Deposit funds with Cashier in Account #2700 -5000) 7.3 t X21 Q�aEWPOa o CITY OF NEWPORT BEACH ADMINISTRATIVE SERVICES U S 3300 NEWPORT BLVD.. P.O. BOX 1768, NEWPORT BEACH, CA 92658 -8915 G4FOwN RECEIVED BY: PERRYI TODAY'S DATE: 01/12/07 27005000 ZONING & SUBDIVISION F CASH PAID CHECK PAID $400.00 $,_ :f!': D CASH RECEIPT RECEIPT NUMBER: 01000066661 PAYOR: LOW BRUCE REGISTER DATE: 01/16/07 TIME: 15:05:50 $340.00 --------------- - TOTAL DUE: $340.00 5 d�M TENDERED $400.00 CHANGE $60.00 7• 2 �� Attachment No. 8 Letter from Bruce Low dated February 28, 2007 g�/ � BLANK • ,?. 7 Bruce I Low 41129" Street Newport Beach, California 92663 February 28, 2007 The City of Newport Beach Planning Department 3300 Newport Boulevard Newport Beach, California 92663 RECENED BY PLANNING DEPARTMENT MAR 05 2007 CITY OF NEWPORT BEACH Attn: City Council Re: Newport Beach Brewing Company (Use Permit No. 3485) Dear Honorable Council Members, This letter is in direct response to the portion of the Staff Report that addresses CONDITION NO. 6, which can be found on pages 6 and 7 of the Staff Report dated January 4, 2007. I disagree with Staff's conclusion that this condition (restriction of service area to 1,500 square feet) does not apply to weekends. As a matter of fact, The Califomia Coastal Commission also believes the restriction applies seven days a week. The advice of the City Attorney's office to Staff "that enforcing conditions imposed by a different jurisdiction is not advisable." This "low road" path will only force a showdown at the California Coastal Commission which will set back the effort of the City of Newport Beach to have the latitude to issue Coastal Development Permits through the LCP and LUP regulations. It is "an end" run to avoid the clear responsibility of the City of Newport Beach. It is a bad idea. day before 5 PM. "? The Coastal Development Permit (# 5.93.137 dated 1.21.94) under SPEACIAL CONDITIONS 1. specifically states: "Prior to issuance of the Coastal Development Permit, the applicant shall execute and record a deed restriction, in a form and content acceptable to the Executive Director, which shall provide that no more than 1,500 square feet of service area of the subject restaurant/brewpub shall be open before 5 p.m. This document shall run with the land, binding all successors and assigns, and shall be recorded free of prior liens." If this Special Condition intended to limit the restriction only Monday thru Friday, it would state so. Furthermore, the minutes of the September 27,1993 Newport Beach City Council meeting (volume 47 -page 253) also state; "reduce the allowable daytime "net public area" to 1,500 square feet before 5 p.m. "Again, if the Council intended to limit the restriction only Monday thru Friday, the record f 3 j�'2 would state so. The intent of the Coastal Commission and City Council is clear and needs no further speculative interpretation. Logic does not accompany Staffs analysis. An error was made in the preparation of the Use Permit and the Deed Restriction. And even if one mistake leads to another, it does not change the facts, the intent, or the record. For Staff to assume that "Coastal Commission Staff must have accepted this commitment as there is no evidence to the contrary and they issued the Coastal Development Permit shortly in early 1994." is nothing more than a speculative attempt to muddy the waters and skirt ownership of the obvious error in the preparation of the Use Permit and Deed Restriction. Staff has no specific knowledge of the California Coastal Commission's point of view regarding this issue. If Staff can simply decide all matters for themselves, then why bother with city public hearings or even the California Coastal Commission's directives? I am surprised that the Newport Beach Planning Staff has omitted further evidence of the Coastal Commissions intent and directive in the Coastal Development Permit. Planning Staff inquired to Mr. Karl Schwing of the California Coastal Commission pertaining to the intent of the Coastal Development Permit. Mr. Schwing responded in an email on or about July 26, 2006 to Mr. Jim Campbell's inquiry. The following is Mr. Schwing's response: "James, I've consulted with the Planner, Meg Vaughn, who originally worked on this project and we've re- reviewed the file. We've concluded that the floor area limitation imposed by the Commission applies daily, not just Monday through Friday. 1 realize this determination may lead to some problems for the City and the restaurant. However, if there is a viable method of providing parking sufficient to support opening additional floor area space before 5 p.m. (without impacting public parking resources and public access), then the Brewing Company could consider applying for a permit amendment to implement that proposal." The record, the intent of the City Council and the California Coastal Commission, including a recent re-clarification of the Coastal Commission's position, as well as, the available remedy for the Brewing Company are clear and specified. How will the California Coastal Commission be able to trust the City of Newport Beach if they can not even enforce a Coastal Development Permit issue as clear and simple as this one? The Brewing Company has been unfairly and incorrectly taking advantage of a mistake. This is "unjust enrichment." A doctrine that prevents persons from benefiting from the mistake of another. If a bank mistakenly deposits funds into your bank account, you must return them. The counsel for the Newport Beach Brewing Company hangs his hat on an alleged "rule" that allows counsel to believe that Mr. Schwing is not authorized to render the above opinion on behalf of the California Coastal Commission. Counsel believes the Executive Director is the only person authorized to do so. However, Counsel does not take the initiative to request action from the Executive Director and for good reason. Counsel knows the Executive Director would promptly support the decision of Mr. Schwing. Counsel also knows that if the Newport Brewery applies for an amendment to its Coastal Development Permit that the California Coastal Commission will require a complete parking study to accompany the submission. A parking study that will surely demonstrate there is not ample parking available to justify the amendment. The intent of the California Coastal Commission was to prevent a conflict with the public's right to use valuable and limited public parking. The California Coastal Commission has been very vocal and firm regarding parking in the Cannery Village and they believe the parking situation is getting worse every year. The obvious mistake in the Use Permit and the ability of the Newport Brewing Company and the City of Newport Beach to ignore the directives of the California Coastal Commission unfairly damages the rights of the public and causes irreparable and continual harm. Why are we, as a city, afraid of compliance? Therefore, I request that this Council correct the error in the Use Permit, execute a new enforcement letter to the California Coastal Commission, order a new and correct Deed Restriction and enforce the service area limitation seven days a week, as designed and mandated by the California Coastal Commission and approved by the Newport Beach City Council . Require the Newport Beach Brewing Company to return the ill gotten accommodation for the use of the public. Sincerely, Bruce J. Low 8� 5 3 25 � BLANK u rn Attachment No. 9 Letter from Bruce Low dated March 2, 2007 y. i , "A"! 9. 2 Bruce I Low 411 291h Street Newport Beach, California 92663 March 2, 2007 City of Newport Beach RECEIVED BY PLANNING DEPARTMENT 3300 Newport Boulevard Newport Beach, California 92663 Attn: City Council RE: Newport Beach Brewing Company 2920 Newport Boulevard, Newport Beach Use Permit Number 3485 (9/13/1999) Dear Honorable Council Members: MAR 05 2007 CITY OF NEWPORT BEACH The hearing scheduled for March 13, 2007 Is the result of 12A years of effort by the neighborhood pertaining to numerous complaints regarding the abuses which are regularly Inflicted upon the residents and businesspersons in the Cannery Village by the Newport Beach Brewing Company. We had hoped that Staff and the Planning Commission would be able understand to the needs of the Cannery Village and "reel in" the Newport Beach Brewing Company operation pursuant to the existing Use Permit. Unfortunately, Staff and the Planning Commission do not get it! Instead, we are heading towards even more latitude for our already abusive neighbor. With respect to your decisions regarding the Newport Beach Brewing Company, it will be necessary to determine "What exactly is this place? What Is a "restaurant/brewpub "? What is it suppose to be? Is it a restaurant or a bar, nightclub? Condition No. 9 of the current "Use Permit" is a good starting place to define the operation. The 1999 version, which is applicable today, states "9. The operation of the brewery and the service of alcoholic beverages shall be ancillary to the primary food service operation of the restaurant." Staff and the operator convinced a tired Commission to remove the word "primary" from condition No. 9. This is devastating and changes the "restaurant" approved use in the direction of a "bar" approved use. You can not allow this to happen. The Brewery is known as "The Newport Beach, give an inch take a mile, Brewing Company. If you give in here, you will license a full blown bar, night club. There will be no turning back. Never! As a matter of fact, the City can surely expect the operator to make a further request to remove the condition (New Condition No. 26) that prevents the exclusion of persons under the age of 21 years by way of the proposed changes to Condition No. 10 that will state the "operation of a bar is permitted." Staff, innocently, has gone to great lengths in a subjective evaluation of the word or term "restaurant/brewpub" in an attempt to loosely define the word or term in a manner that creates an undisputable reason why the Newport Brewery may already be authorized to operate as a "bar ". The creation by Staff and the operator of a magic potion that allows the loose connection of food and alcohol service characteristics in combination as pre - authorization or authorization of a "bar" is faulty and wrong. An examination of Staff's methodology leads one to understand the conclusion is 9.3 V illogical and speculative, at best. Staff's conclusion does not hold water and will cause irreparable harm to the neighborhood. Do not be misled! The definition of the term " restaurant/brewpub" is paramount in the operator's plan to defend its bar, night club operation and the operator's ability to continue and /or expand its operation without criticism or control from the residents or the city. As policy makers, you need to intervene. There is not an available definition for the word " restaurant/brewpub." In order to attempt to define the term it is necessary to travel down the following two roads. Conduct an analysis of the term using recognized principals within the English language and/or an evaluation of the spirit and intent of the document that houses the term. Recognized principals of the English language would allow one to identify characteristics of the word or term "restaurant/brewpub" by splitting the term into dominant and serviant characteristics. The word "restaurant ", since it is placed first in the word or term, is classified as dominant. The slash mark (/) creates a relationship between the two words, however the word "brewpub" would be classified as serviant. The serviant word will always carry less weight. An examination of the separated words in the word or term may be helpful. It would be acceptable to split the term or word and look for separate definitions to look for assistance. The following are the most specific definitions: restaurant an establishment where meals are served to customers brewpub a combination brewery and restaurant; beer is brewed for consumption on the premises and served along with food It is also noteworthy how the definitions supplied by Dictionary.com and WordNet also use the principal of dominant and serviant relationships. There are additional definitions of the words brew pub, however, since they are separated into two words they are far less pure. In this circumstance, the word or term " restaurant/brewpub" would best describe a restaurant that primarily serves meals (dominant) to customers accompanied by premise brewed beverages (serviant). Next, one would wish to examine the spirit and intent of the document that houses the word or term. This document would be the "Findings and Conditions for Approval Use Permit No. 3485 (Amended)" of September 13, 1999. It is clear that the spirit and intent of the document was to approve a restaurant and would characterize "restaurant /brewpub" in consistent terms with the writer's definition. It is strongly described in Conditions No's. 9 & 10. From the document, Condition No. "9. The operation of the brewery operation and the service of alcoholic beverages shall be ancillary to the primary food service operation" and 10. "shall not be construed as the approval of a bar, cocktail lounge, or other use serving alcoholic beverages during hours not corresponding to regular meal service hours." It is also important to further examine the spirit and intent throughout the rest of the document. How does the language in the balance of the document help us understand the spirit and intent of the document? By way of example: The FINDINGS No. 2 reads "permits eating and drinking establishments." Eating first, drinking second. Cf. `/ "3 3 7 FINDINGS No. 5, bullet point 3, characterize the operation as a "restaurant business." FINDINGS b., bullet point 3, refers to the "alcohol license for a brewpub and the convenience of the public can be served by the sale of distilled spirits in a restaurant/brewpub setting." Here, a more complex term and more descriptive than brewpub. The addition of the "hard" alcohol was to augment the restaurant operation. Condition No. 15 uses the term "restaurant site" to describe the establishment. Condition No.16 uses the term "restaurant facility." Condition No. 17 reveals "restaurant business" as a reference. A more neutral term would have been used throughout the document such as "The establishment" which can be seen in Condition F. of the Standard City Requirements if the spirit and intent were actually to be more neutral. However, the neutral terms are virtually absent in the document. This is important to understand the spirit and intent. The specific wording and the terms present and not present in the document create overwhelming evidence to support a conclusion that the spirit and intent of the document clearly describe dealings with a restaurant. It would not be sound to derive a conflicting conclusion regarding the spirit and intent of the document. Both methods of evaluation demonstrate faulty conclusions by the Planning Commission and Staff. Perhaps Staff could demonstrate by way of several other existing Newport Beach Use Permits that this language and interpretation is reg=ular and common Staff can not demonstrate this point because the evidence does not exist! Therefore, Staff's interpretation that the term "restaurant/brewpub" implies that the City of Newport Beach approved a kind of a "bar" is nothing more than illogical speculation that defies acceptable principals within the English language and the spirit and intent of the document. In this circumstance, and most often, the words really do speak for themselves and do not require speculative interpretation. So let's look at how the Staff Report and the operator are misleading. Condition No. 9, as currently written, is clear and concise. It means that the establishment is a restaurant and shall maintain characteristics easily Identifiable as a restaurant. Condition No. 10 states "The approval of this use permit is for a restaurant/brewpub and shall not be construed as the approval of a bar, cocktail lounge, or other use serving alcoholic beverages during hours not corresponding to regular meal service hours (food products sold or served Incidentally to the sale or service of alcoholic beverages shall not be deemed as constituting regular meal service) nor as the approval of a cabaret, nightclub, or other use with the principal purpose of providing live entertainment and /or dancing." The proposed changes to Condition No. 10 is a further license for a "bar" by way of the proposed wording changes; "The accessory operation of a bar is permitted..." This change is catastrophic and can not be permitted. A recent adjustment, by the operator, now makes a full kitchen open and dinner menu available until 1 AM on Friday and Saturday. The notion that keeping the restaurant's kitchen open and making food available until 1 AM transforms the "bar" into a "restaurant" which suddenly meets the Staff's ill fated interpretation of the standard of Condition No. 10 is utterly ridiculous. The food service after 10 PM is clearly incidental. The incidental food service is in violation of the Use Permit. Keeping the kitchen open is a thinly veiled feature that fools no one and does not meet the criteria of the written words or the spirit and intent of Condition No. 10. In fact, it is insulting to any reasonable mind. 9.5 2q0 This logic is as sound as an imposed operational condition that a swim school offer swim lessons to fish! The lessons may be available but there would be no demand. The swim lessons to fish would be classified as incidental to the swim school! One could try to read into the condition that the only difference between a "bar" and a "restaurant" is the availability of food service. Regular meal service hours are not defined by the availability of food. This interpretation is a "reach" by the operator and Staff to meet Condition No. 10. It is better described as a "climb" for the operator and Staff. Regular food service is more reasonably interpreted by "demand" or percentage ratio for food products and not by availability! if there is no demand, or minimal sales, the food service is incidental. No operator would keep an expensive kitchen open with a full staff to make available a complete dinner menu when there is little or no demand, unless it was necessary to meet the conditions, or an interpretation thereof, of a Use Permit to stay open and be a "bar" while selling very profitable alcoholic beverages. Offering a dinner menu, while selling 90% alcohol, does not meet a reasonable standard of a restaurant. It is better described as a bar. It is also important to note that the words in Condition No. 10 "(food products sold or served incidentally to the sale or service of alcoholic beverages shall not be deemed as constituting regular meal service)" are specifically designed to require the necessity of "demand" for food service byway of sales to maintain and distinguish the restaurant characteristic and to prevent the phony ploy of keeping the kitchen open by "availability" of food service to circumvent the characterization of a "bar, night club." This is exactly what the Newport Beach, give an inch take a mile, Brewing Company has been doing and continues to avoid the wording and the spirit and intent of the Use Permit and thumb its nose at the neighborhood and the City of Newport Beach. It is in violation of the Use Permit, insulting to the neighborhood and the City Council must correct the violation and restore even handed compliance, promptly. The words in Condition No. 10 that are in parenthesis () are designed for clarification. They are in Condition No. 10 to prevent abuse. An available kitchen service does not create or satisfy the conditioned need for demand. There is no demand for food after 10 PM. There is no demand for food because after 10 PM is not "regular meal service hours". Everyone has already had dinner! Plain and simple. The food service is incidental. It is clear that after 10 PM the Newport Beach Brewing Company is a full blown bar, night club! The establishment has admitted they sell 90% alcohol after 1OPM. They admittedly, have 5 "bouncers", check I.D. at the door and do not allow patrons that are under age 21. Are these facts characteristic of a restaurant or a bar? The standard should be: Does the establishment operate as a bar, night club or a restaurant? Period. If they operate as a "restaurant" they are within the Use Permit. If the operate as a "bar" they are not within their Use Permit. The establishment can not be convertible and choose to be one or the other, at will, depending upon opportunity. The establishment can not connect the two separate operations by simply making food available. If you were starting with a clean sheet of Paper today. would You permit a "bar" operation at this location? The answer is clearly. NO! So why give license to the bar through ambiguity? The inventive exercise of a cloudy 'word blending" beginning with a "restaurant" mixed into a "restauranVbrewpub" and "poof" turning into a "bar" is trickery. It is not what the operator represented in 1999, nor, what the City Council authorized, nor what the neighborhood should endure. Don't be fooled! Could anyone even imagine that the City Council in 1999 may have intended to convey; Well, as long as the kitchen is open with a full menu you can do whatever You want until 1 AM. Sounds good to us. Let's vote. It is unimaginable. Staff knows better and so does this Council! 3N! Condition No. 9 need not and must not be changed. Condition No. 10 should be clarified and tightened to represent the spirit and intent of the Use Permit. The Newport Brewery should not be permitted, or in the least, appear to be permitted to operate as a "bar." Give an inch take a mile. The Cannery Village is a unique opportunity to foster mixed use characteristics in a seaside atmosphere. It is a very small area with a bright future! The Newport Brewery represents the past. Its business plan of over serving alcohol to kids may have been cool in the 70's. Yelling and screaming while urinating in the parking lot is a hobby that long ago had its day! To "rev up" this dinosaur will be a huge step backwards! The Newport Beach Brewing Company asked the City Council to be a restaurant that serves alcohol. They should be nothing more! So how do we accomplish this goal? Staff and the operator have offered very little in the way of solutions to the nuisance in the parking lot and the overall bar like characteristics. Counsel for the operator routinely threatens to sue if asked to yield on the tough questions. They refuse to curtail hours by closing at 11 PM like other restaurants and refuse to operate this business in a reasonable restaurant type setting. The character of the restaurant/brewpub is one of "Jeckel and Hyde." By day, for the most part, the operation has characteristics of a restaurant. On Thursday, Friday and Saturday nights and Sunday the operation is obviously a "bar." The Newport Brewery has Intentionally painted itself into an operation that appears to be a moving target that can not be easily regulated. However, the distinction that is easy to understand is that at a "restaurant ", patrons are primarily seated and at a "bar," patrons are primarily standing. The operation has previously submitted a floor plan. The facility also has limited restroom facilities that are a contributing factor to the constant urination in the parking lot and surrounding structures. By limiting the occupancy and requiring the Fire Department to enforce the patron load, the City could bring about a change in character and move this "bar" towards a "restaurant" In the alternative or conjunctively, the City could require food service at a 50% ratio to alcohol sales from 10 PM to 1 AM. These concepts would be easy to regulate and the necessity for expensive enforcement measures and complicated conditions, that can never be enforced, would be eliminated. As a matter of fact, per the directives of the California Coastal Commission and the Alcoholic Beverage Control, this is precisely how the operation is regulated during the daytime. Just last month , and after the Newport Brewery hearing, the Planning Commission imposed, and the applicant agreed, to a condition that the "Yard house ", an establishment that plans to operate in Fashion Island, be held to a percentage ratio of alcohol to food sales each and every hour of the operation. The same condition can be, and should be, imposed on the Newport Brewery. By limiting the alcohol sales as a percentage of the food sales and /or patron load it may be possible to actually dine in the " restaurant/brewpub" after dark. The practical solutions are available and before you. Have the courage to demonstrate the leadership that the voting population of the City of Newport Beach believes you have! Sincerely, Bruce J. Low 9.7 7�1 Z � BLANK • 9:g Attachment No. 10 Relevant legal standards and conditions of Use Permit No. 3485 at issue /U. / � BLANK /0.2 RELEVANT LEGAL STANDARDS The grounds for the modification or revocation of a use permit are established by Condition K of Use Permit No. 3485 and by Section 20.89.060.0 and Section 20.96.040 of the Municipal Code. Use Permit 3485 Condition K provides: K. The Planning Commission may add to or modify conditions of approval to this use permit upon a determination that this use permit causes injury, or is detrimental to the health, safety, peace, morals, comfort, or general welfare of the community. Section 20.89.060(C) provides that the Planning Commission, or the Planning Director, as the case may be, may revoke a use permit for an alcoholic beverage outlet 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. The establishment for which the permit was issued is being operated in an illegal or disorderly manner. 4. Noise from the establishment for which the permit was issued violates the Community Noise Control Ordinance (Chapter 10.26 of the Municipal Code). 5. The business or establishment for which the permit was issued has had or is having an adverse impact on the health, safety or welfare of the neighborhood or the general public. 6. There is a violation of or failure to maintain a valid ABC license. 7. The business or establishment fails to fully comply with all the rules, regulations and orders of the California State Department of Alcoholic Beverage Control. Decisions of the Planning Commission under Section 20.89.060 may be appealed to the City Council pursuant to Section 20.89.070. Section 20.96.040, entitled 'Revocation of Discretionary Permits" provides that a use permit is a discretionary permit. Under Section 20.96.040(E), the City Council is authorized 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. 10.3 I That there has been a discontinuance of the exercise or the entitlement granted by the permit for 180 consecutive days. Decisions of the Planning Commission under Section 20.96.040 may be appealed to the City Council pursuant to Section 20.96.040(H) and Chapter 20.95 (Appeals). CONDITIONS OF USE PERMIT NO. 3485 — COMPLIANCE QUESTIONED The Use Permit conditions that are relevant to this proceeding are as follows: 6. The net public area of the restaurant/brewpub, which is devoted to daytime use Monday through Friday (prior to 5:00 p.m.) shall be limited to 1,500 square feet. The balance of the net public area shall be physically closed off to the public by a fixed barrier and shall not be used until after 5:00 p.m. daily. 7. The hours of operation for the restaurant/brewpub shall be limited to the hours between 6:00 a.m. and 11:00 p.m. Sunday through Thursday and between 6:00 a.m. and 1:00 a.m. on Friday and Saturday. 9. The operation of the brewery and the service of alcoholic beverages shall be ancillary to the primary food service operation of the restaurant. 10. The approval of this use permit is for a restaurant/brewpub and shall not be construed as the approval of a bar, cocktail lounge, or other use serving alcoholic beverages during hours not corresponding to regular meal service hours (food products sold or served incidentally to the sale or service of alcoholic beverages shall not be deemed as constituting regular meal service) nor as the approval of a cabaret, nightclub, or other use with the principal purpose of providing live entertainment and/or dancing. 14. All mechanical equipment and trash areas shall be screened from surrounding public streets and alleys and adjoining properties. 17. A special events permit is required for any event or promotional activity outside the normal operational characteristics of this restaurant business 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. D. The applicant shall take reasonable steps to discourage and correct objectionable conditions that constitute a nuisance in parking areas, sidewalks, alleys and areas surrounding the alcoholic beverage outlet and adjacent properties must be taken during business hours if directly related to the patrons of the subject alcoholic beverage outlet. �o. y E. The exterior of the alcoholic beverage outlet 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. F. All owners, managers and employees serving and /or selling alcoholic beverages shall undergo and successfully complete a certified training program in responsible methods and skills for serving and selling alcoholic beverages. To qualify to meet the requirements of this section a 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. J. Coastal Commission approval shall be obtained prior to issuance of any building permits. K. The Planning Commission may add to or modify conditions of approval to this use permit upon a determination that this use permit causes injury, or is detrimental to the health, safety, peace, morals, comfort, or general welfare of the community. lo-5 � BLANK • ia.k Attachment No. 11 Background of Use Permit No. 3485 and summary of proceedings � BLANK • 1/1 Z BACKGROUND OF USE PERMIT NO. 3485 AND SUMMARY OF PRIOR PROCCEDINGS 1. In 1993, Use Permit No. 3485 was granted to operate a "restaurant/brewpub" with a Type 23 Alcoholic Beverage Control (ABC) license. A Type 23 license allows a small beer manufacturer (brewpub or micro - brewery) where a brewpub is typically a small brewery with a restaurant. The staff reports and minutes from the 1993 approval of the use permit are attached to the staff report. The following representations were made during that process: a) The use permit would establish a combination restaurant and brewpub with on- sale beer and wine with no live entertainment. b) The net public area was approximately 2,532 square feet including an approximate 600 square foot outdoor patio. c) The applicant requested and received operating hours of 6:00 AM to 12:00 PM Sunday through Thursday and 6:00 AM to 2:00 AM Friday and Saturday. d) The NBBC prepared and submitted a description of the operation calling the use a restaurant/brew -pub. The restaurant menu was highlighted and the bar area would provide "bountiful" seating with an "upper- class" feel. (See the project description attached to the Planning Commission report dated February 18, 1993). e) Mr. James Person, representing the applicant, indicated that the NBBC would be willing to close part of the restaurant during the day to avoid a conflict with public's use of the adjacent municipal parking lot. (See minutes of the Planning Commission dated February 18, 1993). f) Mr. Person testified to the City Council that the NBBC agreed to the conditions of approval imposed by both the City and the Coastal Commission. (See minutes of the City Council hearing dated September 28, 1993). 2. In 1999, an amendment of the Use Permit was granted allowing distilled spirits at the establishment with a Type 75 ABC license. A Type 75 license authorizes the sale of beer, wine and distilled sprits at a bona fide eating place plus the brewing of beer. The staff reports and minutes from the 1999 amendment of the use permit are attached to the staff report. The following representations were made during that process: a) The reason for Use Permit amendment was to remain competitive to attract a broadened customer base. They receive a lot of requests for cocktails and NBBC wants to be able to offer a greater variety of beverage choices to customers. "We have from day one attempted to be more of a restaurant than a bar." "We are not looking to implement drastic changes to our existing format." (See, 1999 Project Description and Justification). b) "We are not and do not have any desires to become a nightclub, dance club or the like." "We feel confident that the additional alcohol beverage service will help complement our expanded menu and keep the NBBC competitive." (See, 1999 Project Description and Justification). il.3 c) Patricia Temple, Planning Director indicated that the use was intended to be predominately that of a restaurant, certainly with alcohol as a feature and that the use had been operated as a restaurant. Assistant City Attorney Robin Clauson noted that the operation was conditioned to require the service of alcohol as ancillary to the restaurant and that there would be no approval of any type of bar or nightclub based upon the definition of a bar within the Zoning Code and proposed conditions. (See minutes of the Planning Commission meeting dated August 5, 1999). d) NBBC Operations Manager, Shawn Needelman, represented that NBBC is a restaurant that also brews its own beer and is looking for a way to improve service to respond to customer requests. Mr. Needelman also stated that NBBC wants to compliment the enhanced menu and capture a more diverse clientele by acquiring the Type 75 license. (See minutes of the Planning Commission meeting dated August 5, 1999). e) Reason for Use Permit amendment was due to declining sales for three year period. When first opened, NBBC did quite well with 50% of revenues, and an unknown percentage of profits, attributable to beer sales. (See, Supplemental Information for Agenda Item No. 17 dated September 13, 1999). f) To increase declining revenues, NBBC upgraded its menu to include items such as steaks and seafood. The full alcohol license would compliment the upgraded menu as well as allowing NBBC to satisfy the requests of all its customers. (See, Supplemental Information for Agenda Item No. 17 dated September 13, 1999). g) The amended use would not change the way the NBBC operates as a restaurant and a brewpub. NBBC suggested that the restaurant would be able to attract more of a dinner crowd Sunday through Thursday and maintain customers with the addition of cocktail service. (See, Supplemental Information for Agenda Item No. 17 dated September 13, 1999). h) NBBC acknowledged that their Use Permit requires that their business be primarily that of a restaurant and that their ABC license had a condition that requires at least 50% of their revenues be derived from non - alcohol sales. (See, Supplemental Information for Agenda Item No. 17 dated September 13, 1999). i) NBBC indicated that the restaurant had a seating capacity of 212 people and had 37 tables seating 144 people and 44 bar stools. (See, Supplemental Information for Agenda Item No. 17 dated September 13, 1999). j) NBBC Operations Manager, Shawn Needelman, represented that NBBC was not a bar that serves food but rather a restaurant that also brews its own beer. He went on to say that NBBC does not have the lines that they used to; they do not have late night parties; they do not have a DJ or any other form of live entertainment. He also represented that NBBC is an established restaurant that caters to 20 year olds, seniors, couples and families. Mr. Needelman also stated that he believed the decline in revenues to NBBC's inability to provide cocktails. (See, Minutes from September 13, 1999 City Council Meeting). �r- y k) NBBC President, Orazio "Raz" Salmone, noted that the brewery no longer has lines and that he would rather "build on the restaurant." (See, Minutes from the September 13, 1999 City Council Meeting). 3. In January 2006, the City received a letter from the Cannery Village Concerned outlining alleged violations of the Use Permit's conditions of approval and objectionable late night behavior by patrons that the surrounding neighbors believed to create a nuisance. This letter is attached to the May 4, 2006 Planning Commission staff report, which is an attachment to the August 17, 2007 Planning Commission report. a) Violation of Condition #6 — allegation that that the NBBC has a larger dining area than allowed before 5:00 PM daily. b) Violation of Condition #9 — allegation that alcohol service is not ancillary to food service. c) Violation of Condition #10 — allegation that the NBBC is a bar specifically prohibited. d) Violation of Condition #17 — allegation that operating a BBQ in the parking lot and the service of food and consumption of alcohol there from violates the need to obtain a special event permit. e) Violation of Condition D — allegation that the NBBC is a nuisance with patrons creating noise, carry on loud conversations or on occasion yelling, cause property damage, fight, vomit, urinate, defecate, and fornicate during the late evening and early morning hours, to the detriment of the neighborhood. The complaint also mentions poor maintenance of the trash enclosure and noise from the dumping of recycled materials after hours. f) Violation of Condition F — allegation that NBBC has failed to properly train servers responsible alcohol sales. 4. On May 4, 2006, the Planning Commission discussed the operation, took input from the neighborhood and directed an official review of the Use Permit. This staff report is attached to the August 17, 2007 Planning Commission report. At the May 4, 2006, meeting, the testimony was given to the Planning Commission: a) Jerry Kolbly, General Manager, NBBC represented that the establishment's emphasis was on being a restaurant. He also noted that the kitchen is opened during the hours of alcohol service with the late night menu (pizzas and appetizers) from 10:00 PM to closing. In addition, Mr. Kolbly noted that "service from 11:00 pm and 1 am is about 90% alcohol (55% liquor and 45% beer and wine) and 10% food. (See, Planning Commission Minutes dated May 4, 2006). Operation of the brewery and the service of alcoholic beverages shall be ancillary to the primary food service operation of the restaurant pursuant to Condition #9 and this testimony would support a finding of a violation. Condition #10 prohibits a bar and based upon these representations, staff believes that the limited menu after 10:00 PM and relationship between the sale of alcohol to food violated both Condition Nos. 9 and 10. 11.5 b) Jerry Kolbly also testified that his staff had received certified alcohol training in 1999, but due to staff turnover, the training had since lapsed. (See, Planning Commission Minutes dated August 17, 2006). No record of completion of a certified alcohol sales training course is in evidence as required pursuant to Condition F. Failure to properly train the owners and staff who serve alcohol in accordance with Condition F would constitute a violation of the condition. On September 6, 2006, the majority of NBBC staff successfully complete the State Department of Alcohol Control Board administered License Education on Alcohol and Drugs (L.E.A.D.) training program. If this course had been completed by all staff members, NBBC would have been in compliance with Condition F that requires training of owners, staff and employees on responsible alcohol sales. They may have previously been in violation of this condition, if there were employees serving and /or selling alcoholic beverages who had not undergone a certified training program. The NBBC has represented that all employees have since received the LEAD training and the NBBC is believed to be in compliance with Condition F. c) Bruce Low, a 29th Street resident, testified for a group of concerned citizens, noting that: i) They do not wish to close the Brewery; as it brings value to the neighborhood provided it is operated in accordance with the conditions of approval. ii) There is a discrepancy between the Use Permit conditions and the condition of the Coastal Development Permit related to the size of the dining room on the weekends. iii) The Brewery turns into an obtrusive bar operation after 10:30 PM and they have bouncers, what restaurant has bouncers? iv) The operators have made strides but the more serious problems still remain nuisances to the neighborhood as outlined in the January 2006 correspondence remain. d) Joe Reese, 30th Street resident, testified that patrons have to show their identification to get into the establishment. It is not a restaurant, not with bouncers and serving only appetizers after 10:00 p.m. This operation between 10:00 PM and 1:00 AM is nothing more than a bar. This area is out of control and he is disturbed by the noise in the early mornings. e) Drew Wetherhault, 30th Street resident, testified that he supported the prior speakers and he stated that the restaurants and bars need to comply with their use permits. f) Carrie Stade, 29th Street resident, testified she has been awakened with noise and victimized by patrons. g) Stephanie Rosanelli, resident of Cannery Village, noted the noise at night and that she can not leave her windows open. She too has had her home vandalized by tagging. //. 6 h) Christine Andros, 30th Street resident testified the challenges are the noise and patron activities (nuisances) in the parking lot. This establishment operates as a bar. She has spoken to the bar operator on several occasions to inform him of disturbances in his parking lot. i) Tony Shepherdson, 31st Street resident, testified his agreement with previous speakers and stated any help would be welcomed. j) Kevin Weeda, the owner of a business located in the area, testified his agreement with the previous speakers and asked that this item be brought back for formal review. 5. On August 17, 2006, the Planning Commission conducted a noticed public hearing where additional testimony was heard and a future hearing was set to consider the possible revocation of the Use Permit. At the August 17, 2006 meeting, the following matters were considered by the Planning Commission: a) A Code and Water Quality Enforcement Officer conducted a site visit on February 10, 2006. It was a Friday night, and the officer noted that there was in fact a line to get into NBBC and the officer noted that some individuals were screaming at each other and a high noise level was being emitted from the premises. This would constitute a violation of the nuisance provision in Condition D. (See, Planning Commission Minutes dated August 17, 2006). b) At the Planning Commission Meeting, Mr. Kolbly, the General Manager of NBBC, acknowledged that the line to get into the establishment could reach up to thirty people. Additionally, John Dale, a patron of NBBC noted that the establishment "does a great job with security at the door." (See, Planning Commission Minutes dated August 17, 2006). Maintaining a "bouncer" at the door underscores that NBBC may be operating a bar in the late night hours. Typically, restaurants do not have lines of this magnitude to enter nor do they check identification at the door. Operating as a bar would violate Condition #10. c) At the Planning Commission meeting, Jill Markowitz, owner of a property near NBBC contended that individuals were urinating in public (she did not specify that the individuals came directly from NBBC). She also complained that, in general, there were loud noises coming from the establishment and the parking lot. (See, Planning Commission Minutes dated August 17, 2006). The noises /disturbances would be in violation of the nuisance provision in Condition D. d) Billy Steed testified that the establishment is nice until after 9:00 p.m. when it can get out of control. Noise, public urination and fights coming out of the bar disturb the peace. (See, Planning Commission Minutes dated August 17, 2006). The noises /disturbances would be in violation of the nuisance provision in Condition D. e) Joe Reese testified at the meeting that he had visited NBBC after 9:00 PM on August 5, 2005 to see how the NBBC operated. He testified that the security guard at the door said that after 9:00 PM the restaurant becomes a bar and that no one under 21 is allowed in or they would lose their liquor license. The restaurant had patrons standing and loud music was playing. We sat at a table and asked the waiter for food who told us the kitchen was closed and the only thing to order was drinks. There were no chips, pretzels or popcorn being served. There were three security guards inside the restaurant and another one was outside. It was obvious that this was acting as a bar, not a restaurant. Conversely, there was testimony given by Zach Stevens, a NBBC employee, on duty that night noting that waiters are told to push food even past 11:00 PM to increase sales and that the kitchen was open as evidenced by the sale of a % chicken salad at midnight. (See, Planning Commission Minutes dated August 17, 2006). Closing the kitchen thereby eliminating food sales with the continued sales of alcohol would constitute a violation of Condition #9 as the sale of alcohol would exceed that of food and a violation of Condition #10 by operating a prohibited bar. f) Robby Hogan, a manager in charge of the kitchen at the establishment, testified that he was on duty the night of August 5th and the kitchen was open and is always open until the establishment closes (See, Planning Commission Minutes dated August 17, 2006). g) Roberta Aley, resident, testified that she frequents the brewery and that she always has been able to get food after 12:00 AM and that she has not seen any of these problems after 12:00 AM when she has been there that have been portrayed by previous speakers. (See, Planning Commission Minutes dated August 17, 2006). 6. On January 4, 2007, the Planning Commission held a noticed public hearing where the Commission acted to amend the conditions of approval. The January 4, 2007 Planning Commission report is attached separately. a) Jerry Kolbly, General Manager of the Newport Beach Brewing Company, testified that the queue line location change has worked well. Instituting the full menu in the late evening and early morning has been advantageous from a business perspective. The LEAD training program has been a valuable experience they have undertaken. Every brewpub cards after 10:00 p.m. in order to protect their licenses and other restaurants do the same. The Brewing Company maintains a higher percentage of food sales than alcohol sales and have since day one. b) Drew Wetherhault, a local resident, testified that there is a parking problem before 5 p.m. on the weekends. He also indicated his belief that the establishment operates as a bar after 9 p.m. due to high alcohol sales. He noted his desire to see a reduction in the hours of operation on Friday and Saturday having them shut down at 11 p.m. like other restaurants to address nuisances. He also noted that the neighborhood is impacted by after hours activities in the parking lots south of the Brewery and not all of them are attributable to the Brewing Company's patrons. c) Joe Reese, local resident, testified that it is his belief that there is no doubt that the use was intended to be a restaurant and not a bar as alcohol was conditioned to be ancillary to food service. The Brewing Company has security guards at the // -Y doors and bouncers inside, it is a bar atmosphere. Every weekend he is awakened by people leaving the drinking establishments. d) Billy Staid, local resident, testified that in spite of the recent operational changes instituted by the Brewing Company, there are still problems with the operation principally with patron activity in the parking lot. He asked if the entrance could be moved to the Newport Boulevard side of the building during the week after 9 p.m. e) Stephanie Rosanelli, local resident, testified that noise is a problem and suggested that a restaurant would be a better business value. 7. On January 12, 2007, an appeal was filed by The Cannery Village Concerned. 8. On March 27, 2007, the City Council considered the appeal; however, the hearing was not noticed properly. The following is a summary of the testimony heard. a) Bruce Low, local resident and representative of The Cannery Village Concerned, testified to his belief that the NBBC was violating Conditions #9 and #10 as evidenced by the high alcohol sales admitted by the NBBC. He also testified to his belief that the Condition #6 was not properly modified in September of 1993 to be consistent with Coastal Commission conditions. b) Kevin Weeda, a resident and business owner operating a business on 30th Street, said the group of concerned residents did not want to drive away the business, merely have the applicant comply with the use permit. Most problems occur late at night and he believed the business should be limited to an 11:00 p.m. closing. c) Jerry Kolbly, co- owner, Newport Beach Brewing Company, spoke about his establishment and the fact that it had maintained the same social atmosphere for the past 12 years. He has attempted to work with adjacent neighbors and staff to resolve the issues. There is a security guard stationed at the rear door and patrons enter and exit via Newport Boulevard only on Friday and Saturday nights after 10:00 PM as a way to address resident concerns. He testified that the quarterly sales of food are 52% and 48% alcohol. He indicated that in the past, the kitchen was closed and that he has now opened the kitchen during all hours to boost food sales. He also testified that there has been no significant operational change in the business since it first opened. Mr. Kolbly confirmed his earlier statements to the Planning Commission that nearly 90% of sales past 11:00 PM are alcohol; however, it was a guess and it may be approximately 80 %; clearly more than food. d) Billy Steed, Cannery Loft owner, adjacent to the Brewery, said he has observed all types of nuisances in the Brewery parking lot and his belief that the NBBC has offered no solutions and it ignores complaints. e) Stephanie Roselli, Cannery Village resident, testified to the NBBC's parking lot being noisy. j/.9 f) Joe Reese testified that he believed the intent of the 1993 and 1999 use permit approvals were clear in that this establishment was to be a restaurant and not a bar. He was personally carded and denied food after 10:00 PM one evening in 2006 and he has observed individuals standing around drinking after 10:00 PM with no food service. He expressed his belief that this indicates that the NBBC is a bar and not a restaurant in violation of conditions. He asked for enforcement of the use permit. g) Kristen Andros testified that it is her belief that the use operates as a restaurant until 11:00 p.m. and thereafter it operates as a bar as evidenced by a queuing line and carding. 1!_[6 Attachment No. 12 nal materials submitted to the Planning Commission & City Council for consideration 12.1 � BLANK • /2.2 MmEs e LAW GROUP A PROFESSIONAL CORPORATION 9911 IRVINE CENTER DRIVE, SUITE 150 IRVINE, CALIFORNIA 92618 (949) 788 -1425 FAX: (949) 788 -1991 SMII RS @MIc�RSLAWCROUP.COM LAND USE a ENVIRONMENT. ENTITI.ENIENT FOR INCL IISION IN TIIP ADMINISTRATI i'F1, RECORD OFPROCEEDING MEMORANDUM TO: CHAIRMAN COLE HONORABLE MEMF.RS OF THE PLANNING COMMISSION MR, JAMES CAMPBELL, ASSISTANT PLANNING DIRECTOR MR. AARON HARP, ASSISTANT CITY ATTORNEY FROM: STEPHEN M. MILES MILES • LAW GROUP, P.C. RE: NEWPORT BEACH BREWING COMPANY USE PERMIT AND OPERATIONS REVIEW DATE: JANUARY 4, 2007 0 I. INTRODUCTION AND SUMMARY For approximately eleven months, staff and the Newport Beach Planning Commission have been reviewing both the operations oftheNewporL Beach Brewing Company C NBBC ") and various permit conditions held by NBBC to operate a restaurant and brewpub. Two previous public hearings have been held by the Planning Commission, First, on May 4, 2006, the Planning Commission held an informational hearing on NBBC's Use Permit No. 3485 (the "Use Permit ") following certain complaints to the City of Newport Beach about NBBC. Next, on August 17, 2006, a review of the Use Permit was conducted and extensive testimony was heard about the concentration of bars in the area and various residential concerns with late night pedestrian activity in the area. . Chairman Cole January 4, 2007 Page 2 In addition to the Use hermit, NBBC holds Coastal Development Permit No. 5-93-137 ( "CDP Permit") and both 'a Type 23 and Type 75 Alcoholic Beverage Control license. The Type 75 license permits the sale ofwine, beer, and distilled spirits associated with the restaurant and brewpub. In 1999, the City Council amended the Use Permit to allow operation with a Type 75 license and specifically reduce the Restaurant and Brewpub hours of operation for Sunday through Thursday (reduced from 11:30 p.m. to 11:00 p.m.). The lion's share of the Use Permit conditions remained unaffected from the original approval by the City Council in 1993. The initial complaint and complainant that commenced the review ofthe Use Permit has received little review or scrutiny during these proceedings. Testimony from Officer Cosylion and Commissioner McDaniel indicates that a January complaint letter from "residents of Cannery Village" resulted in the February 2006 Code Enforcement investigation of 'NBBC. (See, 8/17 Minutes, pp. 23 -24.)J While the Code Enforcement investigation found no actionable violation of the Use Permit, voluntary measures have been undertaken by NBBC (including outreach to the residents of the Cannery Village), in an effort to improve their operations in a neighborly manner. NBBC is also pleased to note that they have reached consensus with City staff on a set of additional and modified conditions to the Use Permit after several months of hard work with staff NBBC reviewed proposed conditions, provided commentary to City staff, met with City Planning on several occasions, and also met with Mr. Low to confirm that he had no remaining complaints about NBBC's operations. That NBBC's voluntary efforts (1) addressed the concerns raised by "nearby residents, properly owners and local . business owners" (Staff Report, p. 1.) and (2) verified NBBC's compliance with Use Permit conditions, was ultimately confirmed by the November 3, 2006, Investigative Report conducted by the City of Newport Beach Police Department ( "Investigative Report "). A copy of the Investigative Report is attached hereto and incorporated herein by this reference. While NBBC will always remain cognizant of legitimate concerns lodged by its neighbors and. will continue to improve its operations in a successful manner, NBBC questions the veracity of the initial complaint lodged with the City that commenced these proceedings. While specific residents of the Cannery Village will certainly have legitimate concerns with noise emanating from the vicinity of the NBBC parking lot and the adjacent municipal parking lot, NBBC believes that the opposition led by the Cannery V illage Concerned was equally motivated by financial interests. Mr. Kevin Weeda and Mr. Bruce Low have held themselves out as the leaders of the ".`Cannery Village Concerned" — and allegedly represent upwards of fifty Cannery Village residents. To date, no evidence has been provided to this Commission that verifies the existence of a bona fide association or the actual residents that Mssrs. Weeda and Low actually represent. Mr. Weeda, who has testified on several occasions about the NBBC Use Permit, has a distinct pecuniary interest in seeing NBBC's operations fail. On several occasions over the past two years, Mr. Weeda has approached the owners of the NBBC property (Fainbarg and Feuerstein) seeking to acquire the parcel. (See, Declaration of Mr. Irving Chase). Fainbarg and Feuerstein previously owned various properties in Cannery Village before selling them to Mr. Weeda. (Id.) Despite his persistent inquiries, the owners of the NBBC property have informed him that the NBBC parcel is subject to a long term lease and is not for sale. (Id.) i2.y Chairman Cole January 4, 2007 Page 3 II. VOLUNTARY ACTIONS TAKEN AND .IMPLEMENTED BY . THE NEWPORT BEACH BREWING COMPANY In light of the direction given by this Commission on August 17, 2006, and because NBBC takes great pride in being a part of the Newport Beach community, several voluuntary actions have been taken by NBBC to continue the improvement of its restaurant and brewpub operations. I. Line Relocation, In coordination with the City, NBBC has administered a new entrance from the front of the building that eliminates any queuing and loitering in the NBBC parking lot. As observed by the Investigative Report, the new entrance successfully eliminates noise that may otherwise be detected by the Cannery Village residents that purchase lofts directly adjacent to the NBBC parking lot. II. Security Plan and Security Guard Presence. Employment of up to 5 Security Guards with a primary function of controlling and patrolling the NBBC parking area until 30 minutes after closing. The specific duties currently undertaken by NBBC Security Guards will be memorialized in a Security Plan that will be presented to the City and the Police Department. Key elements of the NBBC Security Plan include: a. Noise abatement through notification of patrons. b. Implementation of L.EADs concepts — identification review to eliminate risk of underage drinking. c. Parking area enforcement of noise restrictions and nuisance activity; documentation of noise issues and nuisance activity from the municipal parking lot Fwd ancillary public areas (streets and alleys). d. Response to Cannery Village complaints and concerns and coordination with the Newport Beach Police Department. III. Bottle Recycling Program. NBBC has implemented a bottle recycling program that collects bottles inside the restaurant to eliminate noise. Also, the use of large, deliverable storage containers eliminates the "dumping" of glass and its associated noise. IV. Trash Dumpster Area. NBBC submitted architectural design plans to the City for an enclosed and covered trash dumpster area. The enclosure will be locked and secure. V. Alcohol Training. All NBBC owners, operators, and employees have successfully completed a State certified LEADS program and will require all future employees to complete the LEAD'S program. NBBC also remains active with the City of Newport Beach Police Department and attended the business program hosted last month that focused on the prevention of underage drinking. /Z.5 Chairman Cole January 4, 2007 Page 4 .III. MODIFICATION AND REVOCATION OF USE .PERMITS NBBC is confident that the Commission will recognize the voluntary efforts undertaken by NBBC and, taken in conjunction with the conclusions of the Investigative Report, will conclude that the draft Use Permit conditions proposed by City staff are well - reasoned and effective in addressing legitimate concerns raised during these proceedings. NBBC is in agreement with the draft Use Permit conditions finalized by City staff on December 26, 2006. However, NBBC's legal position remains that no present conditions exist that warrant modification or revocation of the Use Permit. Substantial evidence in the record and the City's evidentiary findings in adopting the Cannery Village Specific Plan indicate that NBBC's preexisting operations are consistent with the surrounding land uses and that no nuisance conditions exist. The investigative reports conducted by the City and under the City's direction confirm that no extraordinary incident or complaint is associated with NBBC and that it is operating with fewer incidences than other similarly- situated establishments. Moreover, the evidence presented by the City confirms that NBBC remains in substantial compliance with the Use Permit conditions. Furthermore, the majority of testimony presented on August 17, 2006, confirms that a heavy concentration of bars exist in the vicinity of the Restaurant and Brewpub. These establishments close later than NBBC and the patrons of these bars utilize the municipal parking lot within the Cannery Village. In an effort to rectify the issues emanating from the municipal parking lot, the NBBC Security Plan mandates that security personnel remain on the clock for 30 minutes beyond closing to monitor both the NBBC parking lot and adjacent municipal lot, alleys and sidewalks to address pedestrian activities that may be disruptive to the Cannery Village. (See, Declaration of JerryKolbly.) The Security Plan also allows NBBC to properly address impacts to the Restaurant and Brewpub and surrounding Cannery Village caused by the residents of the Cannery Village. (Id. [Attendees of Cannery Village party utilizing and littering NBBC's parking lot].) A. Goat Hill Tavern The seminal decision on revocation and modification of use permits is Goat Hill Tavern v.tity of Costa Mesa (1992) 6 Ca1.App.4th 1519. Like the case at hand, the Goat Full Tavern Decision involved complaints from residents abutting the parking lot of the bar about noise, trash, and drunken behavior during late hours of operation. (Id. at 1524.) In contrast to the evidence before the Planning Commission, however, the City. of Costa Mesa provided extensive evidence through a staff report that "summarized 19 reported police incidents occurring at the tavern between August 1990 and November 1990. They included incidents in the parking lot and complaints the tavern exceeded its capacity and its patrons were drunk in public." (Id. at 1524 -25.) Notwithstanding the large number of incidents over a four month period, the City of Costa Mesa's preliminary action of limiting the tavern's hours of operation was stayed by the trial court and ultimately the Court of Appeal affirmed the trial court's grant of a writ of mandate against the City. (Id. at 1523, 1532.) /2,(p v ZD / Chairman Cole January 4, 2007 Page 5 The Court of Appeal held that a use permit, once issued, becomes a fundamental vested right that cannot be impaired absent a showing of either a failure by the permittee to comply with the reasonable conditions of the permit or a compelling public necessity. (Id. at 1530.) "Once a use permit has been properly issued the power of a municipality to revoke it is limited. Of course, if.the permittee does nothing beyond obtaining the permit it maybe revoked. Where a permit has been properly obtained and in reliance thereon the permittee has incurred material expense, he acquires a vested properly right to the protection of which he is entitled." (Id.) Because the Use Permit is a fundamental vested right held by NBBC, an administrative decision that substantially affects that fundamental vested right is reviewed under the independent judgment standard. Different than the traditionally deferent standard of review for most land use decisions, "the trial court must exercise its independent judgment on the evidence and find an abuse of discretion if the findings are not supported by the weight of the evidence." (Goat Hill Tavern v. City of Costa Mesa (1992) 6 Cal,AppAth 1519, 1531, citing Strumsky v. San Diego County EmEloyees.Retirement Assn. (1974) 11 Cal.3d 28, 32; See Cal. Code Civ. Proc. § 1094.5, subd, (c).) The grant of the writ of mandate against the City of Costa Mesa was largely based on the type of evidence presented at hearing: 1) Several witnesses wrote or testified favorably to Goat Hill Tavern. 2) Police records showing the number of incidents reported at the tavern were less than at most other bars and coffee shops in the vicinity. 3) No showing to distinguish complaints about Goat Hill Tavern from other possible causes, including other bars and other pedestrians that frequented the area. While the City of Costa Mesa was unsuccessful in substantially modifying the tavern's use permit and unsuccessful in revoking the use permit, the evidence presented by the City of Costa Mesa is far more compelling that the evidence at hand. There, nineteen reported police incidents occurring at the tavern in a four month period was insufficient evidence to impair a vested right. Here, no police incidents are attributable to NBBC. (See, Investigative Report attached hereto.) Also, the evidence presented to the Planning Commission has the similar error in failing to distinguish complaints about NBBC from other possible causes like patrons of bars in the area that close after NBBC, other patrons that use the NBBC parking lot or municipal parking lot, or pedestrians passing through the parking lots in a mixed use community. Based on the holding and evidence presented in the Goat Hill Tavern Decision, the City has insufficient grounds to modify the conditions of the Use Permit. Nevertheless, NBBC has voluntarily conceded to several new conditions and condition modifications in an effort to improve its operations and for the betterment ofthe community. B. Condition No. 6 While no modification is being proposed to Condition No. 6, NBBC believes that the following analysis of Condition No. 6 is warranted, While NBBC has complied with Condition No. 6 without incident since its inception, the Planning Commission is now responding to a recent allegation that Condition No. 6 may be in 1-2.7 Chairman Cole January 4, 2007 Page 6 conflict with Special Condition No. 1 of the Coastal Development Permit. Condition No. 6 is not in conflict with Special Condition No. 1 or the recorded Deed Restriction that memorializes Special Condition No. 1. Since July 1993, Use Permit Condition No. 6 has stated that: "The net public area of the restaurpnt(brewpub, which is devoted to daytime use Monday through Friday (prior to 5:00 p.m.), shall be limited to 1,500 square feet. The balance of the net public area shall be physically closed off to the public by a fixed barrier and shall not be used until after 5:00 p.m. daily. " Condition No. 6 clearly states that the 1,500 square feet restriction applies Monday through Friday. In contrast, Coastal Development Permit No. 5 -93 -137 (granted on July 15, 1993) (the "CDP ") is more generalized, less specific, and does not specify which days the public area use restriction is applicable. Special Condition No. 1 provides instead that; "Prior to issuance of the Coastal Development Permit, the applicant shall execute and record a deed restriction, in a /form] and content acceptable to the Executive director, which shall provide that no more than 1,500 square feet of service area of the subject restauranUbrewpub shall he open before 5:00 p.m. The document shall run with the land, binding all successors and assigns, and shall be recorded free ofprior liens." A deed restriction parroting the CDP language was recorded on January 19, 1994 (Doc. #94- 0038769 dated January 19, 1994, as required by CDP Special Condition No. 1. Additionally, Special Condition No: 3 to the CDP expressly states that the City of Newport Beach shall submit a letter to the :Executive Director of the Coastal Commission that indicates the City's enforcement of Special Condition 1. Like the recording of the Deed Restriction, this prerequisite explains that: "Additionally, prior to issuance of the Coastal Development Permit, the applicant shall submit, for the review and approval of the Executive Direbtior, a letter from the City of Newport Beach indicating that the City agrees that the City's Code Enforcement will enforce the [public/service area restrictions described in [special] Condition 1." This is a highly personalized.Special Condition that exclusively relates to an express provision that the City's Code Enforcement will enforce the public service area restrictions. The Coastal Commission deferred enforcement of Special Condition No. 1 to the City of Newport Beach, further indicating that the City's Use Permit Condition No. 6 is controlling — especially when the issue is merely one of interpretation thirteen (13) years after the fact. The Coastal Commission acquiesced to the City's specific language regarding the service area restrictions upon their receipt on October 13, 1993, of the Special Condition No. 3 Letter from the City of Newport Beach. (See, Stanson v. San Diego Coast flegional Com. (1980) 101 Cal.App.3d 38, 50.) That letter. starts by saying: / Z. Y I. Chairman Cole January-4, 200'1 Page 7 "As requested in the special conditions forthe subject Coastal Permit Application, this letter is provided for the purpose of confirming the action of the City Council of the City of Newport Beach relative to its approval of Use Permit No. 3485 (Revised) ... In Summary, the City Council's action as it relates to the Coastal Commission's Special Conditions.. included the following: 1. The "net public area" of the restaurant brewpub, which is devoted to daytime use Monday through Friday (prior to 5:00 p.m.) shall be limited to 1,500 sq.ft. 'Che balance of the "net public area" shall be physically closed off to the public by a fixed barrier and shall not be used until after 5:00 p.m. daily." The letter continues by noting that the property shall pay for 29 in -lieu parking spaces in the Cannery Village Municipal Parking Lot on an annual basis for the nighttime operation (after 5:00 p.m.). In conclusion, the letter confirms that disclosed conditions have been established as conditions of Use Pennit No. 3485 and that the City will enforce said conditions in accordance with Chapter 20.80 of the Municipal Code. A full copy of the October 13, 1993 is attached hereto and incorporated by this reference. As a final note, because Mr. Low has claimed that "the Coastal Commission has indicated that the restriction applies daily," this Commission should be aware that the CDP also includes the following standard condition that governs the interpretation of Special Condition No. 1: "Interpretation. Any question of intent or interpretation of any condition will be resolved by the Executive Director or the Commission." Accordingly, it is not appropriate for a non -party to the CDP to propose a creative interpretation that results in a conflict and then suggest that the permittee must seek a CDP modification. Instead, if a question of interpretation of a CDP condition arises (i.e., over the past thirteen years), the Executive Director can resolve the question administratively. In light of the October 13, 1993, letter received by the Coastal Commission in compliance with Special Condition No. 3, it makes perfect sense that the Executive Director has not weighed in on this "issue" or otherwise sought to bring it to the attention of the Coastal Commission. p Condition No. 6 should not be modified to reflect a restriction on weekends. Condition No. 6 clearly applies the use area restriction to weekdays. Moreover, with the other. Use Permit modifications in place, Condition No. 6 is not a potential source of a community impact and hasn't been alleged as the source of a residential hnpact. Now that previous allegations have been addressed, Mr. Low has made the asserted that the 1,500 square feet restriction is a "huge problem." In 1993, the City clearly informed the Coastal Commission in writing that the 1,500 square feet restriction applies Monday through Friday and would be so enforced. Only the Executive Director has the present authority to interpret Special Condition No. 1. To the extent that such an interpretation is needed, it is unlikely that after 13 years the Executive Director would find Condition No. 6 inconsistent with Special Condition No. 1 and Special Condition No. 3. lZ.9 ATTACHMENT "1" J 1z.ev CITY OF NEWPORT REACH POLICE DEPARTMENT November 3, 2006 TO: Sgt. R. Valiercamp FROM: Detective D. Stark SUBJECT: INVESTIGATIVE REPORT - NEWPORT BEACH BREWING COMPANY Case Initiation: On 8/22/06, Assistant; City Attorney Aaron Harp asked NBPD to assist his office and the Planning Commission in regards to the Newport Beach Brewing Company (hereinafter referred to as NBBC). Mr. Harp identified nine different questions regarding the .NBBC abiding by their Conditional Use Permit (CUP) and asked The Police Department to investigate. Investigative Results: The Special Investigations Unit of the NBPD reviewed Patrol related calls from the CAD System and coordinated with Patrol Officers and shift supervisors to increase their awareness and the need for documentation of incidents that involve the NBBC. There have not been any Patrol related problems noted in the last two months. Most Patrol Officers commented that the NBBC is rarely a problem. Undercover detectives from Special Investigations visited the NBBC and conducted surveillances of the surrounding area on six separate occasions to help answer the following questions. 0 Questions I - 9: Question #1 dealt with the possibility of the NBBC being operated as a bar (rather than a restaurant) on specific days and at specific times, especially between 2200 hours and 0100 hours on Friday and Saturday Nights. The answer to this is very subjective and probably inconclusive. The NBBC did have on- duty security employees working. Security employees were present the entire time during each evening visit by Detectives (8- 31 -06, 9 -1 -06, 9 -2 -06, 9.3 -06, 9 -8-06) One security employee was monitoring the entrance and one or two others were circulating throughout the restaurant. On 918106, we had a Police Cadet who was 20 years old attempt to enter by herself after 2200 12.11 �I„ hours. When the door security employee learned she was under 21, he apologized and said, "We don't let anyone under 21 inside after 2200 hours unless you're with a parent or other adult." The staff kept the crowd /occupancy at a reasonable level. Even after waiting in line to enter (after 2300 hours on a Friday night), we found several tables available to sit at. They served their full menu (appetizers and entrees) until they closed at midnight. They did not have live entertainment, IN's or dancing. Question #2 inquired about the noise being generated by the restaurant. Investigating officers observed the entire exterior perimeter of the restaurant throughout the evening and night on five separate dates (Thursday, 8/31/06, Friday, 9/1/06, Saturday, 912/06, Sunday, 9/3/06, and Friday, 9/8/06). The only noise came from the patio area which bordered Newport Boulevard. The noise was from patrons talking (not from amplified music). The noise would be drowned out when multiple cars passed the location. The rear or bay side of the NBBC remained quiet and trouble free during the restaurant's hours of operation. The only door that remained open was the patio door which faced Newport Boulevard. All windows were kept closed and on one occasion (90106 at about 2200 hours), when a patron opened the window, the security staff immediately responded and closed the window. The rear (bay side) doors, when being used as the entrance/exit, were kept closed except during ingress/egress of patrons. Question #3 asked If the NBBC had the proper signs posted inside the establishment. The Occupancy was clearly displayed on a large sign above the rear door (facing the bay) reading "Occupancy 160." This number is consistent with the occupancy certificate in our ABC file. Additionally, there were several signs clearly posted on the interior, side and rear of the exterior, requesting quiet and respect for the neighbors. Question #4 dealt with the exterior of the NBBC ineluding the parking lot, sidewalk, alleys and surrounding areas. None of the detectives noticed any significant noise or disturbances attributable to the NBBC. During the late night hours, after the NBBC was closed, we noted several groups of people returning to their cars from the area of the intersection at Newport Boulevard apd 30th Street. These people would often have loud conversations, however, there was no loitering, drinking, public urination or other activities observed. The NBBC security staff' was observed outside, monitoring their portion of the parking lot during and after closing time with a flashlight. Considering the exterior signs, closed windows, movement of the entrance after hours and patrolling of the rear parking lot, I would say that the NBBC is making a concerted effort to reduce noise and related problems for their neighbors. Question #5 asked If the Brewery Employees had received the proper certifications. On 9/6/06, Alcohol .Beverage Control (ABC) Investigator D. Shaver gave LEAD Program training (Licensee Education on Alcohol and Drugs) to 17 NBBC employees. The LEAD /2./ Program is a voluntary prevention and education program for California retail alcohol sales licensees, their employees and applicants. The program length is 3 1/2 hours and the mission is to provide traiivng on alcohol responsibility and the law. Another training class was offered on October 4th and 2 more employees attended. The 3 remaining employees who have not attended this class have been taken off the schedule until they complete the training. Question #6 dealt with "Calls For Service." Since previous reports have been compiled prior to 8/10/06, this report will address calls after 8/10/06. Five calls for service were associated with the NBBC address from 8/10/06 to the present. One was a traffic stop by a Patrol Officer (unrelated to the NBBC). Another was a noise complaint by an anonymous caller which Patrol Officers cleared as unfounded. On 8/19/06 at about OOs8 hours, Jill Ivlarcowitz called to report a large group of people yelling and screaming in the parking lot. Patrol Officers were dispatched at 0124 hours and arrived a minute later: fhe Officers cleared after advising that the NBBC was shutting down. It is unknown if the disturbance was still occurring when officers arrived. On 9/12/06 at about 0337 hours, Bruce Low called in a noise disturbance regarding a grease recovery vehicle that was parked in the alley on the east side of the NBBC and actively pumping out grease. A .Patrol Officer responded at 0339 hours. I.spoke with the responding officer (Dugan) who explained that he arrived as the grease truck had finished pumping. The noise made by the truck when he was present was minimal. Officer Dugan remained for about 4 minutes until the truck left. I was also forwarded an email regarding this disturbance written by resident Bruce Low which included photos. On 9/16/06, an anonymous male cell phone caller reported being assaulted by NBBC security. Patrol Officers responded and no assault was substantiated. The units observed that the caller was intoxicated and he left the area. The Officers cleared the scene logging an assist. Question #7 asks about the line to enter the restaurant. On the days when investigators entered the NBBC before 2130 hours, the entrance was on the bay /parking lot side of the restaurant. Depending on the night, sometime around 2130 to 2200 hours, the entrance would be moved to the Newport Boulevard side of the rftarrant. Signs would be placed on the rear entrance doors telling patrons that the entrance was at the front of the building. They would also place a three foot tall folding sign on the ground in front of the rear entrance saying the same thing. Signs would also be affixed to the inside of the rear doors saying, "NOT AN EXIT." The N13BC would place line delineators along Newport Boulevard to organize and control patrons waiting in line. A restaurant security employee was at the front of the line monitoring the occupancy and checking ID's. Lines were observed on several occasions, usually after 2300 hours on Friday and Saturday nights. On a Friday night (9/8/06) at 2300 hours, I waited in line for about five minutes prior to entry. When I was let inside, there were still three unoccupied tables. /2./3 Question #8 asked if litter was present in the parking lot. Undercover detectives visited the NBBC six times and numerous parking lot and perimeter checks were conducted. No one observed any trash or other discarded items that would draw their attention. Question #9 addressed CUP condition #6, a provision that a portion of the restaurant remain closed prior to 3 p.m. (reduction in Net Public Area). Detectives also visited the NBBC during the lunch hour on Wednes a , 8/30/06 at about 11.30 hours. They noted that the area in the restaurant adjacent to the brew kettles was the only section open for the small lunch crowd. The other areas of the bar and restaurant were closed. On Sunday 10/08/06, Detectives visited the NB.BC, arriving at about 1230 hours. They noted that the restaurant was completely open with patrons occupying tables in all areas (no sections were closed of). When they arrived, they estimated that the restaurant was 701/o full and when they left at 1430 hours it was 90% full. The primary attraction that day was NFL Football. The rear, parking lot entrance doors remained closed when not being used for ingress/egress and no unreasonable noise was emanating from the establishment. /z. /y ATTACHMENT "2" 0 Autrl1-08 01:05pm From- Callfv la'Coastal +5020005004 7-250 F-7500 �P.002/002 I4riW1 ��� Ms. Ms Mog Vaughn California Coastal Commission OCT 13 9993 245 W..Broadway, SM. 380 P. 0. Brix 1450 CALIFORNIA Long Bead; CA 94802 COASTAL CDMmjsslON SOUTH COAST DISTRICT Subject: Coastal Pertnit Application No. 5 -93 -137; 2920 Newport .Boulevard Dear Ms Vaughn: As requested in the special conditions for the subject Coastal Permit Application, this letter is ,provided for the purpose of confirming the action of the City Council of the City of Nevaport,Beach relative to its approval of Use Permit No. 3485 (Revised). As indicated in the attached excerpt of the City Council minutes dated September 27,1993; The d Council aproved Vse Permit No. 3485 (Revised) with the findings and subject to the co tions'set forth in .the City Council staff report so dated September 27, 1993. In sumarry, the Elty. Council's actiog as it relates to the Constal Comn lssion's Special Conditions,. included the following; 1. The "net public area" of the iestaiirant/brewpub, wbieh is devoted to daytlme use Monday through Friday (prior to 5:00 p.m:) shall be limited to 1,500 sq.ft. The balance of the "not public area" shall be physically closed off. to the public by a fixed barrier and shall not be used until after 5 :00 p.m daily. 2. The property owner shaA pay for 29 i1t -lieu parking spaces in the Cannery Village Municipal Parking Lot on an annual basis for the nighttime operation (after 5:00 p.m.) of the restaurant /brewpub use as agreed upon by the Sales Agreement between the City and the property owner. Inasmuch as the above conditions have been established as conditions of Use Permit No. 3485, the City of Newport Beach will inforce. said provisions in accordance with the. YJse Permit Procedures set forth in Chapter 20.80.6£ the Municipal :Ctlde. It should be furthor noted that Rom No. 2 above, is In keeping with the City Council's. action rescinding its. previous action which allowed the applicant the daytime use of 14-lieu parking in the Cannery Village Municipal Parking Lot. We hope that this information will be sufciertt for your purposes, and should you have, any questions feel free to contact Mr. William Ward in our office, at 644.3240. cry truly your , J S D' 1I.M C i Director went$ ...planufny\bi{IN \ap79aAlbr a �a o � o • o J W Q+ 1' 2 3 3 5 6 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 STEPHEN M. MILES (State Bar No. 185596) MILES *LAW GROUP A Professional Corporation 9911 Irvine Center Drive, Suite 150 Irvine California 92618 Telephone: 949 788 -1425 Facsimile: ((949788 -1991 Attorneys for Permittee NEWPORT BEACH BREWING COMPANY, INC. CITY OF NEWPORT BEACH PLANNING COMMISSION PUBLIC HEARING REVIEW OF NEWPORT BEACH BREWING COMPANY OPERATIONS NEWPORT BEACH BREWING COMPANY CITY OF NEWPORT BEACH PLANNING COMMISSION Use Permit No. 3485 CDP No. 5 -93 -137 DECLARATION OF JERRY KOLBL Date: January 4, 2007 Time: 6:00 p.m. _ -1- DEC AR TION OF JERRY XOLBLY V /z./7 0 L7 0 3� ti � o m � o w 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Jerry Kolbly hereby declares: 1. I, JerryKolbly, am the General Manager ofthe Newport Beach Brewing Company. I have been employed by NBBC for 11 % years and have personal and first hand knowledge of every aspect of the Company's operations. 2. 1 have been present at the following public hearings before the Newport Beach Planning Commission:.May 4, 2006 and August 24, 2006. I have also attended several outreach meetings with City officials and the asserted leaders of the "Cannery Village Concerned ". In particular, I have met personally with Kevin Weeda, Joe Riess, Bruce Low, Billy Stade and Drew Wetherholt to share with the Cannery Village the agreeable and voluntary measures that NBBC is willing to implement and has subsequently implemented. 3. On one occasion, on August 2, 2006,1 met with the representatives of Cannery Village along with Mr. Jim Campbell, City of Newport Beach, and our attorney, Stephen M. Miles to discuss the operation modifications that NBBC desired to implement to address noise concerns raised by the Cannery Village. That particular meeting ended abruptly when Mr. Bruce Low began displaying behavior of frustration by cursing at the NBBC representatives and aggressively confronting our attorney. Other representatives of the Cannery Village Concerned apologized for Mr. L,ow's behavior and we continued to discuss the issues with the Cannery Village representatives. 4. Attached as Exhibit "A" to this Declaration is a real estate listing for Mr. Low's Cannery Village residence. Mr. Low originally purchased his residence fpm Mr. Kevin Weeda, a fellow member of the Cannery Village Concerned that has illustrated his financial interest in acquiring the NBBC property. The asking price for Mr. Low's residence ($3,295,000.00) does not appear to indicate any issue with the quiet enjoyment of his property. 5. Our next meeting with Mr. Low, on Thursday, November 30, 2006, was much more productive. This meeting followed the issuance of the Police Investigative Report dated -2- DECLARATION ERR Y 2 ./� I November 3, 2006, confirming the general absence of condition violations, absence of incidence, 2 and absence of any potential noise impacts caused by NBBC operations. 3 6. Following the Planning Commission hearing on August 17, 2006, as the general 4 manager for NBBC, I have overseen several actions taken in response to the direction of the 5 Planning Commission. I believe that these actions address all the concerns that were raise by 6 the public at the Planning Commission hearing. I feel that the actions taken address not only the 7 potential noise impacts that NBBC operations may have on its neighbors, but, as important, the 8 actions taken help address the impacts to the neighbors that are caused by the public generally. 9 7. Since September 1, 2006, NBBC has actively relocated the line that used to form 10 at the parking lot entrance to the front of the building. This action has eliminated any potential 11 noise, caused by NBBC patrons, that could be perceived by the Cannery Village Lofts. 12 8. On September 6, 2006, NBBC closed its operation to the public to enable every 13 employee and owner of NBBC to complete a certified alcohol service education course referred 14 to as "License Education on Alcohol and Drugs" ( "LEADs "). Every working employee and 3 v 15 owner of NBBC completed the LEADs class. The certifications received by NBBC are attached 0 16 hereto as Exhibit "B ". 17 9, On September 24, 2006, as part of NBBC's Security Plan, I prepared and 0 w 18 submitted to each resident of the Cannery Village Lofts, a letter specifying a phone number for ¢ 19 the residents to call, if and when they have any safety concerns or any concerns with the 20 operations of NBBC or the utilization of eitherNBBC's parking lot orthe municipal parking lot. 21 To date, NBBC has not received any phone calls from the Cannery Village regarding any 22 complaints or concerns. 23 10. On or about September 30, 2006, 1 received a copy of a letter addressed to the 24 Newport Beach Planning Commission from Ms. Judy Leeper. The letter consists of testimony 25 from a Cannery Village resident that, for 10 years, has lived adjacent to the NBBC parking lot 26 without complaint. Ms. Leeper notes that noise concerns have always been worked out with 27 NBBC and that the real problem is the public's use (as opposed to NBBC patron's use) of the 28 -3- DECLA JI-,RRY X2./9 -� I NBBC and municipal parking lot. A copy of the letter is attached, hereto, as Exhibit "C." The 2 letter confirms the willingness of NBBC to address any noise complaints and further shows that 3 any potential noise issues have been rectified by the modification of the NBBC entrance. 4 11. On Saturday, October 7,2006, 1 spoke with Bruce Low's wife. She indicated that 5 she had called NBBC at or around 12:30 a.m. Saturday morning and was not successful getting 6 through. Later that day, Bruce Low's wife apologized for making an issue and explained that 7 she was overly concerned because she was. home alone. 8 12. On October 13, 2006,1 submitted engineered plans for the redesign and enclosure 9 of the NBBC trash bin located between NBBC's parking lot and the municipal parking lot. 10 Upon approval of the plans, NBBC, in conjunction with ourlandlord, stands ready to implement 11 immediate construction of the new trash enclosure. 12 13. In response to potentially unreasonable noise caused by the disposal of recycled 0 13 glass bottles, NBBC modified its Bottle Recycling Program. Now the collection of glass is 14 conducted inside the Restaurant and Brewpub to eliminate any noise for the adjacent residences. 3 15 Furthermore, the bottles on collected in transportable containers that are readily loaded from the 16 front of the building -- thereby eliminating transfer and disposal noise. a o 17 14. For approximately fivemonths, fromAugust2006 through December2006, NBBC a 18 has videotaped and taken noise measurements of the NBBC parking lot and municipal parking 19 lot. The general findings from the taping and measurements are that, even when the NBBC lot 20 is full during hours of operation, the parking lot is quiet. On occasion, our Security Team has 21 observed loud and boisterous activity in the municipal parking lot after NBBC's hours of 22 operation. The source of the noise is from pedestrians arriving from other establishments after 23 NBBC has closed. In addition, on occasion (e.g., September 16, 2006, at 1:00 a.m.) bottles being 24 picked up from Abe Restaurant have resulted in a very loud crashing sound. 25 15. On January 2, 2007, I generated a quarterly sales report for NBBC. Upon request 26 from the City, NBBC will make the sales report available to the City for review and inspection. 27 For the final quarter of 2006, alcohol sales accounted for 47.60 percent of total NBBC sales. 28 -4- DECLARATION OLBL G and EXHIBIT "A" Eel �2,2Z >4 t e� t > 11Ip111iNi��i %! Ali Y.4 ! C t 4 w T I , Y.4 ! -Sl .2ov�21 Ale law mi-er Dr., Su-ite Ecj'ch :cojjfa'rilja 92660 949.646.3$00 " 40 : L9 13 - 100�11 Bil!ss All d It -Sl .2ov�21 Ale law mi-er Dr., Su-ite Ecj'ch :cojjfa'rilja 92660 949.646.3$00 " EXIBI`T" "B9 0 l2.2� I r ��4 *r�T grr+e +Ry,t Nom¢ I: 1 mtsrt� amd. #.pn ou i}!annw An+x axn ,ors . �6edvcu "�5�lrpog EengCun 6pg.A�1 _ dI ® �� "YJIIiC. AF' m'- "v:YflF ni7ni not %[RuIPLY:!(nt�+li1C' . �1CensCD.IIBpexttpttgp rliCHilrCl NiRG'h�Ug5 e 18n�5rivnr'IWuing PiWgram :. -s zDos / 2 Z(? 5b-�r I EXHIBIT 66C99 V /2.3� September 30, 2006 City of Newport Beach, Planning Comutission City Hall 3300 Newport Blvd. Newport Beach, CA 926633884 Re, Newport Beach .B,rewirtg Company Use permit No. 3485 Dear Commession Members, I am writing in support of the Newport Beach Brewing Company and to let you know that I am in favor of the Brewing Company's use permit to remain as is and to not be modified. I have lived in the Cannery Village for 10 years and our property is located across the street frOM the Brewery parking lot, and the Public parking lot. The Brewery has been a.good neighbor and. the manager has always hied to work with us whenever we have had, a, noise complaint. The Brewery was here long before the rest of us built and ptttchased qi :houses, Thar are apart of the neighborhood and Rankly we all chose to hove into the envkonment of the Cannery Village. It is an "urban" neighborhood and there is going to be noise. It would be the same environment if we chose to build our loft style homes in downtown LA or Manhattan. That was the draw for us. We chose the urban Loft style living as opposed to -a residential neighborhood. Since the most recent lofts have been built and moved into they of course have had to adjust to this environment, and once again I see the managment team trying to make their neighbors happy by moving the ent mwe to the Newport Blvd. door instead of the parking lot so that there Is less noise. I strongly feel that if the Brewery's use ,permit is modified or provoked nothing will have changed. The public parks in the both the Brewery lot and the public lot to make their rounds to the restaurants In the area. The noise comes from the parking lots and so I feel that nothing will change just because the Brewery is changed. V The Brewery is one of the restaurants that our family frequents and I would be sad to see it go. I am unable to attend the meeting on October 5th and so .1 wanted to voice my opinion in writing, kin rely,Lee er (Satb. Street Newport Beach, CA, 92663 949.922 -9593 cc: l�iewp�t 't•BertcirBrcrvir�-Camgany 1231 i STEPHEN M. MILES (State Bar No. 185596) MILES • LAW GROUP 2 A Professional Corporation 9911 Irvine Center Drive, Suite 150 3 Irvine, California 92618 Telephone: 949 788 -1425 4 Facsimile: (949)788 -1991 5 Attorneys for Permittee NEWPORT BEACH BREWING COMPANY, .INC. 6 7 CITY OF NEWPORT BEACH 8 PLANNING COMMISSION PUBLIC HEARING 9 REVIEW OF NEWPORT BEACH BREWING COMPANY OPERATIONS 10 11 NEWPORT BEACH BREWING COMPANY Use Permit No. 348 12 0 CDP No. 5 -93 -137 13 DECLARATION OF tBEACH 0 14 CITY OF NEWPORT BEACH IRVING M. CHASE g 15 PLANNING COMMISSION Date: January 4, 2007 ¢ o 16 Time: 6:00 p.m. S w 17 �� 18 19 20 21 22 23 24 25 26 27 28 -1- DECLARATION OF C1-I I Irving M. Chase hereby declares: i 2 3 1: I, Irving M. Chase, am the manager of S &A Properties, which manages the 4 property for Fainbarg and Feuerstein Properties — the owner of that property leased to the . 5 Newport Beach Brewing Company (the "Properly ") for the operation of their Restaurant and 6 Brewery. The Property is one of approximately 10 holdings owned and managed by S &A 7 Properties in Newport Beach, Perris, Costa Mesa, Campbell, Santa Clara, Tustin, and Camarillo. 8 The National holdings for S &A Properties are in California, Washington, Oregon, Nevada, 9 Arizona, Louisiana, Texas, and Florida. 10 2. Subsequent to the August 17, 2006, Planning Commission hearing concerning the I1 Newport Beach Brewing Company permits, management for the Newport Beach Brewing 12 Company ( "NBBC ") arranged a meeting with S &A Properties to discuss several tenant 13 improvements to be made by NBBC to address concerns raised by the Cannery Village and the c14 Planning Commission. 3 15 3. On or about August 24, 2006, I met with NBBC Management at the Property and, 0 16 together, we agreed to relocate the existing mailbox location for the Property to enable NBBC w w 17 0 to establish a new entry point to the Restaurant and Brewery from the front of thebuilding rather w 18 than from the parking lot. S &A Properties relocated the mailbox. Q 19 4. In addition, S &A Properties agreed to redesign the existing trash enclosure 20 between the Property's parking lot and the City's adjacent municipal lot. S &A Properties' 21 consulting architect designed the trash enclosure to include a roof and unproved security and 22 submitted the final design to NBBC on September 21, 2006. Construction of the trash enclosure 23 can be readily completed within one week of design approval by the City. 24 5. Fainbarg and Feuerstein owned various properties in Cannery Village and sold 25 them to Mr. Kevin Weeda, a developer active in Cannery Village. Recently, Mr. Weeda has 26 approached S &A Properties to voice his interest in the acquisition of the Property. On at least 27 three separate occasions between 2004 and 2006, Mr. Weeda approached me and offered to 28 -2- DECL F IRVING M. CHASE .. .. ___ _.. __ ...v .. ..... u w n t.�rnnllno 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1w UU4 purchase the Property. I in£omed Mr. Weeda on each occasion that the property is subject to a long term lease and that the Property is not for sale. 1 declare under penalty of perjury under the I the State of California that the foregoing is true and correct. Dated: 15., ,, eW 1roing M, Chase v i2.3y --77 1 z 0 F O p�p � o a V � o N �w � a 1 2' 3 4 5 6. 7 8 9 10 111 12 13 14 15 16 17 18 19 20 21 22� 23; 24 25 26 271 28 STEPHEN M. MILES (State Bar No. 185596) MILES !LAW GROUP A Professional Corporation 9911 Irvine Center Drive, Suite 150 Irvine, California 92618 Telephone: (949) 788 -1425 Facsimile: (949) 788 -1991 Attorneys for Permittee NEWPORT BEACH .BREWING COMPANY, INC. CITY OF NEWPORT BEACH PLANNING COMMISSION PUBLIC 1 -TEARING REVIEW OF NEWPORT BEACH BREWING COMPANY OPERATIONS NEWPORT BEACH BREWING COMPANY CITY OF NEWPORT BEACH PLANNING COMMISSION Use Permit No. 3485 CDP No. 5 -93 -137 DECLARATION OF ERIC BLAISDEL.L Date: January 4, 2007 Time: 6:00 p.m. _1. DECLARAXION 0 L L P /-2.1-35 1 2 31 4 5 b 7 8 9 IO II 12 13 14 15 16. 17 is t9 20 21 22 23 24 25 26 27 U a•d Eric Blaisedell hereby declares: 1. 1, Eric Blaisedell, am the head of Security for the Newport Beach Brewing Company. I have been employed by Newport Beach Brewing Company since May 2006. 2. On Saturday, October 7, 2006, I was working the evening security shift when I was approaohed by Mr. Bruce Low. Mr. Low conveyed to me that he felt that the noise concerns with the NBBC parking lot had been addressed with the relocation of the evening entry from the parking lot to the front of the Restaurant. 3. On Saturday evening, October 7, 2006, I observed that Mr. Billy Stade hosted a party at his Cannery Village .Loft located adjacent to the NBBC parking lot. Several of Mr. Stade's guests parked in the NBBC parking lot and municipal parking lot. Because of the noise caused by Mr. Stude's party and his guests, guests littering and loitering in the parking lots, and a guest that was observed exiting the loft and urinating on the front of the building, NBBC Security made several individuals leave the NBBC parking lot.. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Dated: January 4, 2007 r nc B aisedell v nPPg6;,cka6PT - ajoasNOOa inn clrn 7n In 6n UF.te iz.3� MILES • LAW GROUP A PROFESSIONAL CORPORATION LAND USE 9911 IRVINE CENTER DR1VE, SUITE 150 IRVINE, CALIFORNIA 92618 ENVIRONMENT (714) 393 -3389 ENTrrLEMENT FAX: (949) 788 -1991 SMILES@MILESLAW GROUP. COM January 9, 2007 VIA ELECTRONIC MAIL [JCampbe1l@ciry. newport- beach. ca. us] AND U.S. MAIL Mr. James Campbell, Senior Planner City of Newport Beach Planning Department 3300 Newport Boulevard Newport Beach, CA 92663 Re. Unfounded Complaint Lodged with the Newport Beach Police Department Dear Jim: Today you asked me to "find out what happened Saturday morning" and I've interviewed the appropriate individuals to answer your question. Apparently, Mr. Bruce Low has wasted no time in continuing his unfounded allegations against Newport Beach Brewing Company ( "NBBC ") by writing you a letter dated January 6, 2007, containing claims against both NBBC and the City. In his letter Mr. Low takes issue with NBBC's voluntary relocation of the evening line from the parking lot entrance to the front of the building and he alleges that Friday, January 5, 2007 (the day after the NBBC Use Permit hearing), "was worse... than it (sic) has been in almost a year." Mr. Low's ranting about the queue process is ridiculous. Of all people, Mr. Low should be aware of the line relocation process that NBBC has implemented since September 1, 2006. No complaints (reasonable or otherwise) have been issued by the Cannery Village residents regarding line noise or the so called "party" in the parking lot(s). In fact, the residents of the Cannery Village Lofts have overwhelmingly supported the line relocation — Mr. Low included. Mr. Low's most recent diatribe is simply bad faith. Fundamentally, Mr. Low did not raise any concern with the line relocation at the January 4, 2007 hearing and the City should not entertain his post hoc, unfounded allegations when Mr. Low chose not to raise such issues during the administrative proceeding. Mr. Low understands that his concerns are not legitimate and that they would have been readily addressed and summarily refuted in the public forum. His failure to properly voice concerns at the Planning Commission level should not be rewarded by allowing this matter to be heard by the City Council on appeal at no cost to Mr. Low. /2.37 Mr. James Campbell January 10, 2007 Page 2 of 3 Mr. Low is very much becoming the "little boy who cried wolf." The only distinction here is that, while a wolf may appear from time to time (without the wolf becoming a nuisance or a violation of Use Permit conditions), the wolf has taken a hiatus from the Cannery Village due to NBBC's ongoing efforts to eliminate noise. All that the City is now dealing with is Mr. Low's cries. At least now the City should realize that it is dealing with one or two outspoken individuals rather than any actual represented class of residents (e.g., no wolf in sheep's clothing here). Not only did Mr. Low fail to comment on January 4, 2007, but no individual came forward with any evidence of the 50 or 60 residents that were allegedly represented by Mr. Low. In fact, the hearing was conducted without a single reference to the "Cannery Village Concerned" - the nebulous association that started the false allegations against NBBC. With respect to the incident that a resident of the Cannery Village Lofts called in around 12:30 a.m. on Saturday, January 7, 2007, Mr. Eric Blaisdell, a NBBC Security personnel on duty the night of January 6 and morning of January 7, 2007, is prepared to submit a declaration, under penalty of perjury that: 1) Every 15 minutes during the late evening hours, the NBBC parking lot was walked and at 12:30 a.m., the NBBC parking lot was clear of all customers and three parking slots were empty; 2) At 12:45 a.m., the NBBC parking lot was empty of customers and six parking slots were empty; 3) On my way back to the back door following my 12:45 a.m. walk of the NBBC parking lot, I was met by two Newport Beach Police Officers that informed me that they were responding to a call from a resident behind the Brewing Company about a 10 person fight that was taking place in the parking lot, and; 4) The police officers reported the call as an unfounded complaint and cleared NBBC of the call. From my additional interviews with NBBC management and personnel this morning, I've confirmed that collectively, nothing was observed in the way of any persons fighting or yelling in either the NBBC parking lot or the municipal parking lot between Midnight and 1 a.m. on Saturday -- not 10 people, not 4 people, not 2 shirtless people. The residents of the Cannery Village Lofts continue to make false accusations and call in false reports to the Newport Beach Police Department without recourse. Part of this willingness is the misunderstanding on their part that any noise from NBBC's operation is automatically unreasonable noise. This is untrue - especially in a mixed use zone that was aptly described in Mr. Low's residential listing materials as the "oh so hip work/loft in the heart of what's happening in Newport Beach's stylish Cannery Village." Certain noise levels are permitted and will occur. Additionally, from time to time, patrons using either the NBBC parking lot or municipal parking lot may become boisterous in their activities. That is simply a facet of parking lots catering to patrons of restaurants, brewpubs, and bars that are open until 1 a.m. and 2 a.m. on weekends. While NBBC can and will take measures to assure that its operations remain in compliance with its Use Permit conditions, a reasonable number of incidences will occur outside the Brewing Company that may or may not be caused by its patrons. This is simply a realistic outcome of a permitted Restaurant /Brewpub that has been found on several occasions to be consistent with the after- the -fact construction of the Cannery Village Lofts. NBBC does not understand why Mr. Low and his fellow cohorts of the Cannery Village Lofts now feel that they can exaggerate facts and fabricate the truth. One reason that Mr. Low may feel /2.38 -2? Mr. James Campbell January 10, 2007 Page 3 of 3 empowered to submit groundless assertions is the ongoing willingness of the City to entertain groundless assertions. NBBC notes that at least one Planning Commissioner stated that NBBC should not be commended for the voluntary actions that they've implemented — at a time when the Newport Beach Police Department investigation verified no violations and no actionable problems. Also, Mr. Harp opined that findings could be made for revocation of the Use Permit to enable a substantial modification of the Use Permit conditions. Mr. Harp's example of evidence that would support the findings was a "violation" of the Use Permit prior to September 2006 when a "full menu" was not provided during all hours of operations. The example is grossly flawed. Currently, Condition 10 of the Use Permit does not require a "full menu" during all hours of operation. Instead, the requirements of Condition 10 are that food service cannot be merely incidental to alcohol sales and the approval of the Use Permit shall not be construed as the approval of a bar "serving alcoholic beverages during hours not corresponding to regular meal service hours." A full menu has nothing to do with Condition 10 as currently applicable to NBBC's operations. Nevertheless, NBBC has agreed to a modification to Condition 10 and currently provides a "full menu" during all hours of operations as another way to advance the primary food service of the Restaurant /Brewpub. As confirmed by Officer Frizzell's direct testimony supported by the Police Investigative Report, NBBC has not violated the conditions of its Use Permit and no such findings could possibly be made by the City. However, when staff continues to erroneously offer that findings of violation could be made, individuals like Mr. Low may remain inclined to assert unfounded claims in an effort to undermine NBBC's business operations and solid reputation within the community. Simply put, if you treat someone like a child, they will continue to act like a child. Thank you for your consideration on this matter. If you have any questions, please call me. Very truly yours, MILES LAW GROUP, P.C. 0 Stephen M. Miles cc: Mr. David Lepo, Director of Planning Mr. Craig Frizzell, Newport Beach Police Department Mr. Aaron Harp, Assistant City Attorney Mr. Jeffrey Cole, Chairman, Newport Beach Planning Commission Mr. Jerry Kolbly, General Manager, Newport Beach Brewing Company �2.3y Bruce I Low 411 29th Street Newport Beach, California 92663 January 6, 2007 The City of Newport Beach Planning Department 3300 Newport Boulevard Newport Beach, California 92663 Attn: Mr. David Lepo, Planning Director Re: Newport Beach Brewing Company (Use Permit No. 3485) Dear David, One day has passed since the Newport Brewing Company hearing at the Planning Commission. it appears the new provisions or modifications of the Use Permit are implemented. It was worse last night than it has been in almost a year. Quite frankly and unfortunately, you and your department have assisted in creating a complete failure to the Brewery and the neighborhood. With the creation of a condition that moves patrons to the front of the building to gain entrance only when a group forms in a "queue" requires that someone count the number of persons and make a determination of "back door" or "front door" on a constant basis. This is not practical as I evidenced last night. Who is directly responsible to make the count and move the door? How often does that person count the "queue "? What does that person do when the "queue" dissolves at the front door? Where do I place the security and when should I move them and who is responsible to see it Is done? Who moves the sign that tells patrons to enter from the "back door ", no, the "front door?" It is conceivable that the entrance and the security could be moved back and forth all night. It is not conceivable that this plan is efficient or helpful. How many patrons waiting to gain entrance does it take to make a disturbance? It is less than or greater than the number of patrons it takes to make a "Queue "? This is an ineffective and under considered solution. It does not work! It is a Chinese fire drill! When the back door is used as an entrance, it is also used as an exit. This allows groups of patrons to enter and exit the building and carry the party in and out of the parking lot. It is again and instantly, unbearable. The party in the parking lot is not acceptable! It is a nuisance! This morning, at 12:32 a.m. I was again awoken by screaming in the Newport Brewery parking lot. I opened my window and observed four young men, two without shirts on, in a shoving and screaming match that then ensued into a four person fight. I called the Newport Beach Police /2.yo �s Department and spoke to "Loren" at the front desk. She took the information and asked me W1 was willing to sign an "Affidavit "pertaining to the report.. 1. responded yes. The fight broke up at 12:37 a.m. Two of the „young men walked back into the Ney pprt Brewery and two left the parking lot in a dark colored Chevy truck. I waited until 12:45 a.m. to observe a police car. No police car showed up and I went backto bed. There were no securO, ,,_personnel in the parking lot from the Newport Brewery. This type of circumstance is the norm. The Planning Department, the Police Department, the Brewery management view the problems from the Newport Brewery in a vacuum. None of you or them have first hand knowledge of the abuses that - occur: daily. None of you are there at 12:30 a.m. You and your Staff, honorably, want to solve the problems_ of the Brewery by talking to the Brewery•_ management in negotiations. You ask the Police Department to give you objective Information; but their response time is not.effective to view the abuses. ByAhe way, how long does it take for an over served person to urinate on a vehicle's tire? How will the response time of the Pollce`Department be effective in intervention and citation? Do you believe.a resident should take a sample and send it to the lab for a DNA analysis (as suggested by the. Newport Beach Police Department) before one - agrees it occurred? Do I need a witness that this person consumed the beverage at the Newport, Brewery? The actions of the Planning Commission, through the recommendation of you and your Staff, is a huge step backwards for the neighborhood. Unfortunately; even if you wantto-, you still do not get it. We had hoped that you would have consulted the neighborhood to develop effective solutions to the Brewery problems. After.all, it was a neighbothood proposal to move the patrons to the front door in the first place'; ' The entry door restriction works much better and with less accountability, by simply assigning a time to change the entrypoint. 9p.m. worked for the neighborhood in the last few months and it would be_working now without the change. Thanks for asking, Davidl Since -you dggigaled, or at least bought in to the failure, without neighborhood consultation, would you mind explaining to the neighborhood how the loading ofpatrops to frdnkof back doors prompted by a "Queue” functions for the benefit of the neighborhood, what s ecific problems it cures and why you believe it is a good solution? Sincerely, Bruce J. Low /2�`1/ eT nTa OF CALIFORNIA - THR RESOURCES AfIENCY Arnold Schwnrzenuacr- iovernor CALIFORNIA COASTAL COMMISSION South Coast Area Office 200 Oceangate, Suite 1000 Long Beach, CA 90802.4302 RECEIVED BY (562) 590 -5071 PLANNING DE'w'All WNW May 9, 2007 Mr. James Campbell Planning Department City of Newport Beach 3300 Newport Blvd. P.O. Box 1768 Newport Beach, CA 92658 -8915 Re: Coastal Development Permit No. 5 -93 -137 (Doan) Newport Beach Brewing Company 2920 Newport Blvd., Newport Beach Dear Mr. Campbell: MAY 11 2007 CITY OF NEWPORT BEACH On July 15, 1993 the Coastal Commission approved the above referenced coastal development permit, subject to four special conditions. The coastal development permit was issued on August 10, 1993. A copy of the Coastal Commission staff report on the matter and the coastal development permit are enclosed with this letter. A question has arisen with regard to the Commission's intent in imposing Special Condition No. 1 which states: "Prior to issuance of the coastal development permit, the applicant shall execute and record a deed restriction, in a form and content acceptable to the Executive Director, which shall provide that no more than 1,500 square feet of service area of the subject restaurent/brewpub shall be open before 5 p.m. The document shall run with the land, binding all successors and assigns, and shall be recorded free of prior liens and encumbrances which the Executive Director determines to affect said interest." The question regarding this special condition is whether the limit on service area applies seven days a week or only Monday through Friday. The Commission's concern in requiring that adequate parking be provided with new development is that that new development with insufficient parking forces patrons of the new development to compete with beach -goers and other visitors to the coastal zone for the limited public parking spaces available. Thus, patrons of the new development, in using public parking spaces, decrease the total amount of parking spaces available to the general public. This then adversely impacts public access. l2.VZ Coastal Development Permit 5 -93 -137 Newport Beach Brewing Company Public demand for parking in the coastal zone is typically higher on weekends. This is especially true in the summer, but also throughout the year. As is reflected in the findings of the staff report and in the audio tape of the Commission hearing, the Commission's intent was that the restriction on service area of the restaurant be applied every day (i.e, seven days a week). It is important to note that the special condition does not call out a day to day limitation of the imposition of restricted area and states simply that: "no more than 1,500. square feet of the service area of the subject restaurant/brewpub shall be open before 5 p.m." If the intent had been to apply that restriction only Monday through Friday, that limitation would have had to been specified in the language of the special condition. I hope this adequately answers the question regarding the restrictions on daytime use of the Newport Beach Brewing Company's public service area required as a condition of approval for coastal development permit No. 5 -93 -137. Please do not hesitate to contact me at the above number with any questions regarding this matter. Sincerely, Meg Vaughn Staff Analyst CC: Bruce J. Low 5 -93 -137 NBB speccondl 5.10.07 my /Z�y3 MMES ® LAW GROUP A PROFESSIONAL CORPORATION o 107 -41 17 LAND USE 9911 IRVINE. CENTER DRIVE, SUITE 150 IRVINE, CALIFORNIA 92618 ENVIRONMENT (949) 788 -1425 ENTITLEMENT FAX: (949) 788 -1991 SMILES @M I LESLAwG ROUP. COM July 10, 2007 VIA PERSONAL DELIVERY Honorable Mayor Rosansky Members of the City of Newport Beach City Council City of Newport Beach 3300 Newport Boulevard Newport Beach, CA 92663 Re: Use Permit No. 3485 — Newport Beach Brewing Company July 10 2007, City Council Hearing Honorable Mayor Rosansky; I. NBBC OPERATES IN A REASONABLE AND LEGAL MANNER For 1 I years the Newport Beach Brewing Company has operated its Restaurant/Brewpub without an administrative citation by the City or violation resulting in a Code Enforcement action. Equally; the Brewing Company has not been cited for violation by ABC in accordance with either its Class 23 or Class 75 licence. Beginning in January of 2006, and culminating in 18 months of review, the Brewing Company has been tasked with addressing nuisance -based allegations from a few residents of the Cannery Village. Addressing any and all potential nuisance -like impacts to its neighbors, the Brewing Company has voluntarily implemented numerous operational changes focusing on Noise allegations that started this entire Use Pen-nit review process. NOISE CONCERNS IN PARKING LOT 0 ATTACHMENT ONE— LIST OF OPERATIONAL IMPROVEMENTS Honorable Mayor Rosansky July 10, 2007 Page 2 of 9 H. USE PERMIT NO. 3485 HAS NOT BEEN VIOLATED There are 10 distinct reasons why the Brewing Company is operating in full compliance with the plain meaning and intent of Conditions 9 & 10 of the Use Permit. Because of these 10 reasons, the academic argument that the Brewing Company becomes "a bar" after 11 p.m. on Friday and Saturday will not survive judicial scrutiny. 1) 13 years of operation without an official violation or citation from a State or local governmental entity. Specifically, over a 13 year period, the City has never issued an Administrative Citation for violation of Condition 9 or 10. 2) Use Permit contains no condition requiring an hourly accounting, ATTACHMENT TWO — CONDITIONS 6,9 & 10 3) Municipal Code contains no provision supporting such an accounting 4) City Code definition of 'ancillary' supports 13 years of Brewing Company operation and the definition contains no basis for an hourly accounting, "Use, ancillary" means a use that is clearly incidental to and customarily found in connection with the principal use; is subordinate to and serves the principal use; is subordinate in area, extent or purpose to the principal use served,- and contributes to the comfort convenience or necessity of the operation, employees or customers of the principal use served. (NBMC Section 20.03.030.) PRINCIPAL USE OF THE BREWING COMPANY: principal use of the Brewing Company is a Restaurant/Brewpub. Even during those late hours where alcohol may exceed food sales, by unit, beer outpaces cocktail sales '3 to 2 further indicating that the primary "Restaurant/Brewpub" use is satisfied. BREWING COMPANY AREA — overwhelming devoted to Restaurant and brewing facilities. BEER PROFIT MARGIN IS TWICE THE PROFIT MARGIN OF COCKTAILS 5) State law is controlling and municipalities are preempted from changing hours of operation based an hourly accounting of liquor sales Business & Professions Code § 23038. "Bona fide public eating place "; "Meals "; "Guests" Honorable Mayor Rosansky July 10, 2007 Page 3 of 9 "Bona fide public eating place" means a place which is regularly and in a bona fide manner used and kept open for the serving of meals to guests for compensation and which has suitable kitchen facilities connected therewith, containing conveniences for cooking an assortment of foods which may be required for ordinary meals ... . "Meals" mean the usual assortment of foods commonly ordered at various hours of the day; the service of such food and victuals only as sandwiches or salads shall not be deemed a compliance with this requirement. "Guests" shall mean persons who, during the hours when meals are regularly served therein, come to a bona fide public eating place for the purpose of obtaining, and actually order and obtain at such time, in good faith, a meal therein. Nothing in this section, however, shall be construed to require that any food be sold or purchased with any beverage. UNDERSTATE LAW, AVAILABILITY OF FOOD SERVICE, AND NOT HOURLY FOOD SALES IS THE PROPER STANDARD. IN FACT, STATE LAW PROHIBITS THE REQUIREMENT THAT ANY FOOD BE SOLD OR PURCHASED WITH ANY BEVERAGE. Id. 6) The City's past interpretation and enforcement of Use Permits with food, alcohol, AND entertainment confirm that food availability during late hours, and not sales, is the applicable standard, 7) Interpretation fails to account for the 'Brewpub' use permitted by Use Permit Conditions 9 & 10 8) Dictionary definitions of'bar' and'brewpub' confirm that a bar includes facets of alcohol and food sales and a'brewpub' includes facets of both a bar and restaurant (in addition to brewing onsite), "Bar" WEBSTER' Si definition of a "bar" includes "5 a : a counter at which food or especially alcoholic beverages are served" ENCARTA "place for drinking: a place where alcoholic drinks can be bought and drunk" "Brewpub" RANDOM HOUSE: "a bar serving beer brewed at a small microbrewery on the premises." ENCARTA "restaurant that brews and sells beer: a restaurant or bar where the beer is made on the premises" AMERICAN HERITAGE "A saloon where the owners make their own Honorable Mayor Rosansky July 10, 2007 Page 4 of 9 beer and serve it on the premises." CAMBRIDGE "a pub which makes and sells beer" [pub: "a building in Britain where alcoholic drinks can be bought and drunk and where food is often available "] 9) The City's procured evidence, e.g., the Police Investigative Report concluded that the Use Permit was complied with and that no violation of Condition 9 or 10 exists 10) The "Restaurant versus a Bar" issue has been addressed by this City within the context of a permit review hearing and the City confirmed that food availability, and not hourly sales, is the controlling factor under the Municipal Code. s ATTACHMENT THREE - USE PERMIT HEARING COMPARISON TABLE From 1998 to 2001, this Council reviewed Use Permit No. 3626 for the Buzz /Warehouse and addressed the standard for what transforms a restaurant into a bar. Specifically, City Staff concluded that under the Newport Beach Municipal Code the unavailability of food service would transform a restaurant into a bar. Addressing Condition 17 of Use Permit 3626, granting the Buzz/Warehouse a 2 :00 a.m. closing for a full service restaurant, City Staff recommended that the full dinner menu be available until closing: "If the food service be closed at any time during the day, the facility would stop operating as a restaurant and become a bar under current code definitions (a place of business where the principal purpose is the sale and service of alcoholic beverages, NBMC Section 20.87.033)." (Use Permit 3626 File, Agenda Packet p. 7 -8, handwritten p. 30 -31.) Similarly, on October 20, 1995, the Newport Beach Police Department conditionally protested a Type 47 liquor license for Palms Restaurant. The Police Department proposed that (1) live entertainment be over by 1:00 a.m.; and (2) for a "bona fide restaurant" that all menu items be available until I I:00 p.m., citing to Business & Professions Code Section 23038 (relates to alcohol and food sales). It would appear that if the City modifies Use Permit No. 3485 in the absence of any finding that the Muncipal Code has been violated, the City would be treating the Brewing Company in a disparate manner as compared to previous permit revocation/modification hearings conducted by the City. Furthermore, in the absence of any formal violation issued against the Brewing Company, or Police or Code Enforcement investigative evidence showing a violation of Use Permit 3485, modification of the Use Permit would illustrate a disparate treatment of the Brewing Company. Honorable Mayor Rosansky July 10,, 2007 Page 5 of 9 177. USE PERMIT CONDITION NO. 6 With regard to Use Permit Condition No. 6; the Brewing Company is prepared to answer any questions that this Council may have and I would like to reserve time to do so. For 13 years, the Brewing Company has complied with the specific and express wording of Condition 6 and has limited the Restaurant/Bar to 1,500 square feet Monday through Friday. The Brewing Company would offer that the interpretation of the Coastal Development Permit is, according to General Condition No. 4 of the permit itself, a matter for the Executive Director or the Coastal Commission to address. Additionally, any interpretation of CDP Special Condition 1 cannot ignore the delegation and acknowledging procedure of CDP Special Condition No. 3 that was fulfilled by the October 13, 1993, letter from the City of Newport Beach to the Coastal Commission. The Monday through Friday use restriction of Condition 6 was memorialized in the City's 1993 letter fulfilling CDP Special Condition No. 3 and that specific restriction was again review and memorialized in 1999 during the Use Permit amendment proceedings. ® ATTACHMENT FOUR - COASTAL DEVELOPMENT PERMIT 5 -93 -137 s ATTACHMENT, FIVE OCTOBER 13,1993, CITY LETTER TO COASTAL COMMISSION FULFILLING CDP SPECIAL CONDITION NO.3 [OPTIONAL ARGUMENT UPON CITY COUNCIL INQUIRY] The Staff Report proposes a couple options for modification of the Use Permit — all of which now include the modification of Condition No. 6. Modification of Condition No. 6 was previously rejected by the Planning Commission and by this City Council. Interestingly, Staff never supported the modification of Condition No. 6 until this Staff Report, If the Brewing Company was provided an opportunity to review a draft Staff Report or to comment on the information provided, it would have argued, as it did before the Planning Commission, that the Conditions of the Permits and the documentary evidence submitted in 1993 is controlling on this issue — along with the 14 years that have past without incident. Staff goes out of their way to ignore the applicable conditions of the Coastal Development Permit that apply to the interpretation of Special Condition No. 1. While the Brewing Company met with City Staff on June 27, 2007, and offered to review and submit input on a draft Staff Report, City Staff denied the offer. Therefore; you have a Staff Report that concludes that there is no "nuisance" evidence to support a modification of the Use Permit and yet the Staff Report offers several modifications based on a theory that the Restaurant /Brewpub is a "bar" for four hours in during the week. The Staff Report confirms that a quarterly accounting is the appropriate standard for food and alcohol sales but asserts that Restaurant/Brewpub could be viewed as a "bar based on sales over a two hour increment.. . While this is a reconsideration hearing of an appeal of the Planning Commission's unanimous approval of the Use Permit without modification to Condition No. 6, the most recent Staff Report invites this City Council to modify Condition No. 6. The Staff Report not only fails to tell the entire story, but it now creates a new Honorable Mayor Rosansky July 10, 2007 Page 6 of 9 explanation of "an error" committed by the City almost 13 years ago and cites to a letter dated May 9, 2007, from Meg Vaughn, Staff Analyst for the Coastal Commission. This evidence was received several months after the City Council's March hearing that is now under reconsideration. May 9, 2007, Meg Vaughn Letter: "It is important to note that the special condition does not call out a day to day limitation of the imposition of restricted area and states simply that: `no more than 1,500 square feet of the service area of the subject restaurant/brewpub shall be open before 5 p.m. "' Ms. Vaughn then provides her personal opinion, without acknowledgement of Special Condition No. 3 or General Condition No. 4; that "If the intent had been to apply that restriction only Monday through Friday, that limitation would have had to been specified in the language of the special condition." This is not true. Equally, under Ms. Vaughn's reasoning, if the intent had been to apply the restriction every day of the week, that limitation should have been specified in the ,Special Condition. Instead, Special Condition 1 is generic because the specificity of the Condition, through its enforcement, was delegated to the City by Special Condition No. 3. In addition, the General Conditions of the CDP explicitely state that the Executive Director or the Commission, not a staff analyst, is responsible for interpretation of CDP conditions. Both of these conditions have persistently been ignored by City Staff and were ignored by Ms. Vaughn. The record before you is replete with evidence that the Monday through Friday restriction was not only established by the City and confirmed by the Coastal Comission in 1993 but also addressed in 1999 without cause for interpretation or modification. A decade later and 18 months into this permit review process the City Staff and Mr. Low now find it appropriate to solicit a staff analyst's subjective opinion of how she would interpret Special Condition 1 outside the context of the entire CDP. Since July 1993, Use Permit Condition No. 6 has stated that: "The net public area of the restaurant/brewpub, which is devoted to daytime use Monday through Friday (prior to 5:00 p.m.), shall be limited to 1,500 square feet." Condition No. 6 clearly states that the 1,500 square feet restriction applies Monday through Friday. In contrast, Coastal Development Permit No. 5 -93 -137 (granted on July 15, 1993) (the "CDP ") is generalized, or as Ms. Vaugh states, "does not call out a day to day limitation." Special Condition No. 1 provides instead that: "Prior to issuance of the Coastal Development Permit, the applicant shall execute and record a deed restriction, in a (form] and content acceptable to the Executive director, which shall provide that no more than 1,500 square feet of service area of the subject restaurant/brewpub shall be open before 5 :00 p.m. The document shall run with the land, binding all successors and assigns, and shall be recorded free of prior liens." Additionally, Special Condition No. 3 to the CDP expressly states that the City of Newport Beach shall submit a letter to the Executive Director of the Coastal Commission that indicates the City's enforcement of Special Condition 1. This prerequisite explains that: "Additionally, prior to issuance of the Coastal Development Permit, the Honorable Mayor Rosansky July 10, 2007 Page 7 of 9 applicant shall submit, for the review and approval of the Executive Director, a letter from the City of Newport Beach indicating that the City agrees that the City's Code Enforcement will enforce the [public] service area restrictions described in [special] Condition 1." The Coastal Commission deferred enforcement of Special Condition No. 1 to the City of Newport Beach, further indicating that the City's Use Permit Condition No. 6 is controlling — especially when the issue is merely one of interpretation 13 years after the fact. The Coastal. Commission acquiesced to the City's specific language regarding the service area restrictions upon their receipt on October 13, 1993, of theSpecial Condition No. 3 Letter from the City of Newport Beach. (See, Stanson v. San Diego Coast Regional Com. (1980) 101 Cal.App.3d 38, 50.) That letter starts by saying: "As requested in the special conditions for the subject Coastal Permit Application, this letter is provided for the purpose of confirming the action of the City Council of the City of Newport Beach relative to its approval of Use Permit No. 3485 (Revised) ... In summary, the City Council's action as it relates to the Coastal Commission's Special Conditions, included the following: 1) The "net public area" of the restaurantlbrewpub, which is devoted to daytime use Monday through Friday (prior to 5'00 p.m.) shall be limited to 1,500 sq.ft." In conclusion, the letter confirms that disclosed conditions have been established as conditions of Use Permit No. 3485 and that the City will enforce said conditions in accordance with Chapter 20.80 of the Municipal Code. A full copy of the October 13, 1993 letter is attached hereto and incorporated by this reference. After the first City Council hearing; Staff has apparently solicited a letter from a Coastal Commission staff person that offers her personal opinion about Special Condition No, 1. Meanwhile, the Staff Report purposely omits Standard Condition No. 4 of the CDP that governs the interpretation of Special Condition No. 1: "Interpretation. Any question of intent or interpretation of any condition will be resolved by the Executive Director or the Commission. " Accordingly, it is not appropriate for a staff person to offer their personal opinion and it is highly inappropriate for City Staff to solicit this type of post hoc rationalization. Instead, if a question of interpretation of a CDP condition arises (i.e., over the past thirteen years), the Executive Director can resolve the question administratively. In light of the October 13, 1993, letter received by the Coastal Commission in compliance with Special Condition No. 3, it makes perfect sense that the Executive Director has not weighed in on this "issue" or otherwise sought to bring it to the attention of the Coastal Commission. The irony here is that the Staff Report cites to the absence of evidence supporting a nuisance condition at the Brewing Company and then suggests that Condition No. 6 must be modified to eliminate Restaurant/Brewpub space on weekends before 5 p.m. The area at issue is the most family oriented part of the Restaurant/Brewpub consisting exclusively of dining tables. The Staff Report also hints that the Brewing Company "contributes" to a nuisance problem and the evidence is difficult to compile. I think what the Staff Report is really saying is that the evidence certain members of the staff would like to see is not there. If the Staff Report would have summarized the Police testimony presented Honorable Mayor Rosansky July 10, 2007 Page 8 of 9 before the Planning Commission and this Council, or referred to the conclusions of the Police Investigative Report, this Council would see that the evidence was in fact compiled and that the Brewing Company does not contribute or cause a nuisance. That is why the Staff Report must now focus on afterthoughts like: (1) Is a Restaurant/Brewpub too bar -like for four hours a week and how can that possibly violate the Use Permit? and; (2) Without complaint or actionable offense for 13 years, how can the Condition 6 use restriction that expressly applies Monday through Friday, apply everyday? IV. CONCLUSION The Newport Beach Brewing Company understands the position of City. The Newport Beach Brewing Company, while permitted as a Restaurant/Brewpub, should focus its efforts on being a restaurant. The success of the Newport Beach Brewing Company has been and will remain the quality of the food it serves and the handcrafted American ale that it produces. You will see from ATTACHMENT SIX to the submitted letter that, for the Restaurant /Brewpub to remain competitive and with the times, they are focusing on cuisine that goes well with food. The full page ad in the annual edition of Orange County, describes the cuisine of the Restaurant /Brewpub. Similarly, as part of the 12 year anniversary celebration for the Brewing Company, a beer tasting and food pairing event was hosted that included all the major breweries in Orange County. And if any doubt remains of the primary purpose and the purpose for the Brewing Company's 13 years of success, attached is a copy of the Brewing Company's pocket menu. How many bars are you aware of that compete (and win awards) for their "craft" on a National scale, advertise their cuisine and print pocket versions of an extensive menu? Even at the focal hours from 11 p.m. to 1 a.m. on Friday and Saturday, the characteristics of the permitted Restaurant/Brewpub dominate hard liquor sales. The most recent data, from the Fourth of July through this past weekend, shows that the original Class 23 license dominates the Brewing Company's operations from I 1 p.m. to 1 a.m. In fact, by unit, beer sales outpace liquor sales by a 2 to I margin. These sales are a reasonable characteristic of the later hours of a Restaurant /Brewpub and an impossibility for a standard "Bar." V. REQUESTED RELIEF The Brewing Company supports the adoption of the draft Resolution set forth as Staff Report Attachment No. 2 with the exception of all references to violations, or potential violations, and the proposed modification of Use Permit Condition 6. If this Council perceives any nuisance issues that would support a modification of the Brewing Company's hours of operation, we respectfully request that before making such a determination that this Council assign the matter to ahearing officer in accordance with the due process protections of Municipal Code Section 1.08.055. Newport Beach Municipal Code Section 1.08.055. "The City Council ... may designate a hearing officer to take evidence, Honorable Mayor Rosansky July 10, 2007 Page 9 of 9 direct preparation of a transcript and submit proposed findings and recommendations in a form suitable for adoption whenever authorized, or required, by the provisions of this Code; to conduct any hearing or appeal on any matter including the issuance, denial, revocation or modification of any permit or license or whether a particular condition or activity constitutes a nuisance or fire hazard. The hearing . officer shall conduct the hearing in a manner that complies with constitutional, statutory and decisional law. The City Council„ board or commission, City Manager or Planning Director may adopt the proposed findings and recommendations as their decision or may take any other action that is supported by substantial evidence in the record. (Ord. 99 -15 § 1, 1999: Ord. 95 -37 § 1, 1995)." Thank you for your consideration on this matter. Respectfully submitted, M[LES ®LA GROUP, P.C. By; Stephen M. Miles Attachments: One through Six VOLUNTARY IMPLEMENTATION MEASURES NEWPORT BEACH BREWING COMPANY In direct response to the direction given by the Planning Commission on August 17, 2006, several voluntary actions have been taken by the Newport Beach Brewing Company ( "NBBC ") to improve its Restaurant /Brewpub operations: 1. Line Relocation. In coordination with the City, NBBC has administered a new entrance from the front of the building that eliminates any queuing and loitering in the NBBC parking lot. As observed by the Investigative Report, the new entrance successfully eliminates noise that may otherwise be detected by the Cannery Village residents that purchase lofts directly adjacent to the NBBC parking lot. II. Security Plan and Security Guard Presence. Employment of up to 5 Security Guards with a primary function of controlling and patrolling the NBBC parking area until 30 minutes after closing. The specific duties currently undertaken by NBBC Security Guards will be memorialized in a Security Plan that will be presented to the City and the Police Department. Key elements of the NBBC Security Plan include: a. Noise abatement through notification of patrons. b. Implementation of LEADS concepts — identification review to eliminate risk of underage drinking. c. Parking area enforcement of noise restrictions and nuisance activity; documentation of noise issues and nuisance activity from the municipal parking lot and ancillary public areas (streets and alleys). d. Consideration of area -wide security plan, including dedicated parking lot security patrol, for the NBBC parking lot and municipal parking lot. e. Response to Cannery Village complaints and concerns and coordination with the Newport Beach Police Department. iIi. Bottle Recycling Program. NBBC has implemented a bottle recycling program that collects bottles inside the restaurant to eliminate noise. Also, the use of large, deliverable storage containers eliminates the "dumping" of glass and its associated noise. IV. Trash Dumpster Area. NBBC submitted architectural design plans to the City for an enclosed and covered trash dumpster area last year. The enclosure for the trash dumpster is now complete with a galvanized metal roof that matches the architectural materials utilized for the Cannery Village. The enclosure is locked and secure. V. Alcohol Training and Community Program Participation. All NBBC owners, operators, and employees have successfully completed a State certified LEADS program and will require all future employees to complete the LEADS program. NBBC also remains active with the City of Newport Beach Police Department and attends business programs hosted by the Police that focus on the prevention of underage drinking. Use Permit Conditions el No. 9 No. 10 located on Lots 18 -21 and portions of Lots 17 and 22, Block 230, Lancaster's Addition, for the duration of the existing and proposed uses located on Parcel 1, Parcel Map 92 -40 (Resubdivision No. 527). 5. The property owner shall pay for 29 in -lieu parking spaces in the Cannery Village Municipal Parking Lot on an annual basis for the nighttime operation (after 5:00 p.m.) of the restaurant/brewpub use as agreed upon by the Sales Agreement between the City of Newport Beach and the property owner. 6. The net public area of the restaurant/brewpub, which is devoted to daytime use Monday through Friday (prior to 5:00 p.m.) shall be limited to 1,500 square feet. The balance of the net public area shall be physically closed off to the public by a fixed barrier and shall not be used until after 5:00 p.m. daily. 7. The hours of operation for the restaurant/brewpub shall be limited to the hours between 6:00 a.m. and 11:00 p.m. Sunday through Thursday and between 6:00 a.m. and 2:00 a.m. on Friday and Saturday. 8. All employees shall park either in the privately owned off -site parking area or in one of the municipal parking lots in the area. 9. The operation of the brewery and the service of alcoholic beverages shall be ancillary to the primary food service operation of the restaurant. 10. The approval of this use permit is for a restaurant/brewpub and shall not be construed as the approval of a bar, cocktail lounge, or other use serving alcoholic beverages during hours not corresponding to regular meal service hours (food products sold or served incidentally to the sale or service of alcoholic beverages shall not be deemed as constituting regular meal service) nor as the approval of a cabaret, nightclub, or other use with the principal purpose of providing live entertainment and/or dancing. 11. No outdoor loudspeakers or paging system shall be permitted in conjunction with the proposed location. 12. A washout area for refuse containers shall be provided in such a way as to allow direct drainage into the sewer system and not into the Bay or storm drains, unless otherwise approved by the Building Department. 13. Kitchen exhaust fans shall be designed to control smoke and odor to the satisfaction of the Building Department. 14. All mechanical equipment and trash areas shall be screened from surrounding public streets and alleys and adjoining properties. 15. The development standards regarding walls surrounding the restaurant site and underground utilities shall be waived. iv "> ✓ City of Newport Reach Use Permit Revocation/Modification Comparison Use Permit No. and .Date of Issuance !Date of Complaints and Official Actions Evidence Presented and Relied on by City Judicial Procedure and !Due Process Controls Notes and Observations Use Permit No. 1996: 228 Within months of use permit issuance and July 22, 1999, Planning In response to public 3555(A) — Twin complaints filed operation, City documented that Twin Palms Commission directed the records act request, Palms Restaurant; with the City from was operating without a Live Entertainment Planning Director to City was unable to Opened in late 1995 noise;, 28 Police Pen-nit appoint ahearing officer produce any files of calls past Use Permit *Failed to obtain 10/20/95 NBPD conditionally protesting a July 22, 1999, PC modifications of a Live Entertainment 1998: 281 Type 47 liquor license for Palms Restaurant. Minutes: Assistant City restaurant or bar use Permit until June intoxicated persons NBPD proposed (1) live entertainment over Attorney Clausen directs permit; No examples of 12, 1998 reports; 52 fights, by 1:00 a.m.; (2) * *for "bona fide restaurant" the inclusion of the modification or 10 arrests all menu items available until 11:00 p.m.; (3) Administrative Citation- revocation of a Use Permit 3555: B &P Code Section 23038 (relates to alcohol Hearing with the Hearing restaurant or bar that "full service Live Entertainment and food sales); Officer review did not also have a Live outdoor restaurant Permit issued in Entertainment Permit with incidental light of complaints; 3/6/96 Burnham memo to Dan Ohl;, schedule October 1'2; 1999, alcoholic beverage Permit issued by hearing for modification or revocation — Administrative Hearing, City has permitted service, live City Manager "Four Seasons has done a great job before Judge Donald several "full service entertainment and Kevin Murphy documenting complaints they have received Smallwood (ret.) in restaurants" and valet parking..." (under authority of regarding noise." accordance with NBMC entertainment NBMC Title 5) Section 1:08.055 facilities /nightclubs Operation to 2:00 with written 511196 Burnham letter to Twin Palms attorney with 2:00 a.m. closings. a.m. findings and re L.E.P.- ref copies of Police Reports in the These facilities do not citation to City's files, Officer Bradley report re 4/6196 provide entertainment "ordinary disturbing the peace complaint besides alcoholic sensitivity" and *reports removed from City files as privileged beverages during late "reasonable information hours of operation. sensitivity " This factor does not standard for noise 1/11/99 Memo from Captain Tim A'ewman to make an entertainment 5/14/98: Notice of Sharon Wood: "excessive and unreasonalbe facility a bar. Violation issued for noise'; "existing alcoholic beverage outlet is violations of: operated under objectionable conditions as Business & Professions NBMC 10.50.020I described in NBMC 20.89.030'; Code Section 23038 (Nuisance); "unreasonably disrupts guests staying at the 14.36.030 Four Seasons Hotel, a condition that may NBMC Section (Prohibited violate the Municipal Code"; "chronic and 1.08,055 discharge); Use recurrent noise complaints; 669 complaints Permit No. 3555 from Hotel customers in 3 years; Condition 21 and Finding No. 9; II. Use Permit No. 6'22/98 5/21/98, PC Minutes for Use Permit 2/16/00; City notifies "Extensive official 3626— Administrative management of issues citation evidence Buzz/Warehouse Citation Condition 17, 2:00 a.m. closing: "full service and alleged violations in relating to specified Condition 23 & 24 restaurant' therefore "staff recommends that writing Use Permit conditions 1998 Use Permit NBMC 5:28.040133 the full dinner menu be available until for full service (noise) closing." "If the food service be closed at any 11/9/00 PC Revocation *Extensive due process restaurant and live NBMC 10.26.025 time during the day, the facility would stop Hearing controls mandated by entertainment operating as a restaurant and become a bar the City Council in in 2/5/00 undercurrent code definitions (a place of 11 /3/00 Clausen Memo accordance with Thurs -Sun Administrative business where the principal purpose is the Revocation procedure; NBMC Section 2:00 a.m. closing Citation C2000- sale and service of alcoholic beverages, must show failure to 1.08.055 0147 NBMC Section 20.87.033). (p. 7 -8; reasonably comply with Use permit Noise; Condition handwritten p. 30 -31.) terms of use permit, or *Similar procedure and conditions at p. 24 compelling public evidence present for 12/35. 3/6/00 ABC Formal Advisory Letter necessity (but limited review (and 2/13/01 Revocation compensation is required limited filed Hearing before City [ 11/9/00 PC Minutes] for latter basis) documents) of Use Council Permit 1956 - 1999 - apparent use permit violations "In order to justify the Thunderbird observed by NBPD; increased calls and intereference with the arrests documented by NBPD (1119100 PC constitutional right to minutes p. 23) carry on a lawfully permitted business it Findings based on declarations from NBPD, must be clear that the Code Enforcement and ABC that operation public interest requires was contrary to public health, safety & such interference and that welfare (11/9/00 PC minutes p. 24); the means employed are necessary to accomplish Observations of NBPD in declarations the purpose and are not submitted at hearing; unduly oppressive on [operators]... Whenever Specific violation of Condition 3 of the use alternate remedies can permit for discontinuing valet parking achieve the same goal, requirement ;, such as the imposition of additional conditions or Administrative citations for exceeding noise controls, these avenues standards as set forth in Condition 24 of use ought to be pursued if permit; feasible." 1 /1 /00 — 9/30/00: 66 calls for service, 98 -Phil Kohn due process officer initiated calls; 50 arrests for analysis for City opines intoxication/battery-, that staff report precede presentation by operator ABC Formal Advicement for "disorderly house" and "nuisance" operation; 6/12/01 City Council minutes: Burnham and Game area converted to food & beverage I Ridgeway, rescind City area, 180 day discontinuance of full service action of 2/13/01, refer restaurant; revocation back to PC, and direct Planning 3/6/99 Director to designate a Code Enforcement memo re 3/2/99 hearing date and a investigation confirming improper parking by hearing officer; Buzz patrons Ex. 23 to 2/13/01 Report Undated Memo From Jim Sinasek to Patty Memo fiom Clauson to Temple - Second citation to Buzz for noise PC re Use Permits exceeding 60db after 10 p.m. "It is staff's position based upon the 2/22/00 information provided by City letter re cooperative effort based on City Code Enforcement alleged noncompliance; new application for a Officers, Police Officers restaurant will be submitted to Campbell and Planning Department staff that all three of [the [1/23/01 Report to Mayor] revocation findings] may reasonably be made." [2/13/01 Report to Mayor] *specific conditions Declaration of Code Enforcement Officer notes and facts applied; James Sinasek (11/9/00), Ex. A, Admin not based on legal Citation (noise) theories or intent -based revisionism Declaration of Charles Spence; Ex. B, Admin Citation (noise, no food service, no games) Declaration of Vladimir Anderson, NBPD, 6 pages; cover charge; no food; inadequate security; nightclub observations; STATE OF CALIFORNIA —THE RESOURCES AGENCY PETE WILSON, Gomm, r i CALIFORNIA COASTAL COMMISSION SOUTH COAST AREA Page 1 of 3 . 245 W. BROADWAY, STE. 380 .Date: 1- 21 -94. P.O. BOX 1 H, Permit No. S -93 -137 LONG BEACH, CA 908024416 )310) SM5071 On July 15. 1993 , the California Coastal Commission granted to this permit subject to the attached Standard and Special conditions, for development consisting of: Conversion of an existing 4200 square foot former market /deli (currently vacant) to a restaurant/brew pub and the addition of 600 square feet of outdoor dining, Existing 3100 square foot, second floor office will remain. more specifically described in the application file in the Commission offices. The development is within the coastal zone in Orange County at 2920 Newport Blvd Newport Beach Issued on behalf of the California Coastal Commission by PETER DOUGLAS Executive Director By: — Title: Staff Analyst The undersigned permittee acknowledges receipt of this permit and agrees to abide by all terms and conditions thereof. The undersigned permittee acknowledges that Government Code Section 818.4 which states in pertinent part, that: "A public entity is not liable for injury caused by the issuance. , . of any permit..." applies to the issuance of this permit. IMPORTANT: THIS PERMIT IS NOT VALID UNLESS AND UNTIL A COPY OF THE PERMIT WITH THE SIGNED ACKNOWLEDGEMENT HAS BEEN RETURNED TO THE COMMISSION ® OFFICE. 14 Cal. Admin. Code Section 13158(a). Date A6: 4/88 Signature of Permittee Page 2 ofd Permit No. 5 -93 -137 Notice of Receipt and Acknowledgment. The permit is not valid and development shall not commence until a copy of the permit, signed by the permittee or authorized agent, acknowledging receipt of the permit and acceptance of the terms and conditions, is returned to the Commission office. 2. Ex iration. If development has not commenced, the permit will expire two years from the date on which the Commission voted on the application. Development shall be pursued in a diligent manner and completed in a reasonable period of time. Application for extension of the permit must be made prior to the expiration date. 3. Cpmpliance. All development must occur in strict compliance with the proposal as set forth in the application for permit, subject to any special conditions set forth below. Any deviation from the approved plans must be reviewed and approved by the staff and may require Commission approval. 4. Interpretation. Any questions of intent or interpretation of any condition will be resolved by the Executive Director or the Commission. 5. Inspections. The Commission staff shall be allowed to inspect the site and the project during its development, subject to 24-hour 'advance notice. 6. Assignment. The permit may be assigned to any qualified person, provided assignee files with the Commission an affidavit accepting all terms and conditions of the permit. 7. Terms and Condi ions Rum with the Land. These terms and conditions shall be perpetual, and it is the intention of the Commission and the permittee to bind all future owners and possessors of the subject property to the terms and conditions. SPECIAL CONDITIONS: Prior to issuance of the Coastal Development Permit, the applicant shall execute and record a deed restriction, in a from and content acceptable to the Executive director, which shall provide that no more than 1,500 square feet of service area of the subject restaurant/brewpub shall be open before 5 p.m. The document shall run with the land, binding all successors and assigns, and shall be recorded free of prior liens. 0 Page 3 5 -93 -137 2. 'Main The proposed project includes the use of Off -Site parking for which the applicant has entered into long -term parking agreements. Prior to issuance of the Coastal Development Permit, the applicant shall execute and record a deed restriction, in a form and content acceptable to the Executive Director, which shall provide that the applicant shall maintain, for the life of the development, a total of 41 off -site parking spaces between 6 :00 a.m. and 5:00 p.m. daily, and a total of 67 off -site parking spaces between 5:00 p.m. 2:00 a.m. daily. 3. Recission of Amendment to Parking Agreement: Prior to issuance of the Coastal Development Permit, the applicant shall submit evidence that the Amendment to Parking Agreement approved by the City of Neworport Beach on February 18, 1993, has been rescinded by the City Council. Additionally, prior to issuance of the Coastal Development Permit, the applicant shall submit, for the review and approval of the Executive Director, a letter from the City of Newport Beach indicating that the City agrees that the City's Code Enforcement will enforce the puobliip service area restrictions described in ecial Condition 1. Prior to issuance of the Coastal Development Permit, the applicant shall submit, for the review and approval of the Executive Director, final floor plans illustrating the area proposed for the day use restriction imposed in special conditional, above. 1033F MV /lm El Au-11-06 01:35pm From °California Coastal X552 905089 T -259 P.002 /0pp02 F -750 U U 11 I no Ms. Ms Meg Vaughn California Coastal Commission OCT 13 1993 245 W. Broadway, STD✓. 380 P. O. Box 1450 CALIFORNIA' I.ong Beach, CA 90802 COASTAL COMMISSION SOUTH COAST DISTRICT Subject: Coastal Permit Application No, 5 -93 -137; 2920 Newport Boulevard Dear Ms Vaughn: As requested in the special conditions for the subject Coastal Permit Application, this letter is provided for the purpose of confirming the action of the City Council of the City of Newport Beach relative to its approval of Use Permit No. 3485 (Revised). As indicated in the attached excerpt of the City Council minutes dated September 27, 1993, the City Council &proved Use Permit No. 3485 (Revised) with the findings and subject to the conditions set forth in the City Council staff report so dated September 27, 1993. In sumarry, the City Council's action as it relates to the Coastal Commission's Special Conditions, included the following: 1. The "net public area" of the restaurant / brewpub, which is devoted to daytime use Monday through Friday (prior to 5:00 p.m.) shall be limited to 1,500 sq.ft. The balance of The "net public area" shall be physically closed off to the public by a fixed barrier and shall not be used until after 5:00 p.m. daily. 2. The property owner shall pay for 29 in -lieu parking spaces in the Cannery Village Municipal Parking Lot on an annual basis for the nighttime operation (after 5:00 p.m.) of the restaurant /brewpub use as agreed upon by the Sales Agreement between the City and the property owner. Inasmuch as the above conditions have been established as conditions of Use Permit No. 3485, the City of Newport Beach will inforce said provisions in accordance with the Use Permit Procedures set forth in Chapter 20.80 of the Municipal Code, Jt should be further noted that Item No. 2 above, is in keeping with the City Council's action rescinding its previous action which allowed the applicant the daytime use of in -lieu parking in the Cannery Village Municipal Parking Lot. ,, We hope that this information will be sufficient for your purposes, and should you have any questions feel free to contact Mr. William Ward in our office, at 644 -3200. truly au rS D. HEWIC ARDirector ...planning \bill- w \up3485.1tr _D 0 0 cuisine The Newport Beach Brewing Company A Microbrewery Which Features A Delightful Menu For Fun Gatherings A casual, upbeat decor surrounds you at the Newport Beach Brewing Company, a favorite with Newport Beach local's. General Manager, Jerry Kolbly, proudly offers qualityfood made with the finest ingredients at the Newport Beach Brewing Company. Try the wonderful Southwest chicken salad, BBQ chicken pi=, or herb - crusted halibut and top it off with one of their most popular desserts, the chocolate chip calzone for two, and you'll know why folks keep returning. Conveniently located within steps of the beach and near Pacific Coast Highway, the Newport Beach Brewing Company has more to offer its guests than most restaurants of its kind, with a variety of unique beers — featuring their most popular signature beers Newport Blonde and Bisbee's ESB — all available for take -out. (Take advantage of the free Internet access — both hardwired and wireless.) Great service and award - winning brews with the best patio dining in Newport Beach all combine to make Newport Beach Brewing Company a great place to gather with friends and family for fabulous food and fun. A full bar, pleasant staff, and reasonably priced menu with daily specials will always welcome you. Newport Beach Brewing Company • 2920 Newport Boulevard, Newport Beach CA 92663 - 949.675.8449 • www.nbbrewco.com CALIFORNIA I THE ANNUAL EDITION 1 13 • • 2920 Newport Blvd. Newport Beach, CA 92663 (949) 675-8449 (949) 675 -4562 narcM1 OUr latm'vmvn online at www.menudub.com - PolkliGlwyPacaurzoar MtlYtOtkb�fsw au.uv ,asammru swan ao<wsctoauy. nrwnocm SALADS A'r.p any 1, 2 WAd Yid 1, wryq,<d with 6w. dd I .. Flat Iron Steak" Fiesta Salad nder nu Iron sm,k oppad,m.ri.pgr<e .d,.: It, cwhouse, Mixed Greem i -.Cory grerm. mo:urella..xmrm,. mmanw.IX ! -r asttinr Cobb Salad _lamn .._............ �ne.RLlenaneu..Hnlfr. l'u11' I `.,ibat$alnd .bcimp ar char 4,n.Jda I „ kdapl Pecan do Apple Salad hero. l.olmlw,i,andud pauu. apple. ,. I•.mL .Yndgnr„d<.ulnp.__.__..- __.... :hinge Chicken Salad .o :'red li Ssl , a.n Aht d er r nanr nap bdry gnmu,x.d in u ' s edge Salad do ny..._.. .. .. . irkon tJ d See Our Beer &aardh for 1 thday's Brews- www.Dbbrewco.com I5URGERS & SAND• STARTERS sn>; W all M.dadm Homy Murtud. R,n,h w w ehrne to, Jippiq.wc Chicken Tenders 4i hp un.l,•f W wudm our Blw,J. b.a 6'. T , P,1 X1 hlifj old I.. Puerto Nucm Fucaadrlls T,nya Iwui„ r h n. ,J racy, hih,i . Callen old apkq.dd,4<I •r rcmu.: w /.bnmp Ad I Callen Lambess Uu !Si.rIan,tktiv Apperuu. h.by New 7,44 a kml •lnrp�.bnkkd Chicken Kabobs Martuswd chukm gkrrRnd..d gn'IkJ. ur..J •.,. Buffalo Wings Twndln au lu,rry�uu\xmauaa.nn,J ., c,r ,ace. nluh +nA blen dme. 20 pnc......_._____._.___.__ Sampler Plate Cu a.... E.S.B -Skirlmp Ado :m rs R Fartn<d.hnmp, r ld ma.w.rd., Rritk Oven Garlic Bread..__...._. Artichoke and Spinach Dip._- ._.____.. Ccriche 7AI9�om Ourlaouw...rLk,...opped xnh nue.do. r<wd ", . o•.nIL: hip, _ __......_.___ _.._,.__�...__.. STEAKS, CHICKEN & CHOPS odd na,p nl.wpm.Ue uLd (nr is Brown Ate Pork Chops bia ud,n,mr i!wwn AlG a „d 4unnlq,. wr+sd YFh n.nhed pmuu<.a.ng Baby Bask Ribs S,om lxmd,n,w n.n rangy hk4ory u,xe. /nd ,. p.nn d w ggic._...__. __. _ _Full 21, 11.11`16 1 ' "Baseball Cut” Top SIM IN,:. hole uu,•ppM / Whrew. I `hall p IWd d _ ow..ami. bolam. III., __ _........ Chlmlchurrl Steak Strips, PI111,66 Srr.k ... I,,p. m +.imrd m our E.S.S. ov, .s'h oy<cwn 6iffichu'. u,xe....__.- ....._._._ She Chicken 5anrkc3 w a.b.nyrnam.ro,<sJ mn.i. <Em•, M+.hrd pobm..rd .- .grubk :. NORTH OF THE SOUTH BORDER La Pat Enchiladas Q,dmncmbJadac mpp.J.Ja romuJwuucr..: Cari lms CerW" Sm.,nn "d pw4mbeer d IX uge...and nor! Blackened Dorado Tacos .... ..... .�.- .._.__ The "Brew�eam" Year rhaiu u(+dmkrnwnmwF,xriro wah bnnar - rxe. Fresh Fish Tacos .._....___..._._— _._____.1z Salmon Veracruz Saloum Pikt. p.ppen, rmmuau k aNOw,...xd vial, ngaablo IX whn'r rk ._.__._....._..__..._ . ..._.__. U BMWC7 Lmum N'rops firJW ,kkrn.l mule ro4�+1 ntlnbm Fun pruu,., aaunq.\uda.oJ s ak..... .. A.pi,r ,plum and sully uure . – ..- ........_ – i Teeter t.aju,nanJ Ah, k eoadle., area on:uul om. f AfanlYii \trips _ -... ___. ha16e 1 Am, 111 cropl,rd IIh Ixiun gr Brea' ape Grill M rw.x nhpep)aruw Jh u.Y hRRnlleJ peppm sad n wn,,., .. I o*n o•r..dand mvmm� _.. BRICK OVEN PIZZAS Suluumrcpan Jouaal1 bnRab wni�uw,l"rn Wublr.rmnJJ i.i�dJ my `M.d h�k.J S.u.>Ee i� i u.n any pisu mro i c +Icon. wl\h rxvu rhnr uU m,4, n.IJm,ly.ur pim.dd� Guile Ranch Pizza Girken. aaih rani, um<, nw+areom., ahiciwku 4arlthicrits Plus slu Ranuonncon,g,d,., n.oamelly and foul. t Cheese Pizza Muundl..lum,nv,a,mo4d goad...__. _... Pepperoni Pima .. ....._..._..... ..... ... __._..._. _ BBQ Chicken Pima slur BRO w infua<d. /eur pJr al�rM ��wn\. .wzzud a..n,ok<d gou,i.. hr.h,damm�__._.� Chicken Peam Pizza r- h.:k,n pf.ouua n od mamma, fnah,ommxa.._ PASTAS & FAVORITES All pwn,ndu . pill, Ford. Add. up o(wupnnid<uId far 3.11 Pesto Porter Rovhdls ibrnhell hr"nm nvkJj t pprd Oh 1 r rpeam is Brewholne Chicken Posts H<rha II d i' k.b...... p a lody,pu.d r..wau bull le b ._ .. ...... - ....,-- .. –..._ 16 Iderb Crusted Halibut Nor<hnn Wihu, Canard .0h our herb wawninp. 'rand./ pmuou sled ugeuh4•�_.,_...__...__. 19 Scampi Sty le Shrimp Plants Larg<pollatnlmp, Irerh prlir,,om.mu a FuJ in s Maple Pmn Crusted Trout 'fpp,d wi.h an.k lemon M.rcn u,x, need rich ' You Ca" it Pasta Choi« o(maunu.. pull d, p.nm w (axu.ciMallredn . l3 Add'M.d M,kdt Sun.g. (mi Cajon Shrimp Peace Lugr gulf d,nmp, Csfun db.do uuc<ud anbna,w.r peon....- ....___�_. .._._ ._.... 16 Beer Battered Fish 'a' Chips Clam Chowder, Whitey's Chili or Soup of the Day N.+- Hnyland,U. chawd., or Whiny'. ChJl,n.la, gem h.n.l la.l "i,h. gnrdm whd. Ask yon..er,rr ahnu, oar coup nl rh<d.y I I. Cup 1. {. la cartel Sim Macs Cioppino sno., nb, pulldnmp. fish uallapu <.knun muudund ...... lulim. nr.ad vnh Mrs ... . .. . . __ ....._ ... ......_._._...__ -_ Is, -/ -- --R-- /7 -.1-r cow CC72 Jfv L,) A) e)/---rou —_k!jOO ry L AP-7C 07 4 iv 7-CD W-K- —P - -:1 1 � -7 - —7Z71 f e' J-j g7d, r7Z 7- 7;7- 7/r010-� - �I'7 Bruce J. Low 411 29th Street Newport Beach, California 92 JNNGF1,FOey 0EPART4,'A1r May 15, 2007 C/ MAY 15 7007 The City of Newport Beach ®�NEPORI Planning Department O4r°Ic� 3300 Newport Boulevard Newport Beach, California 92663 Attn: City Council Re: Newport Beach Brewing Company (Use Permit No. 3485) Dear Honorable Council Members, This letter is in direct response to the portion of the Staff Report that addresses CONDITION NO. 6, which can be found on pages 6 and 7 of the Staff Report dated January 4, 2007. I disagree with Staff's conclusion that this condition (restriction of service area to 1;500 square feet) the restriction applies seven days a week. The advice of the City Attorney's office to Staff "that enforcing conditions imposed by a different jurisdiction is not advisable." This "low road" path will only force a showdown at the California Coastal Commission which will set back the effort of the City of Newport Beach to have the latitude to issue Coastal Development Permits through the LCP and LUP regulations. It is "an end" run to avoid the clear responsibility of the City of Newport Beach. It is a bad idea. The Coastal Development Permit (# 5.93.137 dated 1.21.94) under SPEACIAL CONDITIONS 1. specifically states: "Prior.to issuance of the Coastal Development Permit, the applicant shall execute and record a deed restriction, in a form and content acceptable to the Executive Director, which shall provide that no more than 1,500 square feet of service area of the subject restaurantlbrewpub shall be open before 5 p.m. This document shall run with the land, binding all successors and assigns, and shall be recorded free of prior liens." If this Special Condition intended to limit the restriction only Monday thru Friday, it would state so. Furthermore, the minutes of the September 27,1993 Newport Beach City Council meeting (volume 47 -page 253) also state; "reduce the allowable daytime "net public area" to 1,500 square feet before 5 p.m. "Again, if the Council intended to limit the restriction only Monday thru Friday, the record would state so. The intent of the Coastal Commission and City Council is clear and needs no further speculative interpretation. Logic does not accompany Staffs analysis. An error was made in the preparation of the Use Permit and the Deed Restriction. And even if one mistake leads to another, it does not change the facts, the intent, or the record. For Staff to assume that "Coastal Commission Staff must have accepted this commitment as there is no evidence to the contrary and they issued the Coastal Development Permit shortly in early 1994." is nothing more than a speculative attempt to muddy the waters and skirt ownership of the obvious error in the preparation of the Use Permit and Deed Restriction. Staff has no specific knowledge of the California Coastal Commission's point of view regarding this issue. If Staff can simply decide all matters for themselves, then why bother with city public hearings or even the California Coastal Commission's directives? I am surprised that the Newport Beach Planning Staff has omitted further evidence of the Coastal Commissions intent and directive in the Coastal Development Permit. Planning Staff inquired to Mr. Karl Schwing of the California Coastal Commission pertaining to the intent of the Coastal Development Permit. Mr. Schwing responded in an email on or about July 26, 2006 to Mr. Jim Campbell's inquiry. The following is Mr. Schwing's response: "James, I've consulted with the Planner, Meg Vaughn, who originally worked on this project and we've re- reviewed the file. We've concluded that the floor area limitation imposed by the Commission applies daily, not just Monday through Friday. is a viable method of providing narking sufficient to support opening additional floor space before 0 p.m. (wittrour impacting pu rc parking resources and public access), then the Brewing Company could consider applying for a permit amendment to implement that proposal." The record, the intent of the City Council and the California Coastal Commission, including a recent re- clarification of the Coastal Commission's position, as well as, the available remedy for the Brewing Company are clear and specified. The California Coastal Commission has issued a letter to the City of Newport Beach dated The Brewing Company has been unfairly and incorrectly taking advantage of a mistake. This is "unjust enrichment." A doctrine that prevents persons from benefiting from the mistake of another. If a bank mistakenly deposits funds into your bank account, you must return them. The counsel for the Newport Beach Brewing Company hangs his hat on an alleged "rule" that allows counsel to believe that Mr. Schwing is not authorized to render the above opinion on behalf of the California Coastal Commission. Counsel believes the Executive Director is the only person authorized to do so. However, Counsel does not take the initiative to request action from the Executive Director and for good reason. Counsel knows the Executive Director would promptly support the decision of Mr. Karl Schwing and Ms, Meg Vaughn. Counsel also knows that if the Newport Brewery applies for an amendment to its Coastal Development Permit that the California Coastal Commission will require a complete parking study to accompany the submission. A parking study that will surely demonstrate there is not ample parking available to justify the amendment. The intent of the California Coastal Commission was to prevent a conflict with the public's right to use valuable and limited public parking. The California Coastal Commission has been very vocal and firm regarding parking in the Cannery Village and they believe the parking situation is getting worse every year. The obvious mistake in the Use Permit and the ability of the Newport Brewing Company and the City of Newport Beach to ignore the directives of the California Coastal Commission unfairly damages the rights of the public and causes irreparable and continual harm. Why are we, as a city, afraid of compliance? Therefore, I request that this Council adhere to the directives of the California Coastal Commission and correct the error in the Use Permit, execute a new enforcement letter to the California Coastal Commission, order a new and correct Deed Restriction and enforce the service area limitation seven days a week, as designed and mandated by the California Coastal Commission and approved by the Newport Beach City Council Require the Newport Beach Brewing Company to return the ill gotten accommodation for the use of the public. STATE OF CALIFORNIA - I'll L' RESOURCES AGENCY Arnold Schwarzenmer. Go e' o CALIFORNIA COASTAL COMMISSION Soma Coast Area Oilice ~y 200 Oceangate, Suite 1000 Long Deach, CA 90802 -4302 (562) 590.5071 May 9, 2007 Mr. James Campbell Planning Department City of Newport Beach 3300 Newport Blvd. P.O. Box 1768 Newport Beach, CA 92658 -8915 Re: Coastal Development Permit No: 5 -93 -137 (Doan) Newport Beach Brewing Company 2920 Newport Blvd., Newport Beach Dear Mr. Campbell: On July 15- 1- 973-the Commissoon approved-fhe above re ef nced coastal deo'elapment- permit; subjeet o fevrs erdi eonditions: The caastai develop was issued on August 10, 1993, A copy of the Coastal Commission staff report on the matter and the coastal development permit are enclosed with this letter. A question has arisen with regard to the Commission's intent in imposing Special Condition No. 1 which states: "Prior to issuance of the coastal development permit, the applicant shall execute and record a deed restriction, in a form and content acceptable to the Executive Director, which shall provide that no more than 1,500 square feet of service area of the subject restaurant/brewpub shall be open before 5 p.m. The document shall run with the land, binding all successors and assigns, and shall be recorded free of prior liens and encumbrances which the Executive Director determines to affect said interest. " The question regarding this special condition is whether the limit on service area applies seven days a week or only Monday through Friday. The Commission's concern in requiring that adequate parking be provided with new development is that that new development with insufficient parking forces patrons of the new development to compete with beach -goers and other visitors to the coastal zone for the limited public parking spaces available. Thus, patrons of the new development, in using public parking spaces, decrease the total amount of parking spaces available to the general public. This then adversely impacts public access. Coastal Development Permit 5 -93 -137 Newport Beach Brewing Company Public demand for parking in the coastal zone is typically higher on weekends. This is especially true in the summer, but also throughout the year. As is reflected in the findings of the staff report and in the audio tape of the Commission hearing, the Commission's intent was that the restriction on service area of the restaurant be applied every day (i.e. seven days a week). It is important to note that the special condition does not call out a day to day limitation of the imposition of restricted area and states simply that: "no more than 1,500 square feet of the service area of the subject restaurant/brewpub shall be open before 5 p.m." If the intent had been to apply that restriction only Monday through Friday, that limitation would have had to been specified in the language of the special condition. I hope this adequately answers the question regarding the restrictions on daytime use of the Newport Beach Brewing Company's public service area required as a condition of approval for coastal development permit No. 5 -93 -137. Please do not hesitate to contact me at the above number with any questions regarding this matter. Sincerely, .(,d Meq Vaughn Staff Analyst CC: Bruce J. Low 5 -93 -137 NBB speccondt 5.10.07 my Bruce J. Low 41129th Street Newport Neaeh, California 92663 May 15, 2007 City of Newport Beach 3300 Newport Boulevard Newport Beach, California 92663 Attn: City Council RE: Newport Beach Brewing Company 2920 Newport Boulevard, Newport Beach Use Permit Number 3485 (9/13/1999) Dear Honorable Council Members: The hearing scheduled for May 22, 2007 is the result of 13/4 years of effort by the neighborhood pertaining to numerous complaints regarding the abuses which are regularly Inflicted upon the residents and businesspersons.in the-Cannery Village by the Newport-Beach Brewing Company. We had hoped that Staff and the Planning Commission would be able understand to the needs of Ca a an -reel n e Newport Beach Brewing Company operation pursuant to the existing Use Permit. Unfortunately, Staff and the Planning Commission do not get !t! Instead, we are heading towards even more latitude for our already abusive neighbor. With respect to your decisions regarding the Newport Beach Brewing Company, It will be necessary to determine "What exactly Is this place? What Is a "restaurant/brewpub "? What is it suppose to be? Is It a restaurant or a bar, nightclub? Condition No. 9 of the current "Use Permit" Is a good starting place to define the operation. The 1999 version, which Is applicable today, states 09'. The operation of the brewery and the service of alcoholic beverages shall be ancillary to the Primary food service operation of the restaurant." Staff and the operator convinced a tired Commission to remove the word "prima rv" from conditlon No. 9. This Is devastating and changes the 'restaurant" approved use in the direction of a ".bar" approved use. You can not allow this to happen. The Brewery Is known as "The Newport Beach, give an Inch take a mile, Brewing Company. If you give in here, you will license afull blown bar, night club. There will be no turning back. Never! As a matter of fact, the City can surely expect the operator to make a further request to remove the condition (New Condition No. 26) that prevents the exclusion of persons under the age of 21 years by way of the proposed changes to Condition No. 10 that will state the "operation of a bar Is permitted." Staff, innocently, has gone to great lengths In a subjective evaluation of the word or term "restaurant/brewpub" In an attempt to loosely define the word or term In a manner that creates an undisputable reason why the Newport Brewery may already be authorized to operate as a "bar ". The creation by Staff and the operator of a magic potion that allows the loose connection of food and alcohol service characteristics In combination as pre- authorization or authorization of a "bar" Is faulty and wrong. An examination of Staff's methodology leads one to understand the conclusion Is Illogical and speculative, at best. Staffs conclusion does not hold water and will cause Irreparable harm to the neighborhood. Do not be misled! The definition of the term "restaurant/brewpub" Is paramount in the operator's plan to defend its bar, night club operation and the operator's ability to continue and /or expand Its operation without criticism or control from the residents or the city. As policy makers, you need to intervene. There Is not an available definition for the word "restaurant/brewpub." In order to attempt to define the term It is necessary to travel down the following two roads. Conduct an analysis of the term using recognized principals within the English language and /or an evaluation of the spirit and Intent of the document that houses the term. Recognized principals of the English language would allow one to Identify characteristics of the word or term "restaurant/brewpub" by splitting the term Into dominant and serviant characteristics. The word "restaurant ", since It is placed first In the word or term, is classified as dominant. The slash mark (/) creates a relationship between the two words, however the word "brewpub" would be classified as serviant. The serviant word will always carry less weight. An examination of the separated words in the word or term may be helpful. It would be acceptable to split the term or word and look for separate definitions to look for assistance. The following are the most specific definitions: restaurant an establishment where meals are served to customers brewpub a combination brewery an_.drestaurant, beer Is_brewed_far consumptlon.on fdeptemises _andsomed_along_withtood it Is albunoteVY0,thy how the definniontisupplied b"t ry.com an or e a so use the principal of dominant and serviant relationships. There are additional definitions of the words brewpub, however, since they are separated Into two words they are far less pure. In this circumstance, the word or term "restaurant brewpub" would best describe a restaurant that primarily serves meals (dominant) to customers accompanied by premise brewed beverages (serviant). Next, one would wish to examine the spirit and Intent of the document that houses the word or term. This document would be the "Findings and Conditions for Approval Use Permit No. 3485 (Amended)" of September 13, 1999. It Is clear that the solrit and Intent of the document was to approve a restaurant and would characterize "restaurant/brewpub" In consistent terms with the writer's definition. It Is strongly described in Conditions No's. 9 & M From the document, Condition No. "9. The operation of the brewery operation and the service of alcoholic beverages shall be ancillary to the primary food service operation" and M "shall not be construed as the approval of a bar, cocktail lounge, or other use serving alcoholic beverages during hours not corresponding to regular meal service hours." It is also Important to further examine the spirit and Intent throughout the rest of the document. How does the language in the balance of the document help us understand the spirit and intent of the document? By way of example: The FINDINGS No. 2 reads "permits eating and drinking establishments." Eating first, drinking second. FINDINGS No. 5, bullet point 3; characterize the operation as a "restaurant business." FINDINGS b., bullet point 3, refers to the "alcohol license for a brewpub and the convenience of the public can be served by the sale of distilled spirits In a restaurant/brewpub setting." Here, a more complex term and more descriptive than brewpub. The addition of the "hard" alcohol was to augment the restaurant operation. Condition No. 15 uses the term "restaurant site" to describe the establishment. Condition No.16 uses the term "restaurant facility." Condition No. 17 reveals "restaurant business" as a reference. A more neutral term would have been used throughout the document such as "The establishment" which can be seen In Condition F. of the Standard City Requirements if the spirit and Intent were actually to be more neutral. However, the neutral terms are virtually absent In the document. This Is Important to understand the spirit and Intent. The specific wording and the terms present and not present in the document create overwhelming evidence to support a conclusion that the spirit and Intent of the document clearly describe dealings with a restaurant. It would not be sound to derive a conflicting conclusion regarding the spirit and Intent of the document. Both methods of evaluation demonstrate faulty conclusions by the Planning Commission and Staff. Perhaps Staff could demonstrate, by way of several other existing Newport Beach Use Permits that this language and interoretation Is regular and common Staff can not demonstrate this point because the evidence does not exist! Therefore, Staff's interpretation that the term "restaurant/brewpub" Implies that the City of- Newport Beach approved a kind of a "bar" Is nothing more_ than. illogicaLspeculation that- defies-acceptabl principals within the English language and the spirit and Intent of the document. In this circumstance, and most often, the words really do speak for themselves and do not require speculative Interpretation. So let's look at how the Staff Report and the operator are misleading. Condition No. 9, as currently written, Is clear and concise. It means that the establishment is a restaurant and shall maintain characteristics easily Identifiable as a restaurant. Condition No. 10 states "The approval of this use permit Is for a restaurant/brewpub and shall not be construed as the approval of a bar, cocktail lounge, or other use serving alcoholic beverages during hours not corresponding to regular meal service hours (food products sold or served Incidentally to the sale or service of alcoholic beverages shall not be deemed as constituting regular meal service) nor as the approval of a cabaret, nightclub, or other use with the principal purpose of providing live entertainment and /or dancing." The proposed changes to Condition No. 10 is a further license for a "bar" by way of the proposed wording changes; "The accessory operation of a bar is permitted.. " This change Is catastrophic and can not be permitted. A recent adjustment, by the operator, now makes a full kitchen open and dinner menu available until 1 AM on Friday and Saturday. The notion that keeping the restaurant's kitchen open and making food avallable until 1 AM transforms the "bar" into a "restaurant" which suddenly meets the Staffs III fated Interpretation of the standard of Condition No. 10 is utterly ridiculous. The food service after 10 PM is clearly Incidental. The incidental food service is in violation of the Use Permit. Keeping the kitchen open is a thinly veiled feature that fools no one and does not meet the criteria of the written words or the spirit and Intent of Condition No. 10. In fact, It Is Insulting to any reasonable mind. This logic Is as sound as an Imposed operational condition that a swim school offer swim lessons to fish! The lessons maybe available but there would be no demand. The swim lessons to fish would be classified as Incidental to the swim school! One could try to read Into the condition that the only difference between a "bar" and a "restaurant" Is the avallablllty of food service. Regular meal service hours are not defined by the avallablllri of food. This Interpretation Is a "reach" by the operator and Staff to meet Condition No. 10: It Is better described as a "climb" for the operator and Staff. Regular food service Is more reasonably Interpreted by "demand" or percentage ratio for food products and not by avallabll!ri! If there Is no demand, or minimal sales, the food service Is Incidental. No operator would keep an expensive kitchen open with a full staff to make available a complete dinner menu when there Is little or no demand, unless It was necessary to meet the conditions, or an Interpretation thereof, of a Use Permit to stay open and be a "bar" while selling very profitable alcoholic beverages. Offering a dinner menu, while selling 90% alcohol, does not meet a reasonable standard of a restaurant. It Is better described as a bar. It is also Important to note that the words In Condition No. 10 "(food products sold or served Incidentally to the sale or service of alcoholic beverages shall not be deemed as constituting regular meal service) are specifically designed to require the necessity of "demand" for food service by we of sales to maintain and distinguish the restaurant characteristic and to prevent the phony ploy of keeping the kitchen open by "avallablllri"of food service to circumvent the characterization of a "bar, night club." This is exactly what the Newport Beach, give an Inch take a mile, Brewing Company has been doing and continues to avoid the wording and the spirit and Intent of the Use Permit and thumb Its nose at the neighborhood and the City of Newport Beach. It Is In violation of the Use Permit, Insulting to the neighborhood and the City Council must correct the violation and restore even handed _compliance,,promptly_ The words In Condition No. 10 that are in "parenthesis O are designed for clarification. They are In eonclition No. 10 to pievent abuse. An avallaote en service coes not create or -s-a-tisfy the conditioned need for demand. There is no demand for food after 10 PM. There is no demand for food because after 10 PM Is not "regular meal service hours ". Everyone has already had dinner! Plain and simple. The food service Is Incidental. It is clear that after 10 PM the Newport Beach Brewing Company Is a full blown bar, night club! The establishment has admitted they sell 90% alcohol after 10PM. They admittedly, have 5 "bouncers ", check I.D. at the door and do not allow patrons that are under age 21. Are these facts characteristic of a restaurant or a bar? The standard should be: Does the establishment operate as a bar, night club or a restaurant? Period. If they operate as a "restaurant" they are within the Use Permit. If the operate as a "bar" they are not within their Use Permit. The establishment can not be convertible and choose to be one or the other, at will, depending upon opportunity. The establishment can not connect the two separate operations by simply making food available. If you were starting with a clean sheet of paper today, would you permit a "bar" operation at this location? The answer Is clearly, NO! So why give license to the bar through ambiguity? The inventive exercise of a cloudy "word blending" beginning with a "restaurant" mixed into a "restaurant/brewpub" and "poof" turning Into a "bar" is trickery. It is not what the operator represented in 1999, nor, what the City Council authorized, nor what the neighborhood should endure. Don't be fooled! Could anyone even Imagine that the City Council in 1999 may have intended to convey; Well, as long as the kitchen Is open with a full menu you can do whatever you want until 1 AM Sounds good to us. Let's vote. It Is unimaginable. Staff knows better and so does this Council! Condition No. 9 need not and must not be changed. Condition No. 10 should be clarified and tightened to represent the spirit and Intent of the Use Permit. The Newport Brewery should not be permitted, or In the least, appear to be permitted to operate as a "bar." Give an Inch take a mile. The Cannery Village Is a unique opportunity to foster mixed use characteristics In a seaside atmosphere. It Is a very small area with a bright futurel The Newport Brewery represents the past. Its business plan of over serving alcohol to kids may have been cool in the 70's. Yelling and screaming while urinating In the parking lot Is a hobby that long ago had Its day! To "rev up" this dinosaur will be a huge step backwards! The Newport Beach Brewing Company asked the City Council to be a restaurant that serves alcohol. They should be nothing more! So how do we accomplish this goal? Staff and the operator have offered very little In the way of solutions to the nuisance In the parking lot and the overall bar like characteristics. Counsel for the operator routinely threatens to sue if asked to yield on the tough questions. They refuse to curtail hours by closing at 11 PM like other restaurants and refuse to operate this business In a reasonable restaurant type setting. The character of the restaurant/brewpub is one of "Jeckel and Hyde." By day, for the most part, the operation has characteristics of a restaurant. on Thursday, Friday and Saturday nights and Sunday the operation Is obviously a "bar. The Newport Brewery has Intentionally painted Itself into an operation that appears to be a moving target that can not be easily regulated. However, the distinction that Is easy to understand is that at a "restaurant ", patrons are primarily seated and at _a "bar," patrons arg,primarily standing. The operation has previously submitted a floor plan. The facility also has limited restroom facilities that ape a cont, Ibuting factor to the constant urination in tne parking o and surrounding structures. By limiting the occupancy and requiring the Fire Department to enforce the patron load, the City could bring about a change In character and move this "bar" towards a 'restaurant." In the alternative or conjunctively, the City could require food service at a 50% ratio to alcohol sales from 10 PM to 1 AM. These concepts would be easy to regulate and the necessity for expensive enforcement measures and complicated conditions, that can never be enforced, would be eliminated. Asa matter of fact, per the directives of the California Coastal Commission and the Alcoholic Beverage Control, this Is precisely how the operation Is regulated during the daytime. Just last month , and after the Newport Brewery hearing, the Planning Commission Imposed, and the applicant agreed, to a condition that the "Yard house ", an establishment that plans to operate in Fashion Island, be held to a percentage ratio of alcohol to food sales each and every hour of the operation. The same condition can be, and should be, Imposed on the Newport Brewery. By limiting the alcohol sales as a percentage of the food sales and/or patron load it may be possible to actually dine In the " restaurant/brewpub" after dark. If regulating the Newport Brewery operation Is too difficult the City Council should simply close the restaurant/brewpub at 11 pm. The practical solutions are available and before you. Have the courage to demonstrate the leadership that the voting population of the City of Newport Beach believes you have! Sinc re BruceJ� ow AT &T Yahoo! Mail - bjlc(cr,sbcglobal.net Page 1 of 2 MAIL Print - Close Window Date: Wed, 25 Apr 2007 08:13:39 -0700 (PDT) From:. "Bruce j Low" <bjlc @sbtglobal.net> Subject: RE: Police activity at Newport Brewery To: "Johnson, Dale" <Dlohnson @nbpd.org> CC: .Jim Campbell" . .,......__. .., .us < Jcampbell @[Ity:newport- beach.ca.u5 >, "David Lepo" <tllepo @city . newport- bea[h.ca.us> Thank you very much for your explanation. I appreciate you taking your valuable time to assist me. Bruce Low "Johnson, Dale" <DJohnson @nbpd.org> wrote Mr. Low— Officer Hughes forwarded your email to me and asked me to look into the incident. The Police Department was called to the parking lot of the Newport Brewery by a passerby. He reported that a cab driver was involved in a dispute with 4 intoxicated subjects. The cab driver was refusing to drive them and they were yelling at him to get in the car and take them where they wanted to go. We dispatched several units due to the fact that there were 4 subjects in the cab. Once there, we discovered that the 4 subjects had been very rude to the driver, but had not violated any laws. We arranged for another cab to come and get them and they left without any further problem. As for the posting of the event on the website, I checked on 4 -24 -04 and found it listed on 4 -22 -07 as a "Disturbance" call in the 2900 block of Newport Blvd. at 12:57 pm. All of our activity is automatically posted to the website, but not always immediately. The delay can sometimes be 1 or 2 hours. We .have. no.ability -to- alter- or edit- the - information that is posted so please be assured that"the records of our your questions and concerns. Please feel free to call me if I can help further.. Dale Johnson, Lt. Patrol Division Watch Commander 949- 644 -3730 From: Bruce j Low [mailto:bjlc @sbcglobal.net] Sent: Sunday, April 22, 2007 5:51 PM To: Hughes, Todd; Johnson, Dale Cc: Campbell, James; Lepo, David; Bludau, Homer ; Mike Henn; Gardner, Nancy; Don Webb; Rosansky, Steven; Daigle, Leslie; Curry, Keith; Selich, Edward Subject: Police activity at Newport Brewery Todd Attached is a photo of police activity at the Newport Brewery on Sunday 4/22/07 in the afternoon. I am curious to know why an incident that involves 4 police units (3 Tahoes and 1 motor officer) is not reflected on the "calls for service" log of the NBPD website? As you may know, the neighborhood is disappointed with the Brewery's recent behavior, yet so many persons continue to ask if the police were called. We rely upon the record to document police activity. In this case there is no log entry that I can find that documents a serious event that involves four police units. Can you explain? http: / /us.f8l3. mail .yahoo.com /ymIShowLetter ?box= Sent &Msgld =4019_ 12226275_ 12277... 4/25/2007 AT &T Yahoo! Mail - bjlc@,sbcglobal.net Page 1 of 2 p14T YaLiooS Ma! Search: , _ awWeicome bjic @sbcglobal.ne... ,Mail Home I Tutorials I Help I �ry [$ign0ut My rtccpgntl M MAIL Mall Addresses Calendar Notepad N1aJ Fo1_tytpblie MY adUpgfadga Ciptlon;. I ! t}e7tzMa "ll, Inbox Draft Sent Bulk (3) Trash .._.._� prg-v_(ous I NSxt 1.8_a.ckSQtleSSe9ei d -Edit] T M y? °ru WN,'"Yv1t This message is not flagged. [ Flag Message Mark as Unread ] Printable View .� Date: Tue, 20 Mar 2007 12:00:56 0700 (PDT) (Empty) I From: "Bruce j Low" <bJlc @sbcglebal.net> pp� Add to Address Book Add Mobile Alert lr3 (Empty] Search Shortcuts �' -� My Photos f My Attachments Subject: Newport Beach Brewing Company To: "Jim Campbell' < Jcampbell @city.newport- beach.ca.us >, "David Lepo" <dlepo @city.newport beach.ca.us> "Mike Henn" <mhenn527 @hotmall.com>, "Don Webb" <don 2webb @earthlink.net >, CC: "Ed" <edsellch @adelphia.net>, "K Curry" <curryk@pfm.com>, parandigm @aol.com, "Leslie Daigle" <lesllejdaigle @aol.com >, "Nancy Gardner" <gardnemcy @aol.com> Jim and David, As you know, our group is-( the Other establishments have been successful and more profitable (i,e. The Cannery Restaurant for example) by altering their business plan! as it To that end, the Brewery will never be able to meet Condition "D" of the original Use Permit. The "nuisance" in the parking lot and the surrounding private and public areas is admittedly "uncontrollable." To have the PD, the city and the Brewery throw their hands up in frustration and relinquish responsibility without a solution is not acceptable. The result is detriment to the public's health, safety and welfare. If there is not an effective SOLUTION the only alternitive is to curtail or eliminate the use. The interests of the public outweigh the .interests of the Brewery. To dismiss this responsibility, Condition D and our rights to reasonable quiet enjoyment of our properties is not acceptable today, tomorrow or any time. A mitigating and only temporary measure must; at a minimum, include the following: 1. Close the back door at 9 PM (time certain). 2. Use the back door as a "fire exit" only after 9 PM. No taxi pick ups, no excuses. None, except a fire or emergency. 3. Include in the security plan to be designed that security must be stationed in the parking tot (not a sweep) and allow the residents to weigh in on the input of the security plan and have the City Council approve the security plan by way of public hearing. 4. Require a percentage (50°/x/50 %) of sales of food to alcohol each hour of the day. I again repeat that this is only a temporary measure and the Use Permit must be reviewed in October to hear public input and modify or revoke the Use Permit. This is much more than the Brewery deserves in light of the fact that they cannot control http: / /us. f813. mail. yahoo .com /ym /ShowLetter ?Msgld= 7256- 22082448 - 1120350- 923_14... 3/27/2007 AT &T Yahoo! Mail - bjlc(a,)sbcglobal.net City Council C/O Jim Campbell 5 -15 -07 Re: Newport Brewery meeting 5 -22 Page I of I UT61Dg ]NO Print -Close Window HTML EXPORT My wife and I are unfortunately out of town for the May 22, 2007 meeting concerning the Newport Beach Brewery.. As residents of the Cannery Lofts we have attended all the previous meetings concerning this issue. We can't believe that after our last meeting that the Brewery will not follow your decision to stop hard alcohol after 11 PM. They continue to demonstrate they are not a good neighbor. We still hear noise after midnight and even until 3 am on many nights. People continue to urinate, scream, fight, yell and disturb the neighborhood coming and going from The Brewery. Why is it that other establishments such as The Cannery, Abe, Blue Water and the new 508 grill operate under city guide lines and respect their neighbors? These establishments are setting the standard and helping to make The Cannery Village a great area. The Brewery has no interest in being a good neighbor. This has been proven by their actions. The council has been very fair with them and we believe you have tried to help them be a better establishment. The Brewery has no interest in working with the council or neighbors they want to just continue with their own agenda. We now believe the only acceptable solution is for them to shut down at 11 PM. Force them to be a great eating establishment and not a BAR which we all know is what they have become. Please help us to make "The Cannery Village" a great place for everyone to enjoy living, working and a great destination for everyone. A place Newport Beach can be proud of. We all know the peninsula has not had a great reputation for a long time. We don't want the Cannery Village to be where everyone thinks you come to just party and raise hell and go home. The Brewery has chosen not to follow the vision of what is happening in this area. They are being shortsighted and missing a great opportunity. Thank you John and Stephanie Faul http : / /us. f813.maii. yahoo.comly mIShowLetter? box= Inbox &Msg1d= 4220_65127792_8171... 5/15/2007 ') /A2 /O7 O�NgWPp9 Py ;= NEWPORT BEACH POLICE DEPARTMENT P.O. Box 7000, Newport Beach, CA 92658 - 7000. Vice and Intelligence Unit (949) 644 -3706 or (949) 644 -3709 Newport Beach Brewing Company 2920 Newport Blvd. Computer Aided Dispatch Events May 15, 2005 through April 27, 2007 Tyne of Call Number of Calls Patrol Checks (Dispatched) 2 Disturbances (415 PC) 7 Loud Music Calls 2 Fights (242 PC /415F) 4 Burglary (459 PC) 2 Drunk in Public (390) 5 Underage Drinkers 1 Medical Aid 4 Traffic Collision (w/ DUI) 2 Vandalism (594 PC) 2 Fake I.D. (529.5 PC) I Lost Property I Parking Lot Disturbances (Unknown if Public Lot or NBBC Parking Lot) 15 Patrol Checks (PC/BAR) - Officer Initiated 4 911 Hang up phone calls from NBBC 7 Total: 59 Between 5 -15 -05 and 4- 27 -07, there were 100 C.A.D. events under the address 2920 Newport Blvd (Newport Beach Brewing Company). After reviewing each of these 100 C.A.D. events, it has been determined that 41 of these events are not related to the Newport Beach Brewing Company. These unrelated calls included traffic stops, subject stops, drunks, disturbances, lost vehicles, etc. It should also be noted that we were unable to verify if any of the 15 parking lot disturbances are related to the Newport Beach Brewing Company: The Police Department also recognizes the probability that there are calls for service which have been attributed to other neighboring businesses; or addresses, that may have been appropriately attributed to the Newport Beach Brewing Company, Prepared by: Detective Dave Stark / V &I Unit Date: May 2, 2007 Kristen ]e Andros 411 2911 Street Newport Beach, California 92663 May 16, 2007 City of Newport Beach 3300 Newport Boulevard Newport beach, California 92663 Attn: City Council Members r2��0/07 -� /7 Cl N®PNQYP ®Rl Ss4c�° Nr AY1 s 2ooj Re: Newport Beach Brewing Company Use Permit hearing May 22, 2007 Dear Council Members, Unfortunately, I will be out of state_f_or the_NewporLBeach_Brewing - _ Company hearing s -ches doled _for_May_22r2007 -._P_lease- accept- this4etteir-as — my testimony. am a resident and property owner on 29th Street in the Cannery Village. I am continuously subjected to abusive behavior from the Brewery operation and also their patrons. I routinely observe persons urinating in the parking lot and surrounding properties. The out of control behavior from yelling and screaming into the early hours of the morning disrupts my sleep and affects my ability to function at work. I am unable to say anything to the drunken patrons for fear of confrontation and retaliation. I have called the Police Department on several occasions. When the Police arrive, which is usually 10 minutes until an hour later, the condition has disbursed. Calling the Police is not effective. I have had conversations with Lt. Craig Frizzell of the Newport Beach Police Department. I believe the Police Department has the best of intentions and my interests in mind, however, as Lt. Frizzel stated "the Police can not be everywhere in the City at the same time." Lt Frizzell ran a report for me of Police information which indicates the Police have responded to a "Call for Service" at the Newport Brewery at least 100 times in the last 24 months. The report is attached. In light of the endless objectionable behavior I observe, coupled with 100 calls for service I am convinced that the conditions at the Brewery are simply not fixable. I have come to the conclusion that the only way to get this situation under control is to close the Newport Beach Brewing Company at 11 PM. This would make the Brewery operation consistent with other "restaurants" in the Cannery Village like "Bluewater Grill' and "The Cannery Restaurant'. Should you have any additional questions, please do not hesitate to contact me. Sincerely, Kr i "te . ndros Apr 27 13:22 2007 Form: EHQ Requested By: NB/1197 At Position: REC EVENT HISTORY INQUIRY Event Number: NBO51350273 Date /Time: 15- May - 2005/22:37:12 Pri: 4 Type: ASSIST Case: Disposition: HAS Location: NEWPORT BREWERY @ 2920 Event Number: NB051420024 Pri: 2 MULTIPLE Disposition: RPT Location: NEWPORT BREWERY @ 2920 Event Number: N2051490188 Pri: 3 Disp Group: NEWPORT BLVD Date /Time: Type: 245J Disp Group: NEWPORT BLVD Date /Time: Type: 415390 DG ,NB 22- May - 2005/01:05:57 Case: DG ,NB 29 -May- 2005/17:09:03 Case: Disposition: 1022 Disp Group: DG Location: 2920 NEWPORT BLVD ,NB (NEWPORT BREWERY) Event Number: NS051550288 Date /Time: 04- Jun - 2005/22:41:35 Pri: 3 Type: 925V Case: NB 05005788 ^Dis os.tion-- 10 -15 - - -- - Dis - -- P p- - Group r DG ._LQc- at.2on_:— NEW- RO.RT— BREWERY c,2- 9- 2-0— N-EWPOR- T- B-L-VD ,NB ---- Event Number: NB051590196 Date /Time: 08- Jun - 2005/22:07:39 Pri: 5 Type: TS Case: Disposition: CITE Disp Group: DG Location: NEWPORT BREWERY @ 2920 NEWPORT BLVD ,NB Event Number: NB051690181 Date /Time: 18- Jun - 2005/15:51:29 Pri: 2 'Type: 597N Case: Disposition: UNF Disp Group: DG Location: NEWPORT BREWERY @ 2920 NEWPORT BLVD ,NB Event Number: NB051690241 Date /Time: 18- Jun - 2005/20:16:48 Pri: 2 Type: 911HP Case: Disposition: C4 Disp Group: DG Location: 2920 NEWPORT BLVD ,NB (NEWPORT BREWERY) Event Number: NBOS1690246 Date /Time: 18- Jun - 2005/20:42:33 Pri: 3 Type: HS Case: NB 05006324 Disposition: CITE Disp Group: DG Location: NEWPORT BREWERY @ 2920 NEWPORT BLVD ,NB Event Number: NBOS1760027 Date /Time: 25- Jun - 2005/01:41:38 Pri: 5 Type: S Case: Disposition: ASST Disp Group: DG Location: NEWPORT BREWERY @ 2920 NEWPORT BLVD ,NB Page 1 Apr 27 13:22 2007 Event Number: NB051760045 Pri: 4 05006569 Disposition: ASST Location: NEWPORT BREWERY Event Number: NBOS1830336 Pri: 5 Date /Time: 25- Jun - 2005/02:40:04 Type: 594R Case: NB Disp Group: DG @ 2920 NEWPORT BLVD ,NB Date /Time: 02- Jul - 2005/23:37;43 Type: BAR Case: Disposition: ASST Disp Group: DG Location: NEWPORT BREWERY @ 2920 NEWPORT BLVD ,NB Event Number: NB0519000'05 Date /Time: 09- Jul -20 05/00:11:38 Pri: 5 Type: C6R Case: Disposition: PC Disp Group: DG Location: NEWPORT BREWERY @ 2920 NEWPORT BLVD ,NB Event Number: NE051910163 Date, /Time: 10- Jul - 2005/15 :14:16 Pri: 2 Type: 902M Case: Disposition: PC Disp Group: DG Location: NEWPORT BREWERY @ 2920 NEWPORT BLVD ,NB Event Number: NB052100154 Date /'Time: 29 -Jul- 2005/15:16:38 Pri: 2 Type: 911H Case: Location: 2920 NEWPORT RL Event Number: NBO52110027 Pri: 3 Disposition: ADV Location: NEWPORT BREWERY Event Number: NB052230023 Pri: 5 0500870.6 Disposition: 1015 Location: NEWPORT BREWERY Event Number: NB052250015 Pri: 3 050.08806 Disposition: RPT Location: NEWPORT BREWERY Event Number: NBO52330010 Pri: 2 Date /Time: 30- Jul - 2005/02:39:24 Type: 415P Case: Disp Group: DG @ 2920 NEWPORT BLVD ,NB Date /Time: 11- Aug - 2005/02:06:49 Type: S$ Case: NB Disp Group: DG @ 2920 NEWPORT BLVD ,NB Date /Time: 13- Aug - 2005/01 :23:06 Type: 481J Case: NB Disp Group: DG @ 2920 NEWPORT BLVD ,NB Date /Time: 21- Aug - 2005/0 0:48:45 Type: '911H Case: Disposition: C4 Disp Group: DG Location: 2920 NEWPORT BLVD ,NB (NEWPORT BREWERY) Event Number: NB052370027 Date /Time: 25- Aug - 2005/06:33 -50 Pri: 2 Type: 904MSC Case: Disposition: ASST Disp Group: DG Location: NEWPORT BREWERY @ 2'920 NEWPORT BLVD ,NS Page 2 Apr 27 13:22 2007 Event Number: NB052370201 Pri: 3 Disposition: ADV Location: NEWPORT BREWERY @ 2920 Event Number: NBOS2420087 Pri: 5 Date /Time: Type: 415 Disp Group: NEWPORT BLVD Date /Time: Type: TS 25 -Aug- 2005/22 :15:39 Case: DG ,NB 30- Aug - 2005/12:19:33 Case: Disposition: ADV Disp Group: DG Location: NEWPORT BREWERY @ 2920 NEWPORT BLVD ,NB Event Number: NB052660218 Date /Time: 23 -Sep- 2005/23:17:23 Pri: 2 Type: 9110PN Case: Disposition: UNF Disp Group; DG Location: 2920 NEWPORT BLVD ,NB (NEWPORT BREWERY) Event Number: NB052670009 Date /Time: 24- Sep- 2005/00:31:14 Pri: 2 Type: 9110PN Case: Disposition: UNF Disp Group: DG Location: 2920 NEWPORT BLVD ,NB (NEWPORT BREWERY) Page 3 Event Number: NB052680197 Date /Time: 25- Sep - 2005/20:30:13 Pri: 4 Type: 242R Case: NB 05010423 ti.on:_�.0.1.5 -- -- -- Disp- Group: -DG— '- _Disposes Location: NEWP -ORT- BREWER- Y- @- 2- 9- 2- 0- N-- SwP6R� -BLVi N Event Number: N2052730220 Date /Time: 30- Sep - 2005/22:53:17 Pri: 3 Type: 594J Case: NB 05010558 Disposition: RPT Disp Group: DG Location: NEWPORT BREWERY @ 2920 NEWPORT BLVD ,NB Event Number: NBOS2740028 Date /Time: 01- Oct - 2005/01:25:51 Pri: 3 Type: 919 Case: Disposition: FI Location: NEWPORT BREWERY @ 2920 Event Number: NB052860186 Pri: 2 Disposition: UNF Location: 2920 NEWPORT BLVD ,NB Event Number: NBO52900082 Pri: 5 05011084 Disposition: 1015 Location: NEWPORT BREWERY @ 2920 Event Number: NB052930122 Pri: 5 Disp Group: DG NEWPORT BLVD ,NB Date /Time: 13- Oct - 2005/22:36:32 Type: 911H Case: Disp Group: DG (NEWPORT BREWERY) Date /Time: 17 -Oct- 2005/13:38:42 Type: V Case; NB Disp Group: DG NEWPORT BLVD ,NS Date /Time: 20- Oct - 2705/15:44:10 Type: TS Case: NB 05011184 Disposition: CITE Disp Group: DG Location: NEWPORT BREWERY @ 2920 NEWPORT BLVD ,NB Apr 27 13:22 2007 Event Number: NBOS3160201 Pri: 5 Disposition: CITE Location: NEWPORT BREWERY Event Number: NBO53270177 Pri: 5 05012364 Disposition: CITE Location: NEWPORT BREWERY Event Number: NE053310006 Pri: 2 Date /Time: 12- Nov - 2005/21:48 :53 Type: TS Case: Disp Group: DG @ 2920 NEWPORT BLVD ,NB Date /Time: 23- Nov - 2005/23:50:44 Type: SS Case: NB Disp Group: DG @ 2920 NEWPORT BLVD ,NB Date /Time: 27- Nov- 2005/00:40:29 Type: 911HP Case: Disposition: HAS Disp Group: DG Location: 2920 NEWPORT BLVD ,NB (NEWPORT BREWERY) Event Number: NB053530192 Date /Time: 19- Dec - 2005/22:59:18 Pri: 3 Type: 415 Case: Disposition: UTL Disp Group: DG Location: NEWPORT BREWERY @ 2920 NEWPORT BLVD ,NB Event Number: NBO60060199 Date /Time: 06- Jan - 2006/18:27 :55 Pri: 3 Type: 390 Case: Page 4 - -- Location: 2920 NEW P-ORT BLVD —,_NB— (NEWPORT — BREWER) Event Number: NB060060260 Date /Time: 06- Jan - 2006/23:29:01 Pri: 3 Type: 415 Case: Disposition: PC Disp Group: DG Location: 2920 NEWPORT BLVD ,NB (NEWPORT BREWERY) Event Number: NBO60140008 Date /Time: 14- Jan - 2006/00:23:17 Pri: 3 Type: 415 Case: Disposition: ADV Disp Group: DG Location: NEWPORT BREWERY @ 2920 NEWPORT BLVD ,NB Event Number: NB060210008 Date /Time: 21- Jan - 2006/00 :'52:39 Pri: 3 Type: 415P Case: Disposition: UNF Disp Group: DG Location: NEWPORT BREWERY @ 2920 NEWPORT BLVD ,NB Event Number: NB060270214 Date /Time: 27- Jan - 2006/23:28:00 Pri: 3 Type: 415 Case: Disposition: 919 Disp Group: DG Location: NEWPORT BREWERY @ 2920 NEWPORT BLVD ,NB Event Number: NB060340024 Date /Time: 03- Feb - 2006/02:11:10 Pri: 3 Type: 415 Case: Disposition: HAS Disp Group: DG Location: NEWPORT BREWERY @ 2920 NEWPORT BLVD ,NB Apr 27 13:22 2007 Event Number: NB060350015 Pri: 5 06001126 Disposition: 1015 Location: NEWPORT BREWERY Event Number: NB060350022 Pri: 2 Date /Time: 04- Feb - 2006/00:46:58 Type: C6R Case: NB Disp Group: DG @ 2920 NEWPORT BLVD ,NB Date /Time: 04- Feb - 2006/01:20:34 Type: 902M Case: Disposition: ASST Location: NEWPORT BREWERY @ 292.0 Event Number: NB060350134 Pri: 4 Disposition: HAS Location: NEWPORT BREWERY @ 2920 Event Number: NB060410259 Pri: 2 Disposition: UNF Location: NEWPORT BREWERY @ 2920 Event Number: N9060470028 Pri: 3 Disp Group: DG NEWPORT BLVD ,NB Date /Time: 04- Feb - 2006/14:46:10 Type: PC Case: Disp Group: DG NEWPORT BLVD ,NB Date /Time: 10- Feb - 2006/23:32:25 Type: FIGHT Case: Disp Group: DG NEWPORT BLVD ,NB Date /Time: 16- Feb - 2006/05:54:54 Type: 415 Case: Page 5 Disposa.tion_:- UNE_ -- - psp- Group- -'DG - - -- --- - - - - -- - - - Location: NE -W20rrr _ntzEWER- @- 29 -20- NEW - PORT- SL-VD —,NB -' Event Number: NBO60540184 Date/Time: 23- Feb - 2006/22:27:04 Pri: 5 Type: BAR Case: Disposition: ASST Location: NEWPORT BREWERY @ 2920 Event Number: NE060540193 Pri: 4 Disposition: ASST Location: NEWPORT BREWERY @ 2920 Event Number: NB060560163 Psi: 3 Disposition: ASST Location: NEWPORT BREWERY @ 2920 Event Number: NB060590155 Pri: 3 Disposition: UTL Location: NEWPORT BREWERY @ 2920 Event Number: NBO60630002 Pri: 5 Disp Group: 'DG NEWPORT BLVD ,NB Date /Time: 23- Feb - 2006/22:43:38 Type: ASSIST Case: Disp Group: DG NEWPORT BLVD ,NB Date /Time: 25- Feb - 2006/19:17:52 Type: 390 Case: Disp Group: DG NEWPORT BLVD ,NB Date /Time: 28- Feb - 2006/19:33:45 Type: 415A Case: Disp Group: DG NEWPORT BLVD ,NB Dare /Time: 04- Mar - 2006/00:02:27 Type: BAR Case: Disposition: PC Disp Group: DG Location: NEWPORT BREWERY @ 2920 NEWPORT BLVD ,NB Apr 27 13:22 2007 Event Number: NB06064003.7 Pri: 4 Disposition: PC Location: NEWPORT BREWERY @ 2920 Event Number: NB060760073 Pri: 4 Date /Time Type: MCVIOL Disp Group: NEWPORT BLV Date /Time Type: PC 05- Mar - 2006/0,3:05:12 Case: DG D , NB 17- Mar - 2006/11:51:26 Case: Disposition: HAS Disp Group: DG Location: NEWPORT BREWERY @ 2920 NEWPORT BLVD ,NB Event Number: NB0608302S2 Date /Time: 24 -Mar- 2006/22:47:53 Pri: 2 Type: 911HP Case: Disposition: HAS Disp Group: DG Location: 2920 NEWPORT BLVD , -NB (NEWPORT BREWERY) Event Number: NB060980005 Date /Time: 08- Apr -2 006/00:11:16 Pri: 5 Type: V Case: NB 06003222 Disposition: 1015 Disp Group: DG Location: NEWPORT BREWERY @ 2920 NEWPORT BLVD ,NB Event Number: N9061050243 Date /Time: 15- Apr- 2006/22 :12:17 Pri: 5 Type: SS Case: Dis osition: CITE Di.sp_Group - --- DG Location: NEWPORT BREWERY @ 292.0 — NEWPORT BLVD —,_N Event Number: NE061130017 Date /Time: 23- Apr - 2006/01:13:52 Pri: 3 Type: 1015 Case: NB 06003769' Disposition: 1015 Disp Group: DG Location: NEWPORT BREWERY @ 2920 NEWPORT BLVD ,NB Event Number: N9061190034 Date /Time: 29- Apr - 2006/03:08:54 Pri: 3 Type: 415A Case: Disposition: UNF Disp Group: DG Location: NEWPORT BREWERY @ 2920 NEWPORT BLVD ,NB Event Number: NB061190183 Date /Time: 29- Apr - 2006/18:54:44 Pri: 2 Type: 502 Case: Disposition: UTL Disp Group: DG Location: NEWPORT BREWERY @ 2920 NEWPORT BLVD ,NB Event Number: NBO61190188 Date /Time: 29- Apr -2 006/19:20:38' Pri: 3 Type: HS Case: Disposition: UTL Location: NEWPORT Event Number: NBO Pri: E Disposition: GOA Location: NEWPORT Disp Group: DG BREWERY @ 2920 NEWPORT BLVD ,NB 51240248 _ Date /Time: 04- May - 2006/23:05:59 Type: 415* Case: Disp Group: DG BREWERY @ 2920 NEWPORT BLVD ,NB Page 6 Apr 27 13:22 2007 Event Number: NB061260211 Pri: 2 Disposition: UTL Location: NEWPORT BREWERY @ 2920 Event Number: NB061310229 Pri: 5 Date /Time Type: 502 Disp Group: NEWPORT BLV Date /Time Type: S 06- May - 2006/20:37;53 Case: DG D , NB 11- May - 2006/23:33:18 Case: Disposition: CITE Disp Group: DG Location: NEWPORT BREWERY @ 2920 NEWPORT BLVD ,NB Event Number: NB061350184 Date /Time: 15- May - 2006/20:27:09 Pri: 5 Type: V Case: Disposition: ADV Disp Group: DG Location: 2920 NEWPORT BLVD ,NB (NEWPORT BREWERY) Event Number: NB061670045 Date /Time: 16- Sun- 2006/06:17:10 Pri: 3 Type: 415 Case: Disposition: GOA Disp Group: DG Location: NEWPORT BREWERY @ 2920 NEWPORT BLVD ,NB Page 7 Event Number: NB061730025 Date /Time: 22- Jun - 2006/02:08:41 Pri; E 'Type: 415* Case: NB 06005975 Disposition: 1015 Location: NEWPORT BREWERY @._2.9:2n rEXPO.R-T — &LVD ,N$ Event Number: NBO61820016 Date /Time: 01 -Jul- 2006/01:01:08 Pri: 3 Type: 483J Case: NB 06006333 Disposition: RPT Disp Group: DG Location: NEWPORT BREWERY @ 2920 NEWPORT BLVD ;NB Event Number: NB061830016 Date /Time: 02- Jul - 2006/00:44:55 Pri: 2 Type: 415F Case: NB 06006374 Disposition: 1015 Disp Group: DG Location: NEWPORT BREWERY @ 2920 NEWPORT BLVD ,NB Event Number: NB061900272 Date /Time: 09- Jul - 2006/20:28:44 Pri: 3 Type: 415390 Case: Disposition: PC Location: NEWPORT BREWERY @ 2920 Event Number: NB061970009 Pri: 3 06007119 Disposition: 1015 Location: NEWPORT BREWERY @ 2920 Event Number: NB062020309 Pri: 5 Disp Group: DG NEWPORT BLVD ,NB Date /Time: 16- Jul - 2006/00:41:20 Type: 1015 Case: NB Disp Group: DG NEWPORT BLVD ,NB Date /Time.: 21- Jul - 2006/23:26:56 Type: SS Case: Disposition: OTH Disp Group: DG Location: NEWPORT BREWERY @ 2920 NEWPORT BLVD ,NB Apr 27 13:22 2007 Event Number Pri: 2 06007773 Disposition: Location: NE' Event Number Pri: 4 N3062110052 Date /Time Type: 459N 1015 Disp Group: 4PORT BREWERY @ 2920 NEWPORT BLV NB062310020 Date /Time Type: 415M 30- Jul - 2006/02:39:51 Case: NB DG D ,NB 19- Aug - 2006/00:58:29 Case: Disposition: ADV Disp Group: DG Location: NEWPORT BREWERY @ 2920 NEWPORT BLVD ,NB Event Number: NB062380263 Date /Time: 26- Aug - 2006/22:01:10 Pri:. r � Type: V Case: Disposition: CITE Disp Group: DG Location: NEWPORT BREWERY @ 2920 NEWPORT BLVD ,NB Event Number: N9062550023 Date /Time: 12 -Sep- 2006/03:36:28 Pri: 3 Type: 415 Case: Disposition: ASST Disp Group: DG Location: NEWPORT BREWERY @ 2920 NEWPORT BLVD ,NB Event Number: N2062580258 Date /Time: 15- Sep - 2006/22:15:28 Pri: 3 Type: 415 Case: Disposition: UNF Disp Group: DG Location: NEWPORT BREWERY @ 2920 NEWPORT BLVD ,NB Event Number: NB062 -5- 9_0,2.65_— Da.te./T- me- : - - -1 S6- ep - 2.006/22- Pri: 2 — TYPE —2427 Case Disposition: ASST Disp Group: DG Location: NEWPORT BREWERY @ 2920 NEWPORT BLVD ,NB Event Number: NB06286.0147 Date /Time: 13- Oct - 2006/16:06:22 Pri: 4 Type: 928LST Case: NB 06010634 Disposition: RPT Disp Group: DG Location: 2920 NEWPORT BLVD ,'NB (NEWPORT BREWERY) Event Number: N9062940006 Date /Time: 21- Oct - 2006/00:23:38 Pri: 4 Type: ASSIST Case: Disposition: ASST Disp Group: DG Location: NEWPORT BREWERY @ 2920 NEWPORT BLVD ,NB Event Number: NB063030099 Date /Time: 30 -Oct- 2006/76:20:01 Pri: 2 Type: 911H Case: Disposition: 1022 Disp Group: DG Location: 2920 NEWPORT BLVD ##UPPR ,NB (NEWPORT BREWERY) Event Numbe:.: NBO63290068 Date /Time: 25- Nov- 2006/09:27:38 Pri: 4 Type: INFO Case: Disposition: PC Disp Group: DG Location: NEWPORT BREWERY @ 2920 NEWPORT BLVD ,NB Apr 27 13 :22 2007 Event Number: N8063300018 Date /Time: 26- Nov - 2006/01:23:41 Pri: 3 Type: 390 Case: Disposition: GOA Disp Group: DG Location: NEWPORT BREWERY @ 2920 NEWPORT BLVD ,NB Event Number: N3063370134 Date /Time: 03- Dec - 2006/15:11:47 Pri: 4 Type: 503R Case: Disposition: 1022 Disp Group: DG Location: NEWPORT BREWERY @ 2920 NEWPORT BLVD ,NB Event Number: NB063400197 Date /Time: 06- Dec - 2006/21:33:41 Pri: 2 Type: 242J Case: Disposition: FI Disp Group: DG Location: NEWPORT BREWERY @ 2920 NEWPORT BLVD ,NB Event Number: N3070030084 Date /Time: 03- Jan - 2007/12:16:26 Pri: 2 Type: 929 Case: Disposition: ADV Disp Group: DG Location: NEWPORT BREWERY @ 292.0 NEWPORT BLVD ,NB Event Number: NB070060013 Date /Time: 06- Jan - 2007/00:39:11 Pri: 3 Type: 415 Case: Dispostion:_UNF --- - Event Number: N2070070010 Pri: 4 07000213 Disposition: RPT Location: NEWPORT BREWERY Event Number: NB070150205 Pri: 5 Date /Time: 07- Jan - 2007/00:30:54 Type: 242R Case: NB Disp Group: DG @ 2920 NEWPORT BLVD ,NB Date /Time: 15- Jan- 2007/21:45:56 Type: V Case: Disposition: ADV Disp Group: DG Location: NEWPORT BREWERY @ 2920 NEWPORT BLVD ,NB Event Number: N3070210180 Date /Time: 2`1- Jan - 2007/1'8:43:43 Pri: 2 Type: 902M Case: Disposition: HAS Location: NEWPORT BREWERY Event Number: NB070210194 Pri: 2 07000718 Disposition: 1015 Location: NEWPORT BREWERY Evc-nt Number: NB070210199 Pri: 3 Disp Group: DG @ 2920 NEWPORT BLVD ,NB' Date /Time: 21- Jan - 2007/19:36:01 Type: 415F Case: NB Disp Group: DG @ 2920 NEWPORT BLVD ,NB Date /Time: 21- Jan - 2007/20:09:30 Type: 390 Case: Disposition: GOA Disp Group: DG Location: NEWPORT BREWERY @ 2920 NEWPORT BLVD ,NB Page 9 Apr 27 13:22 2007 Event Number: N9070230108 Date /Time: 23- Jan - 2007/74:36:04 Pri: 4 Type: 928LST Case: NB 07000774 Disposition: RPT Disp Group: DG Location: 2920 NEWPORT BLVD ,NB (NEWPORT BREWERY) Event Number: N9070S50030 Date /Time: 24- Feb - 2007/01:49:51 Pri: 2 Type: 902M Case: Disposition: ASST Disp Group: DG Location: NEWPORT BREWERY @ 2920 NEWPORT BLVD ;NB Event Number: NB070690300 Date /Time: 10- Mar - 2007/23:24:44 Pri; 3 Type: 415390 Case: Disposition: PC Disp Group: DG Location: NEWPORT BREWERY @ 29210 NEWPORT BLVD ,NB Event Number: NB070760310 Date /Time: 17- Mar - 2007/22:28:48 Pri: 3 Type: 415P Case: Disposition: UNF Disp Group: DG Location: NEWPORT BREWERY @ 2920 NEWPORT BLVD ,NB Event Number: NB070770132 Date /Time: 18 -Mar- 2007/13:33:10 Pri: 4 Type: PC Case:. Disposition: PC__ ----- D- i-sp- G-roup-: DG '- Location:- NEWPORT BREWERY x_2:92:0 NEWPORBDVI? N$ — Evennt Number: 1,413070790102 Date /Time: 20- Mar - 2007/13 Pri: 4 Type: PC Case: Ci/l Ml Disposition: PC Disp Group: DG Location: NEWPORT BREWERY @ 2920 NEWPORT BLVD ,NB Event Number: NB070800244 Date /Time: 21- Mar - 2007/23:36:35 Pri: 4 Type: PC Case: Disposition: PC Disp Group: DG Location: NEWPORT BREWERY @ 2920 NEWPORT BLVD ,NB Event Number: NB070870111 Date /Time: 28- Mar - 2007/11:53:38 Pri: 2 Type: 911H Case: Disposition: 1022 Disp Group: DG Location: 2920 NEWPORT BLVD 4UPPR ,NB (NEWPORT BREWERY) Event Number: NB071090224 Date /Time: 19- Apr - 2007/23:00 :44 Pri; 4 Type: 415T Case: Disposition: GOA Disp Group; DG Location: NEWPORT BREWERY @ 2920 NEWPORT BLVD ,NB Event Number: NBO71100257 Date /Time: 20- Apr - 2007/23:04:54 Pri: 3 Type; 390 Case: Disposition: GOA Disp Group: DG Location: NEWPORT BREWERY @ 2920 NEWPORT BLVD ,NB Page MSN Hottal l - Message Page I of I • MSN Home I My MSN Hotmail I Shopping I Money I People & Chat I i4cb S_ar_�. IGoI sUnioe. ERILK C F,xperian 351 3" 382 Click Here to See Yours! prune rrat0ers.torrl LM I M Hotmail= Today Mail I Calendar I Contacts Options I Help mhenn5279hotmail. com Free Newsletters Reply 1 %'4 Reply All I C17 Forward I X Delete I LA Junk I S Put in Folder . Print View jU Save Address From : Bruce j Low <bjlc @sbcglobal.net> J 1 15, 1 X I ti�2 Inbox Sent : Monday, April 9, 2007 11:23 AM 30 ar W. IS `fear To: Jim Campbell < jampbell @clty.newport- beadi.ra.us> Fixed Fixed Mike Henn <mhenn527 @hotmail.com>, Don Webb <don2webb @earthlink. net>, Ed <edselich@adelphia.net>, K Curry CC : <curryk @pfm.com>, parandigm @aol.com, Leslie Daigle 7 -Year ARM 5-Year ARM <lesliejdaigle @aol.com >, Nancy Gardner <gardnemey @aol.com>, David Lepo < dlepo @city.newport- beach.ca.us>, Hamer Bludau <hbludau@city.newport- beach.ca.us>, Aaron Harp <aharp @clty.newport- beach.ca.us> He Subject: Update on Newport Brewery Interest Only Improvement Jim e 4} The update on the Brewery is so: Home Refinance with Equity Ce— sF aut Last Friday and Saturday my wife and I observed that the rear door of the Brewery, near our residences, was the only entrance and exit for the Brewery until dosing time or 1 AM. We did see some security in the parking lot, however, it was occasional. The idea of moving the parry to the front door at 9 PM or when a line forms was not present. The neighborhood is disappointed at the defiant regressive characteristics of the Brewery and find the behavior very $123,99 5 149 79 ? contradictory to the "good neighbor" representations the operator has made to the Planning Commission and City Loan for Under Loan frx under Council. $412111onth $494JMOnth We understand the effective date of the new conditions is not "technically" in force until the resolution Is approved by the Council but we have hoped that the Brewery would be respectful of the City Council and the neighborhood. That did not happen and I guess 1 am not really surprised. Declining to cooperate with the voluntary measures to soften $174,675 $201,17 9 the blow to the neighborhood seems intentional and punitive. Loan for Under Loan for Under We remain hopeful that the city will be successful in enforcing the will of the City Council. $579111onth $6641MonLh Thanks, Jim. Find the Lowest Mortgage Rate for Bruce Low nl k9 143p I .9 4 , 1 X I c� Inbox CaO ` 1 Click for more info Kate Yfarketplace Get the latest updates from MSN MSN Home I My MSN I Hotmail I Search I Shopping I Money I People & Chat Feedback i Help 2007 Microsoft TERMS OF USE Advertise TRUSie Approved Privacy Statement GeWetWise Anti -Spam Policy http : //by120fd.bay120.hotmail.msn. comlegi- bin / getmsg ?msg= E2D52F29- A75D- 43A8 -BB I... 4/9/2007 0 .Authorized to Publish Advertisements of all kinds including public notices by Decree of the Superior Court of Orange County, California. Number A -6214. September 29, 1961. and A -24831 June 11, 1963. PROOF OF PUBLICATION STATE OF CALIFORNIA) ) ss. COUNTY OF ORANGE ) I am a Citizen of the United States and a resident of the County aforesaid; I am over the age of eighteen years, and not a party to or interested in the below entitled matter. I am a principal clerk of the NEWPORT BEACH - COSTA MESA DAILY PILOT, a newspaper of general circulation, printed and published in the City of Costa Mesa, County of Orange, State of California, and that attached Notice is a true and complete copy as was printed and published on the following dates: June 30, 2007 I declare, under penalty of perjury, that the foregoing is true and correct. Executed on July 9, 2007 at Costa Mesa, California. Signat e 0 APUBU( HEARING OFTHE REC IEVED CITY COUNCIL ARISING FROM AN APPFAI OF THE PUNNING COMMISSIONS DE(ISIONTOMODIFYAND 'n% nN I I Illy % 12 ADD CONDITIONS OF APPROVAL FOR USE PERMIT NO. 3485 ON JANUARY 4,2007 Newport Beach Brewing Company NOTICE IS HEREBY GIVEN that the Newport Beach Planning Director has determined that there are reasonable grounds to revoke or modify and /or add con- ditions of approval of Use Permit No. 3485 (PA2006 -177). This de- termination was made pursuant to Section 20.96.040 of the New- port Beach Municipal Code and it is based upon potential viola tions of the conditions approval. potential vio lalions of the oper- ational character ap proved by the Use Permit and nuisance complaints received from neighbors of the business. NOTICE IS HEREBY GIVEN that the City Council for the City of Newport Beach will hold court. you may be a de novo public hearing limited to raising only for the purpose of re- those issues you or viewing Use Permit No. someone else raised at 3485 and the potential the public hearing (de- revocation of Use Per scribed in this notice) unit 3485 or modifica. or in written corre lion of and /or addition spondence delivered to to the conditions of ap. the City, at, or prior to, V I of Use Permit the public hearing, For 5. The hearing will information call (949) be its novo public hear - 644.3232. Ing and stems from an LaVonne Harkless. appeal filed by the Can- City Clerk, nery Village Concerned City of Newport Beach which appealed the Jan- Published Newport uary 4, 2007 decision of Beach /Costa Mesa Daily the Planning Commis- Pilot June 30, 2007 sign to add to and Sa764 modify the conditions of approval of Use Permit No. 3485. The Newport Beach Brewing Com- pany is located at the southeast corner of the intersection of Newport Boulevard and 30th Street at 2920 Newport Boulevard in the Can- nery Village area. NOTICE IS HEREBY GIVEN that the review of this Use Permit and potential actions relate thereto are not defined as a "project" pursuant to the California Envi- ronmental Quality Act, and therefore actions taken are not subject to environmental review. NOTICE IS HEREBY FURTHER GIVEN that said public hearing will be held on July 10, 2007, at the hour of 7:00 P.M. in the City Council Chambers (Building A) at 3300 Newport Boulevard, Newport Beach, Califor- nia, at which time and place any and all per- sons interested in the matter may appear and be heard. If you chal- lenge this project In a • PUBLIC NOTICE NOTICE OF INTENT TO REVOKE OR MODIFY AND /OR ADD CONDITIONS OF APPROVAL OF USE PERMIT NO. 3485 (PA2006 -177) AT A PUBLIC HEARING OF THE CITY COUNCIL ARISING FROM AN APPEAL OF THE PLANNING COMMISSIONS DECISION TO MODIFY AND ADD CONDITIONS OF APPROVAL FOR USE PERMIT NO. 3485 ON JANUARY 4, 2007 Newport Beach Brewing Company NOTICE IS HEREBY GIVEN that the Newport Beach Planning Director has determined that there are reasonable grounds to revoke or modify and /or add conditions of approval of Use Permit No. 3485 (PA2006 -177). This determination was made pursuant to Section 20.96.040 of the Newport Beach Municipal Code and it is based upon potential violations of the conditions approval, potential violations of the operational character approved by the Use Permit and nuisance complaints received from neighbors of the business. NOTICE IS HEREBY GIVEN that the City Council for the City of Newport Beach will hold a de novo public hearing for the purpose of reviewing Use Permit No. 3485 and the potential revocation of Use Permit 3485 or modification of and/or addition to the conditions of approval of Use Permit 3485. The hearing will be de novo public hearing and stems from an appeal filed by the Cannery Village Concerned which appealed the January 4, 2007 decision of the Planning Commission to add to and modify the conditions of approval of Use Permit No. 3485. The Newport Beach Brewing Company is located at the southeast corner of the intersection of Newport Boulevard and 30"' Street at 2920 Newport Boulevard in the Cannery Village area. NOTICE IS HEREBY GIVEN that the review of this Use Permit and potential actions relate thereto are not defined as a "project' pursuant to the California Environmental Quality Act, and therefore actions taken are not subject to environmental review. NOTICE IS HEREBY FURTHER GIVEN that said public hearing will be held on July 10, 2007, at the hour of 7:00 p.m. in the City Council Chambers (Building A) at 3300 Newport Boulevard, Newport Beach, California, at which time and place any and all persons interested in the matter may appear and be heard. If you challenge this project in court, you may be limited to raising only those issues you or someone else raised at the public hearing (described in this notice) or in written correspondence delivered to the City, at, or prior to, the public hearing. For information call (949) 644 -3232. j ..+ h �l X2; LaVonne Harkless,City Clerk, City of Newport Beach 6 07 w • PUBLIC NOTICE NOTICE OF INTENT TO REVOKE OR MODIFY AND /OR ADD CONDITIONS OF APPROVAL OF USE PERMIT NO. 3485 (PA2006 -177) AT A PUBLIC HEARING OF THE CITY COUNCIL ARISING FROM AN APPEAL OF THE PLANNING COMMISSIONS DECISION TO MODIFY AND ADD CONDITIONS OF APPROVAL FOR USE PERMIT NO. 3485 ON JANUARY 4, 2007 Newport Beach Brewing Company NOTICE IS HEREBY GIVEN that the Newport Beach Planning Director has determined that there are reasonable grounds to revoke or modify and /or add conditions of approval of Use Permit No. 3485 (PA2006 -177). This determination was made pursuant to Section 20.96.040 of the Newport Beach Municipal Code and it is based upon potential violations of the conditions approval, potential violations of the operational character approved by the Use Permit and nuisance complaints received from neighbors of the business. NOTICE IS HEREBY GIVEN that the City Council for the City of Newport Beach will hold a de novo public hearing for the purpose of reviewing Use Permit No. 3485 and the potential revocation of Use Permit 3485 or modification of and /or addition to the conditions of approval of Use Permit 3485. The hearing will be de novo public hearing and stems from an appeal filed by the Cannery Village Concerned which appealed the January 4, 2007 decision of the Planning Commission to add to and modify the conditions of approval of Use Permit No. 3485. The Newport Beach Brewing Company is located at the southeast comer of the intersection of Newport Boulevard and 30"' Street at 2920 Newport Boulevard in the Cannery Village area. NOTICE IS HEREBY GIVEN that the review of this Use Permit and potential actions relate thereto are not defined as a "project" pursuant to the California Environmental Quality Act, and therefore actions taken are not subject to environmental review. NOTICE IS HEREBY FURTHER GIVEN that said public hearing will be held on July 10, 2007, at the hour of 7:00 p.m. in the City Council Chambers (Building A) at 3300 Newport Boulevard, Newport Beach, Califomia, at which time and place any and all persons interested in the matter may appear and be heard. If you challenge this project in court, you may be limited to raising only those issues you or someone else raised at the public hearing (described in this notice) or in written correspondence delivered to the City, at, or prior to, the public hearing. For information call (949) 6443232. LaVonne Harkless,City Clerk, City of Newport Beach Jam and Smudge Free Printing www.averycom Use Avery® TEMPLATE 51600 I [a 1- 800- GO -AVE6 MICHAEL J JR BURNS FRANCES A BURY 216 -1/2 30TH ST 106 VIA UNDINE NEWPORT BEACH, CA 92663 NEWPORT BEACH, CA 92663 MICHAEL T & ROSEMARY K CARSON MERIAM CASE 3424 VIA OPORTO #204 423 31ST ST NEWPORT BEACH, CA 92663 NEWPORT BEACH. 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