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HomeMy WebLinkAbout20 - 3-Thirty-3 Waterfront AppealQ��WP�RT = CITY OF NEWPORT BEAD; ``"oar'' City Council Staff Report Agenda Item No. 20 June 28. 2011 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Community Development Department Kimberly Brandt, Director 949 -644 -3226, kbrandt(a newportbeachca.gov PREPARED BY: Janet Johnson Brown, Associate Planner APPROVED:��' TITLE: 3- Thirty -3 Waterfront Restaurant Appeal (PA2011 -041) 333 Bayside Drive Conditional Use Permit No. UP2011 -007 ABSTRACT: An appeal of the Planning Commission's denial of an application for a new Conditional Use Permit requesting to increase the hours of operation for an existing outdoor dining patio from 9:00 a.m. to 9:30 p.m. daily to 9:00 a.m. to 1:00 a.m. daily. No other changes to the existing restaurant operations are proposed or requested. RECOMMENDATION: 1. Conduct a public hearing; and 2. Uphold or reverse the decision of the Planning Commission and adopt Resolution No. _ (Attachment A) for Conditional Use Permit No. UP 2011 -007. ^2011 -80 FUNDING REQUIREMENTS: There is no fiscal impact related to this item. 1 2 3- Thirty -3 Waterfront Restaurant Appeal Conditional Use Permit No. UP2011 -007 June 28, 2011 Page 2 VICINITY MAP GENERAL PLAN ZONING o� ROW cons *„wr¢ d 5 CM 0.3 FAR CG 0.3 FAR e e p Ode >» i4 'oU7 f �~O$ ' `nr RS -D . TS LOCATION ON -SITE NORTH SOUTH EAST WEST F PC1 e MWyo� eu>er>.m� u, GO.3FAR WATER � $ eu as 9i N Po 9>�N UO.Iw .Op Hf YNU�191E \v � / 7Z. si> GENERAL PLAN ZONING Recreational and Marine Commercial Recreational and Commercial (CM) Marine (CM) Recreational and Marine Commercial (CM) Single -Unit Residential Detached (RS -D) General Commercial (CG) Recreational and Marine Commercial (CM) Bayside Village Boat Launch & Storage Planned Community (PC9) Single -Unit Residential (R -1) Commercial General (CG) Commercial Recreational and Marine (CM) CURRENT USE Restaurant and Office Developments Boat Storage and Mobile Home Park (across East Coast Highway) Linda Isle Residential Neighborhood Service Station and Retail Center Sol Cocina Restaurant, Yacht Brokerage Office Building and Commercial Parking Lot 3 11 3- Thirty -3 Waterfront Restaurant Appeal Conditional Use Permit No. UP2011 -007 June 28, 2011 Page 3 DISCUSSION: Project Setting The existing restaurant is located on the second floor of a two -story building at the southwest corner of Bayside Drive and East Coast Highway. The first floor of the building is occupied by office uses. The surrounding land uses include a restaurant (Sol Cocina), a yacht brokerage office building, and large commercial parking lot to the west. To the southeast are office uses, and to the east across Bayside Drive are a Chevron service station and shopping center. The Linda Isle single - family residential neighborhood is located to the south of the project site. Across East Coast Highway to the north are a boat storage facility and a mobile home park. Boat docks maintained by the Balboa Marina are located on the channel in front of the restaurant and to the west of the restaurant site. Proiect Description The applicant requests to extend the hours of operation for an existing outdoor dining patio from 9:00 a.m. to 9:30 p.m. daily to 9:00 a.m. to 1:00 a.m. daily. No other changes to the existing restaurant operations are requested or proposed by the applicant. The hours of operation of the interior portion of the restaurant are 9:00 a.m. to 2:00 a.m. daily. The applicant intends to continue operating the existing restaurant in a manner consistent with the previous conditions of approval granted by Use Permit No. 3325 (amended) and Accessory Outdoor Dining Permit No. 2007 -001. Please refer to Attachment B for a complete copy of the Planning Commission staff report, which includes copies of Use Permit No. 3325 (amended) and Accessory Outdoor Dining Permit No. 2007 -001 (Attachment No. PC 2 of the report). As a separate attachment to this report, please find copies of the Planning Commission minutes dated June 7 and June 21, 2007, related to the public hearing conducted for Accessory Outdoor Dining Permit No. 2007 -001 (Attachment C). Planning Commission Hearing and Action The Planning Commission conducted a public hearing and reviewed the applicant's request on May 19, 2011. The Planning Commission received testimony from the applicant, and seven members of the public. All but one of the members of the public spoke in opposition of the project. The Planning Commission meeting minutes are attached as Attachment D. Staff reported to the Planning Commission, that if approved, the new Conditional Use Permit (CUP) would replace the existing use permit and accessory outdoor dining permit. The new CUP would provide new conditions related to the overall operations of the existing restaurant, including the requirement that the applicant obtain approval of an Operator License issued by the Chief of Police. Staff supported approval of the applicant's request because further controls would be placed on the restaurant J 3- Thirty -3 Waterfront Restaurant Appeal Conditional Use Permit No. UP2011 -007 June 28, 2011 Page 4 operations over and above the conditions of approval of the new Conditional Use Permit with the requirement of an Operator License. Staff's support of the applicant's request was also based on input received during meetings with staff from the Police Department, Code Enforcement and Harbor Resources Divisions. Input provided by the Police Department, and Code Enforcement staff indicated that the number of complaints related to noise and disturbances emanating from the restaurant had declined. The Harbor Resources Division reported that in February 2011, the Harbor Commission approved the relocation of temporary guest slips in response to noise complaints from the public and nearby residents. The temporary guest slips are scheduled to be moved by mid - summer. Based on this input, it appeared that corrective measures had been taken to control objectionable activity at the site, and the applicant was complying with the existing conditions of approval. The Police Department reported that they had conducted several investigations at the site during various hours, and occasionally in an undercover capacity, to observe activities in the restaurant. They also interviewed the complaining parties, and the applicant. The Police Department stated it appeared noise was being generated by people on the nearby docks, and not necessarily the outdoor dining patio. They also stated they did not observe patrons on the patio after 9:30 p.m. After the Planning Commission staff report was published, several letters of support and opposition were submitted to the Planning Commission for their review and consideration (Attachment E). Letters submitted by residents on Linda Isle indicated there is an ongoing problem with noise and other disorderly conduct occurring in the vicinity of the restaurant. During the public hearing, these same residents as well as three other individuals provided testimony and spoke in opposition of the proposal. At the conclusion of the public hearing, members of the Planning Commission stated they would not support the application. The Planning Commission was unable to make the required findings to grant approval of the CUP based upon testimony that the noise emanating from the existing operations of the restaurant, outdoor dining patio and parking lot, currently disturbs some of the residents on Linda Isle. The Planning Commission stated while they recognized the Operator License could impose additional controls on the operations of the existing restaurant, they were uncertain of the effectiveness of this new tool given the fact that the current operations disturb some of the residents on Linda Isle. The Planning Commission voted unanimously (5 ayes, 2 excused) to deny the application. A copy of Resolution 1843 is attached as Attachment F. Pe0 -. On May 25, 2011, Councilmember Selich appealed the Planning Commission's action. The letter of appeal (Attachment G) states: 0 3- Thirty -3 Waterfront Restaurant Appeal Conditional Use Permit No. UP2011 -007 June 28, 2011 Page 5 "The basis for the appeal is inconsistency with the approval of Outdoor Dining Permit 49 for Mama Gina's (now Sol) approved on November 18, 1999 which allows outdoor dining until Midnight. Both 3- Thirty -3 and Mama Gina's (now Sol) are approximately 250' from the nearest residences. Also, it appears the Planning Commission failed to adequately consider the recently approved ordinance for the Operators Permit which will allow an even higher level of control over the operation than Outdoor Dining Permit 49 presently has." Pursuant to Section 20.64.030.0 of the Zoning Code, a public hearing on an appeal is conducted "de novo," which means this is a new hearing, and the prior decision by the Planning Commission to deny the application has no force or effect. The City Council is not bound by the decision of the Planning Commission, nor is it limited to the issues raised on appeal. On review, the City Council may sustain, or reverse the decision of the Planning Commission. The City Council may also remand the matter to the Planning Commission for further consideration, which remand shall include either specific issues to be considered or a direction for a new hearing. Outdoor Dining Permit 49 for Mama Gina's (now Sol Cocina) Staff notes that past approvals for other similar uses and operations in the vicinity of the proposed project and Citywide do not necessarily constitute a precedent for future approvals or decisions. Rather, approvals and decisions have been established on a case by case basis. Based on staffs research of past approvals for outdoor dining patios, there is no consistent application of closing hour limitations. The following table provides the closing hours for seven different restaurants providing outdoor dining patios which are located on the bay front in proximity to residential neighborhoods. Exist in Outdoor Dining Patios located on the Bay Front Establishment Address Hours of Operation Sol Cocina (formerly 251 East Coast Highway 11:00 a.m. to 12:00 a.m. (midnight) daily Ristorante Mamma Gina's Billy's at the Beach 2751 West Coast Highway 11:00 a.m. to 10:00 p.m. Sun. — Thurs. 11:00 a.m. to 12:00 a.m. Fri. and Sat. The Charthouse 2801 West Coast Highway 5:00 p.m. — 10:00 p.m. Mon. — Thurs. 5:00 p.m. — 12:00 a.m. Fri. and Sat. 10:00 a.m. — 10:00 p.m. Sunda The Cannery Restaurant 3010 Lafayette Avenue 9:00 a.m. — 10:00 p.m. Sun. — Thurs. 9:00 a.m. — 10:30 p.m. Fri. and Sat. Bluewater Grill 630 Lido Park Drive 9:00 a.m. — 10:00 p.m. Sun. — Thurs. 9:00 a.m. — 1:30 .m. Fri. and Sat. The Dock 2816 Lafayette Avenue 6:00 a.m. _11 100 .m. daily Woody's Wharf 2320 Newport Blvd. Use of outdoor dining patio shall cease by 11:00 p.m. 7 3- Thirty -3 Waterfront Restaurant Appeal Conditional Use Permit No. UP2011 -007 June 28, 2011 Page 6 In addition to the above noted restaurants with outdoor dining patios, a recent approval was granted by the City Council to the China Palace Restaurant, located 2800 West Coast Highway, to allow dining on the outdoor patio until 12:00 midnight when live entertainment is provided. On June 9, 2011, the Planning Commission granted approval of a new CUP for the Dry Dock Restaurant located at 2601 West Coast Highway, allowing dining on the outdoor patio 11:00 a.m. to 1:30 a.m. daily. It should be noted that these outdoor dining patios face Coast Highway, not the bay front. Operator License The appeal also raises the issue that the Planning Commission did not adequately consider the provisions of Chapter 5.25 of the Newport Beach Municipal Code (NBMC), which was adopted by City Council on January 25, 2011. Chapter 5.25 requires that operators of establishments providing alcoholic beverage service in combination with late hours must obtain approval of an Operator License issued by the Chief of Police. As stated above in this report, the Planning Commission discussed the provisions Chapter 5.25 that would allow the Police Department to impose additional controls on the operations of the existing restaurant. However, based on testimony provided during the public hearing on May 19, 2011, the existing operations of the restaurant currently disturb the peace and quiet of some residents on Linda Isle. The Planning Commission found that extending the hours of use of the outdoor dining patio until 1:00 a.m. would increase activity on the patio and project site, and potentially on the guest slips located in the Balboa Marina. For these reasons, the Planning Commission was uncertain an Operator License could effectively control existing and future nuisance noise generated by the restaurant. New Complaints Since the Planning Commission hearing on May 19, 2011, two separate complaints related to noise and objectionable activity occurring at or in the vicinity of the existing restaurant have been received. The Police Department is investigating one complaint related to an incident that occurred on the Balboa Marina docks in front of the restaurant and on Linda Isle. The Code Enforcement Division is investigating a complaint related to an alleged violation of a condition of approval of Accessory Outdoor Dining Permit No. 2007 -001. The investigations are not complete as of the writing of this report. Alternatives 1. If the City Council finds the facts do not support all five findings required to grant approval of Conditional Use Permit No. UP2011 -007, the City Council should adopt a draft Resolution No. (Attachment A.1), upholding the decision of the Planning Commission, and denying Conditional Use Permit No. UP2011 -007. 2. If the City Council finds there are facts to support all five findings required to grant approval of Conditional Use Permit No. UP2011 -007, the City Council 0 3- Thirty -3 Waterfront Restaurant Appeal Conditional Use Permit No. UP2011 -007 June 28, 2011 Page 7 should adopt a draft Resolution No. (Attachment A.2), reversing the decision of the Planning Commission, and approving Conditional Use Permit No. UP2011- 007. In this alternative, the City Council may suggest specific operational or design changes that are necessary to alleviate concerns, and mitigate noise impacts emanating from the existing outdoor dining patio by adding additional condition(s) of approval. Such operational and design conditions may include: Require that the windows and roof openings be fitted with non -fixed sound rated glass or similar materials with the final design subject to the review and approval by the Community Development Director and require that the outdoor patio windows and roof openings be closed at 7:00 p.m. daily. (Replacing Condition No. 4 in Attachment A.2) Require that the CUP be reviewed by the Planning Commission one year from the date of this approval to ensure the increased hours of operation on the outdoor dining patio have not resulted in detrimental impacts. (New Condition No. 59 in Attachment A.2) ENVIRONMENTAL REVIEW: If denied, projects which a public agency rejects or disapproves are not subject to the California Environmental Quality Act ( "CEQA ") review, pursuant to Section 15270 of the CEQA Guidelines. If approved, this project is exempt from CEQA, pursuant to Section 15301 (Class 1 — Existing Facilities) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because the change in hours of operation does not involve an expansion of an existing use; and therefore, the project has no potential to have a significant effect on the environment. NOTICING: Notice of this hearing was published in the Daily Pilot, mailed to all property owners within 300 feet of the property, and posted at the project site a minimum of 10 days in advance of this hearing consistent with the Municipal Code. Additionally, the item appeared on the agenda for this meeting, which was posted at City Hall and on the City website. The agenda item has been noticed according to the Brown Act (72 hours in advance of the meeting at which the City Council considers the item). I 3- Thirty -3 Waterfront Restaurant Appeal Conditional Use Permit No. UP2011 -007 June 28, 2011 Page 8 Submitted/by: Kimberly Brandt, AICP Community Development Director Attachments: A. (Draft) Resolution No. (A.1 Resolution Upholding Decision of Planning Commission, A.2 Resolution Reversing Decision of Planning Commisison) B. Planning Commission Staff Report — May 19, 2011 C. Planning Commission Meeting Minutes dated June 7 and June 21, 2007 D. Planning Commission Meeting Minutes dated May 19, 2011 E. Letters Received in Support and Opposition to the Project F. Planning Commission Resolution 1843 G. Letter of Appeal filed by Councilmember Edward Selich 10 City Council Attachment A (Draft) Resolution No. i1 12 Attachment A.1 Resolution Upholding Decision of Planning Commission 13 14 RESOLUTION NO. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH UPHOLDING THE DECISION OF THE PLANNING COMMISSION AND DENYING CONDITIONAL USE PERMIT NO. UP2011 -007 FOR AN EATING AND DRINKING ESTABLISHMENT LOCATED AT 333 BAYSIDE DRIVE (PA2011- 041) THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS FOLLOWS: SECTION 1. STATEMENT OF FACTS. 1. An application was filed by Jeff Reuter, with respect to the property located at 333 Bayside Drive, and legally described as Lot' B of Parcel Map Book 16 Page 10 (Resubdivision No. 249), requesting approval of a new conditional use permit. 2. The applicant filed an application requesting a new conditionaf'use: permit to extend the hours of operation granted by Accessory Outdoor Dining Perm fU., 2007 -001 for an existing outdoor dining patio from 9:00 a.m. to 9:30 p.m. daily to 9.00 7a.m. to 1:00 a.m. daily. No other changes to the°: existing restaurant operations were requested or proposed. 3. The subject property is located within the`Commercial Recreational and Marine (CM) Zoning District and the General Plan Land Use Element category is Recreational and Marine Commercial (CM). v, 4. The subject property is located within the coastal zone. The Coastal Land Use Plan category is Recreational and Marine Commercial (CM -A). 5. A ptib I c hearing washeld on May 19, 2011, in the City Hall Council Chambers, 3300 Newport Boulevard, Newport Beach, California. A notice of time, place and purpose of the me'eti,ng was gigLiin accordance with the Newport Beach Municipal Code (NBMC) Evidence, bot siNvritten and oral, was presented to, and considered by, the Planning Comip.Cssion at meeting. 6. At the May 19, 2011, PTa'nning Commission hearing, the Planning Commission voted unanimously (5 aye' excused) to deny the project. 7. On May 25, 2011, the Planning Commission's decision to deny Conditional Use Permit No. UP2011 -007 was appealed by City Councilmember Edward Selich. The appeal was filed to discuss and review the inconsistency of the denial with approval of Outdoor Dining Permit No. 49 granted Ristorante Mamma Gina's (now Sol Cocina) adjacent to the subject property, and to discuss and review the requirement that the operator obtain an Operator License pursuant to NBMC Chapter 5.25 to allow a higher level of control over the operation of the existing Out. ( 15 City Council Resolution No. 3- Thirty -3 Waterfront Restaurant (PA2011 -041) Conditional Use Permit No. UP2011 -041 Paqe 2 of 3 8. A public hearing was held by the City Council on June 28, 2011, in the City Hall Council Chambers, 3300 Newport Boulevard, Newport Beach, California. A notice of time, place and purpose of the meeting was given in accordance with the Newport Beach Municipal Code. Evidence, both written and oral, was presented to, and considered by, the City Council at this meeting. 9. Pursuant to Section 20.95.060.C, the public hearing was conducted "de novo," meaning that it is a new hearing and the decision being appealed has no force or effect as of the date the call for review was filed. SECTION 2. CALIFORNIA ENVIRONMENTAL QUALITY ACT DETERMINATION. 1. Pursuant to Section 15270 of the California Environmental Quality Act (CEQA) Guidelines, projects which a public agency rejects or disapproves are not subject to CEQA review. SECTION 3. REQUIRED FINDINGS. In accordance with Section 20.52.020 F of the Zoning Code, eating and drinking establishments classified as "Food Service, Late Hours" located within the Commercial Recreational and Marine (CM) Zoning District require the approval of a conditional use permit. The City Council may approve a conditional use permit only after making each of the five required findings set forth in Section 20.52.020.F. In this case, the City Council was unable to make the required findings based upon the following: 1. Residents of Linda Isle testified that noise emanating from the operation of the existing restaurant that is permitted to operate until 2:00 a.m., including the existing outdoor dining patio that is required to close at 9:30 p.m., presently disturbs some residents who reside on Linda Isle. The nuisance noise is associated with the operating the restaurant, outdoor patio, and includes activity within the surrounding parking lot and patrons using the guest docks that are located within the waterway between the project site and Linda Isle. 2. Five single family homes are located within approximately 250 to 325 feet of the project site on Linda Isle and when ambient noise lowers as the evening progresses, nuisance noise associated with the restaurant and the operation of the adjacent restaurant (Sol Cocina) can disturb residents of Linda Isle. 3. Extending the hours of use of the outdoor dining patio until 1:00 a.m. will increase activity within the patio and on the project site and potentially on the guest docks located in the intervening water way. Additional nuisance noise associated with the increased activity will disturb residents of Linda Isle and would not be compatible with the quite enjoyment of their residential property during the late evening and early morning hours. Tmplt: 03/08111 10 City Council Resolution No. _ 3- Thirty -3 Waterfront Restaurant (PA2011 -041) Conditional Use Permit No. UP2011 -041 Paae 3 of 3 SECTION 4. DECISION. NOW, THEREFORE, BE IT RESOLVED: The City Council of the City of Newport Beach hereby denies Conditional Use Permit No. UP2011 -041, upholding the decision of the Planning Commission of the City of Newport Beach. 2. This resolution was approved, passed and adopted by the City Council of the City of Newport Beach at a regular meeting held on the 281h June, 2011, by the following vote, to wit: AYES, COUNCIL MEMBERS NOES, COUNCIL MEMBERS ABSENT COUNCIL MEMBERS u_ •C ATTEST: CITY CLERK Tmplt: 03/08(11 17 12 RESOLUTION NO. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH UPHOLDING THE DECISION OF THE PLANNING COMMISSION AND DENYING CONDITIONAL USE PERMIT NO. UP2011 -007 FOR AN EATING AND DRINKING ESTABLISHMENT LOCATED AT 333 BAYSIDE DRIVE (PA2011- 041) THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH DS AS FOLLOWS: SECTION 1. STATEMENT OF FACTS. 1. An application was filed by Jeff Reuter, with respecti to the property located at 333 Bayside Drive, and legally described as Lot B of- Parcel Map `Book 16 Page 10 (Resubdivision No. 249), requesting approval of a new conditional use permit. 2. The applicant filed an application requesting a ---'new conditional use permit to extend the hours of operation granted by Accessory Outdoor. Dining Permit No. 2007 -001 for an existing outdoor dining patio from, 9:00 a.m. to 9:3WO _ni daily to 9:00 a.m. to 1:00 a.m. daily. No other changes to the existing restaurant operations were requested or proposed. 3. The subject property is located within, the:Coir mercial. ..Recreational and Marine (CM) Zoning District and,,the: General Plan lapd''Use 86ment category is Recreational and Marine Commercial CM y 4. The subject property is located within the coastal zone. The Coastal Land Use Plan category is Recreational and.;Marine Commercial (CM -A). 5. A public hearing was held ;on May 19; 2011, in the City Hall Council Chambers, 3300 Newport Boulevard;>.Newpoft Beach, California. A notice of time, place and purpose of the., meeting was given in accordance with the Newport Beach Municipal Code (NBMC). Evidence, both written and oral, was presented to, and considered by, the Plannirg-Commissionat this meeting. 6. At the May19, 2011�;Planning Commission hearing, the Planning Commission voted unanimously-,(5;ayes 2 excused) to deny the project. 7. On May 25, 2011, the Planning Commission's decision to deny Conditional Use Permit No. UP2011 -007 was appealed by City Councilmember Edward Selich. The appeal was filed to discuss and review the inconsistency of the denial with approval of Outdoor Dining Permit No. 49 granted Ristorante Mamma Gina's (now Sol Cocina) adjacent to the subject property, and to discuss and review the requirement that the operator obtain an Operator License pursuant to NBMC Chapter 5.25 to allow a higher level of control over the operation of the existing Out. ( 19 City Council Resolution No. 3- Thirty -3 Waterfront Restaurant (PA2011 -041) Conditional Use Permit No. UP2011 -041 Page 2 of 3 8. A public hearing was held by the City Council on June 28, 2011, in the City Hall Council Chambers, 3300 Newport Boulevard, Newport Beach, California. A notice of time, place and purpose of the meeting was given in accordance with the Newport Beach Municipal Code. Evidence, both written and oral, was presented to, and considered by, the City Council at this meeting. 9. Pursuant to Section 20.95.060.C, the public hearing was, conducted "de novo," meaning that it is a new hearing and the decision being appealed has no force or effect as of the date the call for review was filed. SECTION 2. CALIFORNIA ENVIRONMENTAL QUALITY 1. Pursuant to Section 15270 of the Guidelines, projects which a public < CEQA review. SECTION 3. REQUIRED FINDINGS. In accordance with Section 20.52.020 establishments classified as "Food Servii Recreational and Marine (CM) Zoning Di permit. The City Council may approve a cc five required findings set forth in Section unable to make the requiredfindings based NATION. vironmental' Quality Act (CEQA) or disapproves 'are, not subject to F of the Zoning Code, eating and drinking e,,.,Late Hours' located within the Commercial >trict require the approval of a conditional use iditional use .permit only after making each of the W.510 F. In this case, the City Council was upon the following: 1. Residents of Linda Isle testified that noise emanating from the operation of the existing restaurant that "is permitted to operate until;2:00 a.m., including the existing outdoor dining patio that is -require d to;;close at 9.30 p.m., presently disturbs some residents who reside on Linda Isle. The nuisance noise is associated with the operating the restaurant, outdoor patio, and includes activity within the surrounding parking lot and patrons using ` W guest docks that are located within the waterway between the 'oroiect site and Linda -Isle. 2. Five single family homes are located within approximately 250 to 325 feet of the project site on Linda Isle and when ambient noise lowers as the evening progresses, nuisance noise associated with the restaurant and the operation of the adjacent restaurant (SolCocina) can disturb residents of Linda Isle. 3. Extending the -hours of use of the outdoor dining patio until 1:00 a.m. will increase activity within the patio and on the project site and potentially on the guest docks located in the intervening water way. Additional nuisance noise associated with the increased activity will disturb residents of Linda Isle and would not be compatible with the quite enjoyment of their residential property during the late evening and early morning hours. Tmplt: 03/08/11 20 City Council Resolution No. _ 3- Thirty -3 Waterfront Restaurant (PA2011 -041) Conditional Use Permit No. UP2011 -041 Page 3 of 3 SECTION 4. DECISION. NOW, THEREFORE, BE IT RESOLVED: Tmpll: 03/08/11 21 22 Attachment A.2 Resolution Reversing Decision of Planning Commission 23 24 RESOLUTION NO. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH REVERSING THE DECISION OF THE PLANNING COMMISSION AND APPROVING CONDITIONAL USE PERMIT NO. UP2011 -007 FOR AN EATING AND DRINKING ESTABLISHMENT LOCATED AT 333 BAYSIDE DRIVE (PA2011- 041) THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS FOLLOWS: SECTION 1. STATEMENT OF FACTS. 1. An application was filed by Jeff Reuter, with respect'--to the property located at 333 Bayside Drive, and legally described as Lot ' B of Parcel Map Book 16 Page 10 (Resubdivision No. 249), requesting approval of a new conditional use permit. ;. 2. The applicant filed an application requesting a new conditional use permit to extend the hours of operation granted by Accessory Outdoo�,;'Dining Permit No. 2007 -001 for an existing outdoor dining patio from: 9:00 a.m. to 9:30-10,-, m, daily to 9:00 a.m. to 1:00 a.m. daily. No other changes to the existing restaurant operations were requested or proposed. 3. The subject property is located within, the Zoning District and,.the.;;:General Plan Land Marine Commercial fCM). 4. The subject = "property is located within category is Recreational ano':Mar..ine Cc ecreational and Marine (CM) category is Recreational and ,tal zone. The Coastal Land Use Plan I (CM -A). 5. A public hearing ,was held ;on May 19; 2011, in the City Hall Council Chambers, 3300 Newport Boule31rd, :Newport Beach, California. A notice of time, place and purpose of the;, meeting was given m accofdance with the Newport Beach Municipal Code (N 'MC). Evidence, both written and oral, was presented to, and considered by, the Plana %g,Commission'atthis Meeting. 6. At the a0, 2011;::Planning Commission hearing, the Planning Commission voted unanimously(5;ayes,'2 excused) to deny the project without prejudice. 7. On May 25, 2011, the Planning Commission's decision to deny Conditional Use Permit No. UP2011 -007 was appealed by City Councilmember Edward Selich. The appeal was filed to discuss and review the inconsistency of the denial with approval of Outdoor Dining Permit No. 49 granted to Ristorante Mamma Gina's (now Sol Cocina) adjacent to the subject property, and to discuss and review the requirement that the operator obtain an Operator License pursuant to NBMC Chapter 5.25 to allow a higher level of control over the operation of the existing outdoor dining patio. 215 City Council Resolution No. _ 3- Thirty -3 Waterfront Restaurant (PA2011 -041) Conditional Use Permit No. UP2011 -041 Paae 2 of 13 8. A public hearing was held by the City Council on June 28, 2011, in the City Hall Council Chambers, 3300 Newport Boulevard, Newport Beach, California. A notice of time, place and purpose of the meeting was given in accordance with the Newport Beach Municipal Code. Evidence, both written and oral, was presented to, and considered by, the City Council at this meeting. 9. Pursuant to Section 20.64.030.C, the public hearing was., conducted "de novo," meaning that it was a new hearing and the decision being appealed has no force or effect as of the date the call for review was filed. SECTION 2. CALIFORNIA ENVIRONMENTAL QUALITY 1. This project has been determined to be a of the California Environmental Quality Act 2. This exemption applies to existing facilitiE involves no expansion of the existing use. involve an expansion of the existing use. SECTION 3. REQUIRED FINDINGS. In accordance with Section 20.48.030 of finding and facts in support of such finding Finding: A. The use is consistent with the purpose of the Zoning Code;:!_ _;;; ::..:....... mek the requirements e project does not icipal Code, the following of Section 20.48.030 (Alcohol Sales) A -1., Tfe „project has beenrevlewed:and conditioned to ensure that the purpose and intent of Section 20.48 030 ...(Alcohol` Sales) of the Zoning Code is maintained and that a healthy environment ,for residents and businesses is preserved. The service of alcoholid_ beverages is intended for the convenience of customers of the restaurant. Operational: conditioris of approval recommended by the Newport Beach Police Department'(N_BP.D) relative to the sale of alcoholic beverages will ensure compatibility with the surrounding use and minimize alcohol - related impacts. A -2. Pursuant to Chapter 5.25 of the NBMC, the project has been conditioned to require that the applicant, as well as any future operators of the existing eating and drinking establishment, obtain an Operator License to ensure the establishment is operated in a safe manner. Tmpll: 03/08/11 MM City Council Resolution No. _ 3- Thirty -3 Waterfront Restaurant (PA2011 -041) Conditional Use Permit No. UP2011 -041 Paae3of13 In accordance with Section 20.20.020 of the Zoning Code, eating and drinking establishments classified as "Food Service, Late Hours" require the approval of a conditional use permit within the Commercial Recreational and Marine (CM) Zoning District. In accordance with Section 20.52.020.E of the Zoning Code, the following findings and facts in support of such findings are set forth: Finding: B. The us a is consistent with the General Plan and any Facts in Support of Finding: B -1. The Recreational and Marine Commercial (C is intended to encourage and provide for serving uses. The operation of a "Food beverage sales is consistent with the purpo B -2. Food service uses are expected to be loc complementary to the existing commercial and r are frequented by visitors, tenants' o he nearby B -3. The subject property is not part of a Finding: C. The use is applicable / C -1. The subject pi Zo' ning District, supportive bu Late Hours" terjt =:of this land plan. the General Plan less and visitor - e(with alcoholic commercial areas, and are I uses in the area. Such uses :ial uses, and residents alike. lvithin'the applicable,- district and complies with all other of thsZoning Code and `the Municipal Code. is located in the Commercial Recreational and Marine (CM) sting and :'drinking establishments classified as "Food Service, :;approval of a conditional use permit. C -2. As conditioned, the project will comply with Zoning Code standards for eating and drinking establishments. Conditions are included related to on -sale alcoholic beverage activities, including >the training of personnel, and the provision of security personnel while live entertainment is offered. C -3. Pursuant to Chapter 5.25 of the NBMC, the project has been conditioned to require the applicant, and any future operator of the eating and drinking establishment, to obtain an Operator License from the NBPD in order to maintain operating hours beyond 11:00 P.M. Findinq: Tmplt: 03/08/11 27 City Council Resolution No. 3- Thirty -3 Waterfront Restaurant (PA2011 -04_ 1) Conditional Use Permit No. UP2011 -041 Page 4 of 13 D. The design, location, size, and operating characteristics of the use are compatible with the allowed uses in the vicinity. Facts in Support of Finding: D -1. The project has been reviewed and conditioned to ensure that potential conflicts with the surrounding land uses are minimized to the extent possible .to maintain a healthy environment for both residents and businesses. D -2. Adequate parking is maintained on -site and provided by complimentary valet service during all hours of operation. D -3. The location of the valet parking pick-up-,-66d drop -off area, 6 1n .,Ahe designated smoking area, is shielded from the residences by the restaurant building, thereby mitigating noise impacts from this activity. D -4. The design and construction materials of the outdoor. dining patio prevent excessive noise from emanating from thWarea. As conditioned; _the sound attenuating windows are required to be closed from .M_00 p.m. to 8:00 a m .. A condition of approval is included requiring that recorded music or other types of sountl amplification within the outdoor patio area shall only be audible to 'audience within the patio area, and shall cease after the hour of 10:00 p.m. daily:_ Finding: E. The site is "ph characteristics, in terms of..,design, location, shape, size, operating M. of public and emergency vehicle (e.g., fire and E -1. This is an existing eating and drinking establishment that has existed in this location since 1968, and the °?`;project site has proven to be physically suitable in size to E -2. The project site, id located at the southwest corner of Bayside Drive and East Coast Highway, and is surrounded by similar commercial uses located to the west, and the southeast of the use. This is an appropriate location for an eating and drinking establishment. The use is complementary to the existing commercial uses in the area, as well as the residential uses located to the south of the project site. Tmpit: 03/08111 22 City Council Resolution No. _ 3- Thirty -3 Waterfront Restaurant (PA2011 -041) Conditional Use Permit No. UP2011 -041 Paqe 5 of 13 E -3. The Traffic Engineer has previously reviewed the configuration of the parking lot, as well as the valet parking plan, and has determined the parking lot design functions safely and does not prevent emergency vehicle access to the establishment. E -4. The site is currently served by public services and utilities. Finding: F. Operation of the use at the location proposed would _;not be detrimental to the harmonious and orderly growth of the City, or endanger- jeopardize, or otherwise constitute a hazard to the public convenience, health, interest, safety, or general welfare of persons residing or working in the neighborhood of the ,proposed use. Facts in Support of Finding: F -1. The project has been reviewed and conditioned to ensure the continued I operation of the existing eating and drinking establishment will _not be detrimental to the community. F -2. An increase in pedestrian and vehicular activity from patrons using the outdoor dining area during late night and early morning, hours may occur.,. However, impacts from this increase in activity would be mitigated due, to the location of.the existing valet parking pick -up and drop -off area, and the designated; smoking area, which are shielded from residences on Linda Isle by the restaurant building_ F -3. The applicant has operated the existing eating and drinking establishment in this location since,2004, and ,has demonstrated the continued willingness and ability to control noise generated by patrons of the restaurant. The applicant will be required to obtain an Operator License from :the NBPDin order to extend the hours of operation of the ou #doordining patio-.t.1 1:00 a m The Operator License will provide for enhanced control" of noise, loitering; .,litter, disorderly conduct, parking /circulation, and other potential disturbances resulting from the existing establishment, and will provide the NBPD with means to modify, suspend, or revoke the operator's ability to maintain late - hour'-operations if obiectionable condition occur. SECTION 4. DECISION, NOW, THEREFORE, BE IT RESOLVED: The City Council of the City of Newport Beach hereby approves Conditional Use Permit No. UP2011 -041, reversing the decision of the Planning Commission. Approval of Use Permit No. UP2011 -041 shall be subject to the conditions set forth in Exhibit A, which is attached hereto and incorporated by reference. Tmplt: 03/08/11 29 City Council Resolution No. _ 3- Thirty -3 Waterfront Restaurant (PA2011 -041) Conditional Use Permit No. UP2011 -041 Pacie 6 of 13 2. This resolution supersedes Use Permit No. 3325 (amended) and Planning Commission Resolution No. 1724, which upon vesting of the rights authorized by this Conditional Use Permit No. UP2011 -007, shall become null and void. 3. This resolution was approved, passed and adopted at a regular meeting of the City Council of the City of Newport Beach, held on the 28th day of June, 2011, by the following vote. to wit: Tmplt: 03/08/11 30 City Council Resolution No. _ 3- Thirty -3 Waterfront Restaurant (PA2011 -041) Conditional Use Permit No. UP2011 -041 Pace 7 of 13 EXHIBIT "A" CONDITIONS OF APPROVAL (Project- specific conditions are in italics) PLANNING 1. The development shall be in substantial conformance with the_approved site plan, floor plans and building elevations stamped and dated with the date of this approval. (Except as modified by applicable conditions of approval.) 2. Conditional Use Permit No. 2011 -007 shall expire unless exercised within 24 months from the date of approval as specified in Section;-20.54.060 of =the Newport Beach Municipal Code (NBMC), unless an extension is'otherwise granted. 3. The hours of operations shall be limited to between 9 WO a.m. and 11 00` "p. m. daily, unless the applicant/operator, including any future.._ operator, secures and maintains. an Operator License issued by the Chief of Police, pursuant to Chapter 5.25 of the NBMC. In no case shall the interior portion of the eating and dhnking establishment be permitted to operate beyond the hour of 2:00 a.m. daily. The outdoor dining patio shall not be permitted to operate beyond the hour of`1 :OQ,a.m., daily. 4. The sound attenuating windows on p.m. to 8 :00 a.m. 5. All doors remain cd shall be closed from 9 :00 interior of>,the eating and drinking establishment shall for the ingress and egress of patrons and employees. 6. The Operator License required to'.. a obtained pursuant to Condition No. 3 and Chapter 5.25 may be subject to additional and %r more restrictive conditions to regulate and control pote4 Wate -hour nuisances associated with the operation of the establishment. 7. Full. meal service ''sl all be ,:provided and available for ordering at all times the establishment is open_ for business. 8. The outdoor dining ,area shall be used in conjunction with the eating and drinking establishment:::;;_ No; special events/promotional activities shall be allowed within the area of the outdoorinirig patio. 9. The outdoor dining patio shall be limited to 636 square feet in area. 10. The outdoor dining area shall be limited to a maximum of 37 seats, including disabled seats /table space. The seating and dining in the outdoor dining patio shall be limited to dining table height (approximately 30 inches) and the use of the elevated counters and barstools is prohibited. Tmplt: 03/08/11 31 City Council Resolution No. _ 3- Thirty -3 Waterfront Restaurant (PA2011 -041) Conditional Use Permit No. UP2011 -041 Page 8 of 13 11. All employees shall park on on -site. 12. The net public area of the interior portion of the eating and drinking establishment shall not exceed 2, 560 square feet. 13. A minimum of 34 parking spaces shall be provided on -site for the daytime operation of the eating and drinking establishment Monday through Friday: ` A total of 64 parking spaces shall be provided on -site for all other hours of operation of the establishment (one parking space for each 40 square feet of net public area) 14. Prior to implementation of the late hours applicant/operator shall submit a valet parking pl, Works Department and Community Developme valet parking plan shall demonstrate that adegu and pedestrian circulation systems are provided ;. location of valet parking pick -up and drop -off residences on Linda Isle by the subject restal transmission of noise to Linda Isle, to the maxir shall include a waiting /queuing area for guests from valet parking and a designated smoking. are 15. The applicant/operator shall conspic, dining, waiting, smoking :and parking' restaurant and public dock; and boat patrons be courteous to residential nei 16. The proiect is subs m on 'the outdoor dining patio, the n for review and approval by the Public It Department/Planning.. Division. The to on -site parking, vehlcUlar_circulation The valet parking plan shall include the ea so as Io, be shielded from nearby vot building in order to minimize the um extent feasible. The parking plan fropping off or picking up automobiles for patrons;of the restaurant y--post t and maintain signs at all outdoor > indicating to patrons the proximity of the areas to the residential areas, requesting rs while outside the establishment. City ordinances, policies, and standards, unless conditions of approval. 17. The applicant/operator shall -comply with all federal, state, and local laws. Material violation of any of those laws in-connection with the use may be cause for revocation of this.-Conditional Use Permit.. 18. The applicant/operator shall maintain a copy of the most recent City permit conditions of approval on the premises and shall post a notice that these are available for review on the premises. The posted notice shall be signed by the permittee. 19. This approval was based on the particulars of the individual case and does not in and of itself or in combination with other approvals in the vicinity or Citywide constitute a precedent for future approvals or decisions. 20. This Conditional Use Permit may be modified or revoked by the City Council or Planning Commission should they determine that the proposed uses or conditions under which it is being operated or maintained is detrimental to the public health, Tmpll: 03/08/11 S2 City Council Resolution No. _ 3- Thirty -3 Waterfront Restaurant (PA2011 -041) Conditional Use Permit No. UP2011 -041 Page 9 of 13 welfare or materially injurious to property or improvements in the vicinity or if the property is operated or maintained so as to constitute a public nuisance. 21. Approval of Conditional Use Permit No. 2011 -007 is for the operation of an eating and drinking establishment defined as "Food Service, Late Hours" per Title 20 of the NBMC, and does not permit or authorize the use or operation of a bar, tavern, cocktail lounge, nightclub or commercial recreational entertainment venue. 22. Any change in operational characteristics, expansion in area, or other modification to the approved plans, shall require an amendment to this= :Conditional Use Permit or the processing of a new Conditional Use Permit. 23. The type of alcoholic beverage license issued= 'by;:the Callfornia;'Board of Alcoholic Beverage Control shall be a Type 47 in conjunction with the service.,of food as the principal use of the facility. Any upgrade it. the alcoholic beverage license shall be subject to the approval of an amendment t.bAhis application, and may require the approval of the Planning Commission. 24. All landscaped areas shall be maintained In a healthy,' nd growing condition and shall receive regular pruning, fertilizing, mowing and trimming ;All landscaped areas shall be kept free of weeds and debris. All Irrigation systems shall; be kept operable, including adjustments, replacements, repairs;:and clear ing,ps part of "regular maintenance. 25. Water should not, be =used to clean paved surfaces "such as sidewalks, driveways, parking areas, etc exceo4to alleviate immediate safety or sanitation hazards. 26. The washing of the..,outdoor�dining patio with any cleaning solutions or the use of high pressure orstearri`c(eaning.,deyices is pr d. 27. Lighting shall be in compliance with applicable standards of the Zoning Code. The site shall not be excessively Illuminated based on the luminance recommendations of the Illuminating Engineering Society of North America, or, if in the opinion of the Community Development Director, the illumination creates an unacceptable negative impact` on surrounding land uses or environmental resources. The Community Development Direct W- may order the dimming of light sources or other remediation upon findirgthat the...-site is excessively illuminated. 28. All noise generated by the existing eating and drinking establishment use shall comply with the provisions of Chapter 10.26 and other applicable noise control requirements of the Newport Beach Municipal Code. The maximum noise shall be limited to no more than depicted below for the specified time periods unless the ambient noise level is higher: Tmplt: 03/08111 33 City Council Resolution No. _ 3- Thirty -3 Waterfront Restaurant (PA2011 -041) Conditional Use Permit No. UP2011 -041 Pace 10 of 13 a.m. Measured at the property line of commercially zoned property: 65 dBA 60 dBA Measured at the property line of residentially zoned property: 55 dBA 50 dBA Measured in the interior of a 45 dBA 40 dBA residential structure 29. The applicant shall retain a qualified engineer monitor the sound generated by the outdoor dinin these conditions, if required by the Community Qq� 30. The applicant/operator of the facility shall any noise generated by the subject . generated by patrons, food service operat 31. Should the property be sold or otherwise come owners or assignees shall be notified of the co current business owner, propertyoivner or the le 32. No live entertainment shall be establishment unless the operator 33. No outside device in noise /acoustics to isure compliance with for and shall- petively control but not limif' .-,-to, noise Inical equipment: different ownership, any future ,,of this approval by either the if the eating and drinking from the City. be used in conjunction with this 34. No live entertainment -shall be permitted in the outdoor dining area. Recorded music or vs other types of sound amplification within ";fhe outdoor dining area shall only be audible to the audieh6d7within this-' are'a,..and shall cease after the hour of 10:00 p.m. daily. 35. No dancing shall be allowed on the premises of the eating and drinking establishment. 36. The applicant/operator; shall provide licensed security personnel while offering live entertainment. A comprehensive security plan for the permitted uses shall be submitted for reviewdnd approval by the Newport Beach Police Department (NBPD). The procedures included'in the plan and any recommendations made by the NBPD shall be implemented and: adhered to for the life of the Conditional Use Permit. 37. All trash shall be stored, within the building or within dumpsters stored in the trash enclosure (three walls and a self - latching gate) or otherwise screened from view of neighboring properties, except when placed for pick -up by refuse collection agencies. The trash enclosure shall have a decorative solid roof for aesthetic and screening purposes. Tmplt: 03/08/11 S4 City Council Resolution No. 3- Thirty -3 Waterfront Restaurant (PA2011 -041) Conditional Use Permit No. UP2011 -041 Paqe 11 of 13 38. Trash receptacles for patrons shall be conveniently located both inside and outside of the establishment, however, not located on or within any public property or right -of- way. 39. The exterior of the business shall be maintained free of litter and graffiti at all times. The owner or operator shall provide for daily removal of trash, litter debris and graffiti from the premises and on all abutting sidewalks within 20 feet of the premises. 40. The applicant/operator shall ensure that the trash dumpsters and /or receptacles are maintained to control odors. This may include the - ;.'provision of either fully self - contained dumpsters or periodic steam cleaning of the _dumpsters, if deemed necessary by the Code Enforcement Division.; Cleaning and maintenance of trash dumpsters shall be done in compliance with the provisions of Title 14, including all future amendments (including Water Quality, related requirements) 41. Deliveries and refuse collection for the facility shall be prohibited between the hours of 10:00 p.m. and 8:00 a.m., daily, unless otherwise approved by the Community Development Director, and may require an amendment to this Use Permit. 42. Storage outside of the building - -in the front or at the rear of the property shall be prohibited, with the exception of the required trash container enclosure. 43. A Special Events Permit is required for any event or;,promotional activity outside the normal operational ,characteristics of the :approved us e, as conditioned, or that would attract large crowds, involve the sale of alcoholic beverages, include any form of on- "j site media broadcast, or.,-----any other activities as specified in the Newport Beach Municipal Code' to; require such permits. 44. Kitchen.' exhaust fans_`shall be installed /maintained in accordance with the Uniform Mechanical Code. The-As sues with regard to the control of smoke and odor shall be directed to the South Coast Air-Quality Management District, 45. All exists shall remain free of obstructions and available for ingress and egress at all 46. Strict adherence to maximum occupancy limits is required. 47. The use of private (enclosed) "VIP" rooms or any other temporary or permanent enclosures separate from public areas are prohibited. 48. All owners, managers and employees selling, serving or giving away alcoholic beverages shall undergo and successfully complete a certified training program in responsible methods and skills for selling alcoholic beverages. The certified program must meet the standards of the California Coordinating Council on Responsible Beverage Service or other certifying /licensing body, which the State may designate. Tmplt: 03/08/11 S5 City Council Resolution No. 3- Thirty -3 Waterfront Restaurant (PA2011 -041) Conditional Use Permit No. UP2011 -041 Page 12 of 13 The establishment shall comply with the requirements of this section within 180 days of the issuance of the certificate of occupancy. Records of each owner's, manager's and employee's successful completion of the required certified training program shall be maintained on the premises and shall be presented upon request by a representative of the City of Newport Beach. 49. Any event or activity staged by an outside promoter or entity, where the restaurant owner or his employees or representatives share in any profits,-or pay any percentage or commission to a promoter or any other person based'upon money collected as a door charge, cover charge or any other form of admission = charge, including minimum drink orders or sale of drinks is prohibited. 50. No alcoholic beverages shall be consumed on- any premises under the control of the license. to the licensed 51. No "happy hour" type of reduced price alcoholic beverage promotion shall be allowed except in conjunction with food service available from -tfe full service--menu. There shall be no reduced price alcoholic beverage promotion after 9:00 p.m. 52. "VIP" passes or other passes to enter the establishment, as well as door charges, cover charges, or any other form of admission charge, including minimum drink order or sale of drinks is prohibited. 53. The quarterly gross sales of alcoholic beverages shall not exceed the gross sales of food and retail sales during:,the same period. The licensee shall maintain records that reflect separately, the gross sale of food 'and the gross sales of alcoholic beverages of the licensed business. Said records shall be kept no less frequently than on a quarterly basis and shall be made available-to, the NBPD on demand. 54. No on -site radio, television',video, film or other media broadcasts from the establishment that includes the service of Wcoholic beverages shall be permitted without first obtaining an _approved Special Event Permit issued by the City. This prohibition of media broadcasts includes recordings to be broadcasted at a later time. 55. All signs shall be in conformance with the provisions of Chapter 20.42 of the Newport Beach Municipal Code. 56. There shall be'no exterior advertising or signs of any kind or type, including advertising directed to the exterior from within, promoting or indicating the availability of alcoholic beverages. Interior displays of alcoholic beverages or signs that are clearly visible to the exterior shall constitute a violation of this condition. 57. No games or contests requiring or involving the consumption of alcoholic beverages shall be permitted. Tmplt: 03/08/11 so City Council Resolution No. _ 3- Thirty -3 Waterfront Restaurant (PA2011 -041). Conditional Use Permit No. UP2011 -041 Page 13 of 13 58. To the fullest extent permitted by law, applicant/operator shall indemnify, defend and hold harmless City, its City Council, its boards and commissions, officials, officers, employees, and agents from and against any and all claims, demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever which may arise from or in any manner relate (directly or indirectly) to City's approval of the 3- Thirty -3 Waterfront Restaurant including, but not limited to, the Use Permit No. 2011 -007. This indemnification =shall include, but not be limited to, damages awarded against the City, if any, costs'of suit, attorneys' fees, and other expenses incurred in connection with such claim,,; action, causes of action, suit or proceeding whether incurred by applicant/operator, City, and %or,the parties initiating or bringing such proceeding. The applicant /operator shall indemnify the City for all of City's costs, attorneys' fees, and damages which City incurs'in enforcing the indemnification provisions set forth in this condition. The applicant/operator shall pay to the City upon demand any amount owed to the City pursuant to the indemnificatiori.,requirements prescribed in this condition. < >_ Tmplt: 03/08/11 S7 S2 City Council Attachment B Planning Commission Staff Report dated May 19, 2011 39 IN CITY OF NEWPORT BEACH PLANNING COMMISSION STAFF REPORT May 19, 2011 Agenda Item 2 SUBJECT: 3- Thirty -3 Waterfront Restaurant (PA2011 -041) 333 Bayside Drive o Conditional Use Permit No. UP2011 -007 APPLICANT: Jeff Reuter PLANNER: Janet Johnson Brown, Associate Planner (949) 644 -3236 jbrown @newportbeachca.gov PROJECT SUMMARY The application consists of a request for a new conditional use permit to extend the hours of operation granted by Accessory Outdoor Dining Permit No. 2007 -001 for an existing outdoor dining patio from 9:00 a.m. to 9:30 p.m. daily to 9:00 a.m. to 1:00 a.m. daily. The hours of operation for the interior portion of the existing restaurant are 9:00 a.m. to 2:00 a.m. daily, as allowed by Use Permit No. 3325 (amended). If approved, the new conditional use permit will supersede the existing use permit and accessory outdoor dining permit, and an Operator License will be required. RECOMMENDATION 1) Conduct a public hearing; and 2) Adopt Resolution No. — approving Conditional Use Permit No. UP2011 -007 (Attachment No. PC 1), subject to Conditions of Approval including the requirement that the applicant/operator obtain an Operator License issued by the Chief of Police in order to operate a restaurant in combination with late hours and alcoholic beverage service. INTRODUCTION Proiect Settin The existing restaurant is located at the southwest corner of Bayside Drive and East Coast Highway. The surrounding land uses Include a restaurant and commercial parking lot to the west, office uses to the southeast, and a Chevron service station and shopping center to the east across Bayside Drive. The Linda Isle single - family residential neighborhood is located to the south of the project site, and a boat storage and mobile home park is located to the north across East Coast Highway. Boat docks maintained by the Balboa Marina are located on the channel in front of the restaurant and to the west of the restaurant site. 41 42 3- Thirty -3 Waterfront Restaurant May 19, 2011 Page 2 VICINITY MAP a PR a LOCATION ON -SITE r, ! j 1. D 011 GENERALPLAN Recreational and Marine Commercial (CM) yy � fryY L'. NORTH Recreational and Marine Commercial (CM) SOUTH Single -Unit Residential Detached (RS -D) EAST General Commercial (CG). WEST Recreational and Marine Commercial (CM) n , � Pic I ( AP O COpSf NNtE�xT� CM:0.3`FAR z51 1O xl fi —0—AR WATER 9) Ol 9) 9. 41 9 1) 9E ln�ti / a 105 } )0 1 m IO 11 ,.re .rxeO�c. _TFFi0'exL i)t1 �'0>1>IDIt t ZONING Commercial Recreational and Marine (CM) Bayside Village Boat Launch & Storage Planned Community (PC9) Single -Unit Residential (R -1) Commercial General (CG) Commercial Recreational and Marine (CM) Restaurant and Office Developments Boat Storage and Mobile Home Park (across East Coast Highway) Linda Isle Residential Neighborhood Service Station and Retail Center Sol Cucina Restaurant and Commercial Parking Lot 43 Ca' 3- Thirty -3 Waterfront Restaurant May 19, 2011 Page 3 Proiect Description The applicant requests to extend the hours of operation for an existing outdoor dining patio from 9:00 a.m. to 9:30 p.m. daily to 9:00 a.m. to 1:OO.a.m, daily. No other changes to the existing restaurant operations are requested or proposed. The applicant intends to continue operating the existing restaurant in a manner consistent with the previous conditions of approval granted by Use Permit No. 3325 (amended) and Accessory Outdoor Dining Permit No. 2007 -001 (Attachment No. PC 2). The existing restaurant is located on the second floor of an 8,409 gross square foot building, The restaurant occupies 4,480 gross square feet of the building, of which 2,560 square feet is considered net public area. The hours of operation of the interior portion of the restaurant are 9;00 a.m. to 2:00 a.m. daily, Background The restaurant use was established in 1968 when use permits were not required for a restaurant. In September 1988, Use Permit No. 3325 was approved by the Planning Commission to allow an increase in the restaurant occupancy and. establish the required off - street parking based on net public area. Amendments to the use permit were approved by the Planning Commission in January 1992 and May 1995. Under the conditions of the existing use permit, the restaurant is allowed to operate as a full - service eating and drinking establishment with alcoholic beverage sales (Type 47 ABC license) from 9:00 a.m. to 2:00 a.m. daily. Sixty -four (64) parking spaces are required during evenings and weekends. In June 2007, the Planning Commission granted approval of Accessory Outdoor Dining Permit No. 2007 -001. The outdoor dining patio is limited to a 636 square feet in area, and a maximum of 37 seats with dining tables only. Elevated counters and barstools are prohibited, and use of the area is required to close by 9;30 p.m. DISCUSSION When the Zoning Code was updated, the requirement for a separate application for accessory outdoor dining was eliminated. Thus, the request to extend the hours of operation granted by Accessory Outdoor Dining Permit No. 2007 -001 requires approval of a new conditional use permit for the overall operations of the existing restaurant. The conditions of approval from the previous use permit and accessory outdoor dining permit have been carried forward, and new conditions have been included related to standard operations for eating and drinking establishments, as well as the requirement that the applicant obtain an Operator License to operate a restaurant in combination with late hours and alcoholic beverage service. 45 Analysis Late Hour Operations Under the provisions of the Zoning Code, the existing Service, Late Hours" eating and drinking establishment to allow late -hour operations, the Planning Commiss potential impacts upon adjacent or nearby uses: 3- Thirty -3 Waterfront Restaurant May 19, 2011 Page 4 restaurant is defined as a "Food . When reviewing an application ion must consider the . following Noise from music, dancing, and voices associated with allowed indoor or outdoor uses and activities, 2. High levels of lighting and illumination; 3. Increased pedestrian and vehicular traffic activity during late night and early morning hours; 4. Increased trash and recycling collection activities 5. Occupancy toads of the use; and 6. Any other factors that may affect adjacent or nearby uses. The existing restaurant is located adjacent to an office building on the southeast, and another restaurant and commercial parking lot on the west. The Linda Isle residential neighborhood is located to the south of the project site across a boating channel. The nearest residence is located approximately 215 feet from the existing restaurant. As previously stated, no changes to the existing restaurant operations are requested or proposed by the applicant with the exception of a change to the closing time of the outdoor dining patio area from 9:30 p.m. to 1:00 a.m. Thus, impacts associated with lighting, increased trash, and occupancy loads of the use are not expected. Dancing is prohibited throughout the entire restaurant, per the Live Entertainment Permit issued to the applicant in February 2006. Incidental background music is allowed, and live entertainment is limited to a maximum of two performers confined to the interior portion of the restaurant building. In order to control noise emanating from the outdoor dining patio, this area was constructed with a full- height combination wall and sound - attenuating window assembly. As conditioned, the windows are required to be closed each day at 9:00 p.m. and may be opened at 8:00 a.m. the following day. Pursuant to the conditions of approval, no live entertainment is permitted in the outdoor dining area. Further, all noise generated by the existing restaurant, including the outdoor dining area, is required to comply with the provisions of the Noise Ordinance (Chapter 10.26) of the Newport Beach Municipal Code (NBMC). i1M 3- Thirty -3 Waterfront Restaurant May 19, 2011 Page 5 There may be an increase in pedestrian and vehicular traffic activity from patrons using the outdoor dining area during late night and early morning hours. However, impacts from this increase in activity would be mitigated due to the location of the existing valet parking pick -up and drop -off area, and the designated smoking area, which are shielded from residences on Linda Isle by the restaurant building. Late Hour Operations: Noise Complaints Use of the outdoor dining patio began in April 2010. In July 2010, the Code Enforcement Division received complaints regarding alleged violations of the conditions of approval. Code Enforcement contacted the applicant and discussed the complaints, and the applicant took corrective action to ensure compliance with the conditions of approval. No further complaints have been received by the Code Enforcement Division since September 2010. The complaints were also forwarded to the Newport Beach Police Department (NBPD) for further investigation. The NBPD reported that after subsequent investigations, as well as interviews with the applicant and the complaining parties, it was evident that the noise was being generated from people on the nearby docks /boats, not necessarily patrons in the restaurant. Further, there was no indication that use of the outdoor dining patio was the cause of the noise complaints. The NBPD reports that it appears that the applicant has taken reasonable steps to mitigate the noise on the docks as complaints to the NBPD have declined. (See Attachment No. PC 3 — NBPD Memorandum dated April 4, 2011.) In response to complaints regarding noise generated from the nearby docks, the Harbor Commission approved a "Temporary Guest Slip Use Program" for the Balboa Marina in February 2011. The plans require that the temporary guest slips be moved from the current location in front of the restaurant site to a point farther west and more central in the marina. The temporary guest slips may only be accessed through an electronically controlled security gate system, which will be set to automatically unlock at 7:00 a.m. and lock at 10:00 p.m. each day. This new program is anticipated to be implemented in early -to -mid summer. Conditional Use Permit Findings In order to grant approval of a conditional use permit, the Planning Commission must make each of the following findings: 1. The use is consistent with the General Plan and any applicable specific plan; 2. The use is allowed within the applicable zoning district and complies with all other applicable provisions of this Zoning Code and the Municipal Code; 3. The design, location, size, and operating characteristics of the use are compatible with the allowed uses in the vicinity; 47 3- Thirty -3 Waterfront Restaurant May 19, 2011 Page 6 4. The site is physically suitable in terms of design, location, shape, size, operating characteristics, and the provision of public and emergency vehicle (e.g., fire and medical) access and public services and utilities; and 5. Operation of the use at the location proposed would not be detrimental to the harmonious and ordeily growth of the City, or endanger, jeopardize, or otherwise constitute a hazard to the public convenience, health, interest, safety, or general welfare of persons residing or working in the neighborhood of the proposed use. Staff believes that findings for approval can be made, and facts in support of the required findings are included in the draft resolution (Attachment PC No. 1). The operation of a "Food Service, Late Hours" use with alcoholic beverage sales is consistent with the purpose and intent of the Recreational and Marine Commercial (CM) land use designation of the General Plan, and Commercial Recreational and Marine (CM) Zoning District. Updated conditions of approval related to standard operations for eating and drinking establishments with alcoholic beverage sales have been included for the overall operations of the existing. restaurant. With adherence to the proposed conditions of approval, the project will comply with Zoning Code standards. Conditions are included related to on -sale alcoholic beverage activities, including training of personnel who sell or serve alcoholic beverages, and the provision of security personnel while live entertainment is offered. Adequate on -site parking is maintained and provided by complimentary valet service during all hours of operation. The location of the existing valet parking pick -up and drop -off area, and the designated smoking area have proven effective in eliminating noise impacts to nearby residents. The design and construction materials of the outdoor dining patio, and the requirement that the windows be closed at 9:00 p.m., prevent excessive noise from emanating from this area. The NBPD indicates it has no objections to the applicant's request to extend the hours of operation on the outdoor dining patio. Based on reports from the Code Enforcement Division and the NBPD, the applicant has demonstrated the continued willingness and ability to control noise generated by patrons of the restaurant. To ensure the change in hours of operation does not create a detrimental impact during late hours, the applicant (and any future operators of the existing eating and drinking establishment) shall be required to obtain an Operator License issued by the Chief of Police pursuant to Chapter 5.25 of the NBMC. The entire operations will be subject to the Operator License. Additionally, the applicant will be required to take reasonable steps to discourage and correct objectionable conditions that constitute a nuisance to areas surrounding the restaurant and adjacent properties during business hours. If the operator is unable to abide by the conditions of approval, or prevent objectionable conditions from occurring, the NBPD will have the authority to modify, suspend, or revoke the operator's ability to maintain late -hour operations, or require other corrective measures. 42 3- Thirty -3 Waterfront Restaurant May 19, 2011 Page 7 Alternatives The Planning Commission may suggest specific operational changes that are necessary to alleviate concerns. If the changes are substantial, the item should be continued to a future meeting. 2. If the Planning Commission believes that there are insufficient facts to support the findings for approval, the Planning Commission should deny the application. Environmental Review The. project is categorically exempt under Section 15301 of the California Environmental Quality Act (CEQA) Guidelines - Class 1 (Existing Facilities), because .the change in hours of operation does not involve an expansion of an existing use. Public Notice Notice of this hearing was published in the Daily Pilot, mailed to all property owners within 300 feet of the property, and posted at the project site a minimum of 10 days in advance of this hearing consistent with the Municipal Code. Additionally, the item appeared on the agenda for this meeting, which was posted at City Hall and on the City website. Prepared by: Submitted by., � A - Ja et .�Ohr son Br� Gregg R irez A� o I to lanner Senior Planner ATTACHMENTS PC 1 Draft Resolution with Findings and Conditions of Approval PC 2 Use Permit No. 3325 & Accessory Outdoor Dining Permit No. 2007 -001 PC 3 NBPD Memorandum PC 4 Project plans and photographs PC 5 Applicant's written statement F: \UserS\PLN\Shared \PA's\PAs - 2011 \PA2011 - 041 \3 - Thirty -3 PC Staff Rptldoex 4_9 50 Attachment No. PC 1 Draft Resolution with Findings and Conditions of Approval 151 52 RESOLUTION NO. A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH APPROVING CONDITIONAL USE PERMIT NO. UP2011 -007 FOR AN EATING AND DRINKING ESTABLISHMENT LOCATED AT 333 BAYSIDE DRIVE (PA2011- 041) THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS FOLLOWS: SECTION 1. STATEMENT OF FACTS. An application was filed by Jeff Reuter, with respect to the property located at 333 Bayside Drive, and legally described as Lot B of Parcel Map Book 16 Page 10 (Resubdivision No. 249), requesting approval of a new conditional use permit. 2. The applicant filed an application requesting a new conditional use permit to extend the hours of operation granted by Accessory Outdoor Dining Permit No. 2007 -001 for an existing outdoor dining patio from 9:00 a.m. to 9:30 p.m. daily to 9:00 a.m. to 1:00 am. daily. No other changes to the existing restaurant operations were requested or proposed. 3. The subject property is located within the Commercial Recreational and Marine (CM) Zoning District and the General Plan Land Use Element category is Recreational and Marine Commercial (CM). The subject property is located within the coastal zone. The Coastal Land Use Plan category is Recreational and Marine Commercial (CM -A). 6. A public hearing was held on May 19, 2011, in the City Hall Council Chambers, 3300 Newport Boulevard, Newport Beach, California. A notice of time, place and purpose of the meeting was given in accordance with the Newport Beach Municipal Code (NBMC). Evidence, both written and oral, was presented to, and considered by, the Planning Commission at this meeting. SECTION 2. CALIFORNIA ENVIRONMENTAL QUALITY ACT DETERMINATION. This project has been determined to be categorically exempt under the requirements of the California Environmental Quality Act under Class 1- Existing Facilities, 2. This exemption applies to existing facilities involves no expansion of the existing use. involve an expansion of the existing use. SECTION 3. REQUIRED FINDINGS. where it can be demonstrated the project The change in hours of operation does not In accordance with Section 20.48.030 of the Newport Beach Municipal Code, the following finding and facts in support of such finding is set forth: 53 Planning Commission Resolution No. _ Page 2 of 11 Finding: A. The use is consistent with the purpose and intent of Section 20.48.030 (Alcohol Sales) of the Zoning Code. Facts in Support Finding: A -1. The project has been reviewed and conditioned to ensure that the purpose and intent of Section 20.48.030 (Alcohol Sales) of the Zoning Code is maintained and that a healthy environment for residents and businesses is preserved. The service of alcoholic beverages is intended for the convenience of customers of the restaurant. Operational conditions of approval recommended by the Newport Beach Police Department (NBPD) relative to the sale of alcoholic beverages will ensure compatibility with the surrounding use and minimize alcohol - related Impacts. A -2 Pursuant to Chapter 5;25 :of the NBMC „the. project has been conditioned J require that the applicant, as' 110 as any future.opeiators of the `existing eating and drinking establishment, obtain. an Operator License toensure theestablishment is operated in a safe manner. In accordance with Section .20.20.020 of.` the Zoning Code, eating an drinking establishments clash as ed "Food Service, Late Hours” require.'. p.0pproval of a,conditional use permit within }_he Commercial Recreational and Marine `(CM) Zoning District. In accordance with Section 20;52.020.F of the Zopmg Code, the following findings and facts in supportof such findings areset forth: Finding:. B. The us e is consistent with the General Plan and any applicable specific plan. Facts in Support of Finding: B -1. The Recreational and Marine Commercial (CM) land use designation of the General Plan is intended to encourage and provide for mutually supportive business and visitor - serving uses. The operation of a "Food Service, Late Hours" use with alcoholic beverage sales is consistent with the purpose and intent of this land use designation. B -2. Food service uses are expected to be located in commercial areas, and are complementary to the existing commercial and residential uses in the area. Such uses are frequented by visitors, tenants of the nearby commercial uses, and residents alike. B -3. The subject property is not part of a specific plan area. Finding: C, The use is allowed within the applicable zoning district and complies with all other applicable provisions of this Zoning Code and the Municipal Code, Tmpif: 03/08/11 54 Planning Commission Resolution No. _ Page 3 of 11 Facts in Support of Finding: C -1. The subject property is located in the Commercial Recreational and Marine (CM) Zoning District, and eating and drinking establishments classified as "Food Service, Late Hours" require the approval of a conditional use permit. C -2. As conditioned, the project will comply with Zoning Code standards for eating and drinking establishments. Conditions are included related to on -sale alcoholic beverage activities, including the training of personnel, and the provision of security personnel while live entertainment is offered. C -3. Pursuant to Chapter 5.25 of the NBMC, the project has been conditioned to require the applicant, and any future operator of the eating and drinking establishment, to obtain an Operator License from the NBPD in order to maintain operating hours beyond 11:00 D.M. D The design, tocatron,'size, and-operatinq.characteristics of the use are compatible with D -1. ;The project has been reviewed and conditioned to ensure that potential conflicts with the surrounding land' uses are minimized, to the extent possible to maintam'a healthy D -2. I Adeq'date parking is`rnaintained on =;site and provided by';bomplimentary valet service during all hours of operation. D -3. The location of the valet parking pick -up and drop -off area, and the designated smoking area, is shielded from the residences by the restaurant building, thereby mitigating noise impacts from this activity. D -4. The design and construction materials of the outdoor dining patio prevent excessive noise from emanating from this area. As conditioned, the sound attenuating windows are required to be closed from 9:00 p.m. to 8:00 a.m. A condition of approval is included requiring that recorded music or other types of sound amplification within the outdoor patio area shall only be audible to the audience within the patio area, and shall cease after the hour of 10:00 p.m. daily. Finding: E. The site is physically suitable in terms of design, location, shape, size, operating characteristics, and the provision of public and emergency vehicle (e.g., fire and medical) access and public services and utilities. Tmplt: 03108/11 1515 Planning Commission Resolution No. Page 4 of Facts in Support of Finding: E -1. This is an existing eating and drinking establishment that has existed in this location since 1968, and the project site has proven to be physically suitable in size to accommodate the use. E -2. The project site is located at the southwest corner of Bayside Drive and East Coast Highway, and is surrounded by similar commercial uses located to the west, and the southeast of the use. This is an appropriate location for an eating and drinking establishment. The use is complementary to the existing commercial uses in the area, as well as the residential uses located to the south of the project site, E -3. The Traffic Engineer has previously reviewed the configuration of the parking lot, as well as the valet parking plan, and has determined the parking lot design functions safely and does not prevent emergency vehicle access to the establishment. E -4 The 'site Is'cprrently served by public services:. and utilities. Finding. F. Operation of'the use.. at. the location ,rproposed would not be detnme.rfal to the harmonious and orderly growth of the, City, or endanger, Jeopardlze, or ".othenwise constitute a hazard .ao fhe public co nvenrenco, health,.. interest, safety, or general Welfare of Re {sons residing or workrn� m ahe neighborhood of the proposed use. I QyL. III yUpwylyyp1 II Iy1111k :a - F -1. The project has been reviewed and conditioned to`'ensure the continued operation of the existing eating and drinking establishment will not be detrimental to the community. F -2. An increase in pedestrian and vehicular activity from patrons using the outdoor dining area during late night and early morning hours may occur. However, impacts from this increase in activity would be mitigated due to the location of the existing valet parking pick -up and drop -off area, and the designated smoking area, which are shielded from residences on Linda Isle by the restaurant building. F -3. The applicant has operated the existing eating and drinking establishment in this location since 2004, and has demonstrated the continued willingness and ability to control noise generated by patrons of the restaurant. The applicant will be required to obtain an Operator License from the NBPD in order to extend the hours of operation of the outdoor dining patio to 1:00 a.m. The Operator License will provide for enhanced control of noise, loitering, litter, disorderly conduct, parking /circulation, and other potential disturbances resulting from the existing establishment, and will provide the NBPD with means to modify, suspend, or revoke the operator's ability to maintain late - hour operations if objectionable condition occur. Tmpll: 03/08111 50 Planning Commission Resolution No. _ Paae 5 dl 1 SECTION 4, DECISION. NOW, THEREFORE, BE IT RESOLVED: The Planning Commission of the City of Newport Beach hereby approves Conditional Use Permit No. UP2011 -007, subject to the conditions set forth in Exhibit A, which is attached hereto and incorporated by reference. 2. This action shall become final and effective fourteen days after the adoption of this Resolution unless within such time an appeal is filed with the City Clerk in accordance with the provisions of Title 20 Planning and Zoning, of the Newport Beach Municipal Code. 31 This resolution supersedes Use Permit No. 3325 (amended) and Planning Commission Resolution No. 1724, which upon vesting of the rights authorized by this Conditional Use Permit No. UP2011 -007, shall become null and void. BY: Earl McDaniel, Chairman BY: Michael Toerge, Secretary Tmpll: 03/08/11 THIS 57 Planning Commission Resolution No. Paae 6 of 11 EXHIBIT "A" CONDITIONS OF APPROVAL (Project- specific conditions are in italics) PLANNING 1. The development shall be in substantial conformance with the approved site plan, floor plans and building elevations stamped and dated with the date of this approval. (Except as modified by applicable conditions of approval.) 2. Conditional Use Permit No. 2011 -007 shall expire unless. exercised within 24 months from the date of approval as specified in Section 20.54.060 of the Newport Beach Municipal Code (NBMC), unless an extension is otherwise granted. 3. The hours of operations shall be limited to between 9:00 a.m. and 11:00 p.m. daily, un less: the applicant/operator, including any future operator, . secures and maintains an Operator. License issued by the Chief of Police, pursuant to Chapter 5.25:6f 'the <NBMC. In no case shat/ the irterior portion of the-66t, ig and drinking establishment bepermitted to operate beyond the hour of 2:00 a m..daity The outdoor dining patio shall not be permitted to operate beyond the' hour of 1 :00 a.m., daily. 4. ,.The sound attenuating windows on the outdoor.< dining patio shait be closed from 9:00 p.m. to 8:00'a ',m. dai1V. 5. °:All doors at of for the ingress patrons and shall 6. The Operator License required to be obtained pursuant to Condition No. 3 and Chapter 5.25 may be subject to additional and/or more restrictive conditions to regulate and control potential late -hour nuisances associated with the operation of the establishment. 7. Full meal service shall be provided and available for ordering at all times the establishment is open for business. 8. The outdoor dining area shall be used in conjunction with the eating and drinking establishment. No special events /promotional activities shall be allowed within the area of the outdoor dining patio. 9. The outdoor dining patio shall be limited to 636 square feet in area. 10. The outdoor dining area shall be limited to a maximum of 37 seats, including disabled seats/table space. The seating and dining in the outdoor dining patio shall be limited to dining table height (approximately 30 inches) and the use of the elevated counters and barstools is prohibited. 11. All employees shall park on on -site. Tmplt: 03/08/11 152 Planning Commission Resolution No. _ Paae 7 of 11 12. The net public area of the interior portion of the eating and drinking establishment shall not exceed 2,560 square feet. 13. A minimum of 34 parking spaces shall be provided on -site for the daytime operation of the eating and drinking establishment Monday through Friday. A total of 64 parking spaces shall be provided on -site for all other hours of operation of the establishment (one parking space for each 40 square feet of net public area). 14. Prior to implementation of the late hours on the outdoor dining patio, the applicanUoperator shall submit a valet parking plan for review and approval by the Public Works Department and Community Development Depatiment/Planning Division. The valet parking plan shall demonstrate that adequate on -site parking, vehicular circulation and pedestrian circulation systems are provided. The valet parking plan shall include the location of valet parking pick -up and drop -off area so as to be shielded from nearby residences on Linda Isle by the subject restaurant building in order to minimize the transmission of noise to Linda Isle to the maximum extent feasible. The parking plan shall include awaiting /quewng area for guests dropping off or picking up automobiles from valet parking and a designated smoking area for patrons of the restaurant 15 The applicanUoperator shall conspicuously post and maintain signs at all outdoor dlning, waiting, smoking and:parlang areas indicating to'patrons the proximity of the restaurant and public .dock :;and boat;'sgo areas to the:-residential areas, requesting patrons be courteous tq residential neighbors while outside;the establishment. 16. ""..T .- e project srsubjegt to all applicable Gity ordinances, policies, and standards, unless specifically waived or :modified,by the conditions of approval. 17. The, applicanUoperator shall '.66mpjy with all federal, state, and local laws. Material fo fl-06'@ any of those laws- in'ediihection with the use may be cause for4evocation of this Conditional Use Permit. 18. The applicant/operator shall maintain a copy of the most recent City permit conditions of approval on the premises and shall post .a notice that these are available for review on the premises, The posted notice shall be signed by the permittee. 19. This approval was based on the particulars of the individual case and does not in and of itself or in combination with other approvals in the vicinity or Citywide constitute a precedent for future approvals or decisions. 20. This Conditional Use Permit may be modified or revoked by the City Council or Planning Commission should they determine that the proposed uses or conditions under which it is being operated or maintained is detrimental to the public health, welfare or materially injurious to property or Improvements in the vicinity or if the property is operated or maintained so as to constitute a public nuisance. 21. Approval of Conditional Use Permit No. 2'011 -007 is for the operation of an eating and drinking establishment defined as "Food Service, Late Hours" per Title 20 of the Tmpll: 03/08/11 159 Planning Commission Resolution No. _ Page 8 of 11 NBMC, and does not permit or authorize the use or operation of a bar, tavern, cocktail lounge, nightclub or commercial recreational entertainment venue, 22. Any change in operational characteristics, expansion in area, or other modification to the approved plans, shall require an amendment to this Conditional Use Permit or the processing of a new Conditional Use Permit. 23. The type of alcoholic beverage license issued by the California Board of Alcoholic Beverage Control shall be a Type 47 in conjunction with the service of food as the principal use of the facility. Any upgrade in the alcoholic beverage license shall be subject to the approval of an amendment to this application, and may require the approval of the Planning Commission. 24. All landscaped areas shall be maintained in a healthy and growing condition and.shall receive regular pruning, fertilizing, mowing and trimming. All landscaped areas shall be kept free of weeds and debris. All irrigation systems shall be kept operable, including adtu'stments, replacements;;repairs, and.cleaning as part of regt ?lar main tenance 25 Water should not be used to-clean payed surfaces such as sidewalks, driveways, parking areas, etc except to all immediate safety or sanitation hazards: 26 The washing of the outdoor dining pati6.-With arty cleaning solutions or the use of high pressure or steam cleanina:devices is prohibited, 27, incompliance with not orth impact' on surrounding land ` uses' or environm Development Director may order the dimming of upon finding that the site is excessively illuminated. of the Zoning Code: The site luminance recommendations of the rica, or, if in the opinion of the :creates an unacceptable negative ental resources. The 'Community light sources or other remediation 28. All noise generated by the existing eating and drinking establishment use shall comply with the provisions. of Chapter 10.26 and other applicable noise control requirements of the Newport Beach Municipal Code. The maximum noise shall be limited to no more than depicted below for the specified time periods unless the ambient noise level is higher: Tmplt 03108/11 M Between the hours of Between the hours of 7:00 a.m, and 10:00 p.m. 10:00 p.m. and 7:00 a.m. Measured at the property line of commercially zoned property: 65 dBA 60 dBA Measured at the property line of residentially zoned property: 55 dBA 50 dBA Measured in the interior of a 45 dBA 40 dBA residential structure Tmplt 03108/11 M Planning Commission Resolution No. _ Paqe 9 of 11 29. The applicant shall retain a qualified engineer specializing in noise /acoustics to monitor the sound generated by the outdoor dining activity to insure compliance with these conditions, if required by the Community Development Director. 30. The applicant/operator of the facility shall be responsible for and shall actively control any noise generated by the subject facility including, but not limited to, noise generated by patrons, food service operations, and mechanical equipment. 31. Should the property be sold or otherwise come under different ownership, any future owners or assignees shall be notified of the conditions of this approval by either the current business owner, property owner or the leasing agent. 32. No live entertainment shall be allowed in the interior of the eating and drinking establishment unless the operator has first obtained a permit from the City. 33. No. outside paging system,or loudspeaker device shall be used in conjunction is 61 establishment. 34. No live entertainment shall be permuted in the outdoor dining area, Recorded music or other types ofsound ampiification within the outdoor dini,4 area shall only be audible to the audience within this area, and shall cease after the hourof 90:00 p.m dal y 35. No dancing shall be allowed on the premises of the eating and drinking establi shment. 36. The applicanf/operafor shall provide licensed secunly ,personnel while offering live entertainment. A comprehensive security plan for the permitted uses shall be submitted for renew ;and appr.'oval by the Newport Beach: Pobce Department (NBPD). The procedures included,n the plan and any recommerdat�ons made by the N81?D shall be implemented and adhered to for the life of the Conditional'Use Permit. 37. All trash shall be stored within the building or within dumpsters stored in the trash enclosure (three walls and a self - latching gate) or otherwise screened from view of neighboring properties, except when placed for pick -up by refuse collection agencies. The trash enclosure shall have a decorative solid roof for aesthetic and screening purposes. 38. Trash receptacles for patrons shall be conveniently located both inside and outside of the establishment, however, not located on or within any public property or right -of- way. 39. The exterior of the business shall be maintained free of litter and graffiti at all times. The owner or operator shall provide for daily removal of trash, litter debris and graffiti from the premises and on all abutting sidewalks within 20 feet of the premises. 40. The applicantloperator shall ensure that the trash dumpsters and /or receptacles are maintained to control odors, This may include the provision of either fully self- contained dumpsters or periodic steam cleaning of the dumpsters, if deemed Tmpll: 03/08111 01 Planning Commission Resolution No. Page 10 of 11 necessary by the Code Enforcement Division. Cleaning and maintenance of trash dumpsters shall be done in compliance with the provisions of Title 14, including all future amendments (including Water Quality related requirements). 41. Deliveries and refuse collection for the facility shall be prohibited between the hours of 10:00 p.m. and 8:00 a.m., daily, unless otherwise approved by the Community Development Director, and may require an amendment to this Use Permit, 42. Storage outside of the building in the front or at the rear of the property shall be prohibited, with the exception of the required trash container enclosure. 43. A Special Events Permit is required for any event or promotional activity outside the normal operational characteristics of the approved use, as conditioned, or that would attract large crowds, involve the sale of alcoholic beverages, include any form of on- site media broadcast, or any other activities as specified in the Newport Beach Municipal Code to require such permits. 44. Kltdhen exhaust fans 'shall be installed /maintained in accordance with the Uniform ;Mechanical Code ::The issues with regard to. the control, of smoke and odor shall be directed to the South.`.Coast Air Quality Management District, 45. All exists shall remain.. free of obstructions and available for ingress and egress at all times. 46. Strict adherence to maximum occupancy limits is required 47. The use.. of pnvate :;(enclosed), "VIP" rooms or any other temporary or permanent epclosures separate from public areas;are prohibited, 48. All owners, managers and employees selling, serving or giving away alcoholic beverages shall undergo and successfully complete.a certified training program in responsible methods and skills for selling alcoholic beverages. The certified program must meet the standards of the California Coordinating Council on Responsible Beverage Service or other certifying /licensing body, which the State may designate. The establishment shall comply with the requirements of this section within 180 days of the issuance of the certificate of occupancy. Records of each owner's, manager's and employee's successful completion of the required certified training program shall be maintained on the, premises and shall be presented upon request by a representative of the City of Newport Beach. 49. Any event or activity staged by an outside promoter or entity, where the restaurant owner or his employees or representatives share in any profits, or pay any percentage or commission to a promoter or any other person based upon money collected as a door charge, cover charge or any other form of admission charge, including minimum drink orders or sale of drinks is prohibited. 50. No alcoholic beverages shall be consumed on any property adjacent to the licensed premises under the control of the license. Tmpil: OW8111 02 Planning Commission Resolution No. 51. No "happy hour' type of reduced price alcoholic beverage promotion shall be allowed except in conjunction with food service available from the full service menu. There shall be no reduced price alcoholic beverage promotion after 9:00 p.m. 52. "VIP" passes or other passes to enter the establishment, as well as door charges, cover charges, or any other form of admission charge, including minimum drink order or sale of drinks is prohibited. 53. The quarterly gross sales of alcoholic beverages shall not exceed the gross sales of food and retail sales during the same period. The licensee shall maintain records that reflect separately the gross sale of food and the gross sales of alcoholic beverages of the licensed business. Said records shall be kept no less frequently than on a quarterly basis and shall be made available to the NBPD on demand. 54. No on -site radio, television, video, film or other media broadcasts from the establishment that includes the service: - ervice of alcoholic beverages shall be perTnitted witho ut flrstiobtaining an `approved Special Event :Permit issued by the City? This prohlbltlon:of media ;broadcasts; includes recordings.to be broadcasted at a later time. . 55. All signs sha.li,be in conformance with the provisions of Chapter 20.42 of the Newport Beach Municipal Code. 56. There shall be no exterior advertising or signs of any kind or type, including :advertising directed to the exterior from within promoting &Jndlcating the availablhty.of, alcoholic beverages Interior displays of alcoholic - beverages or signs that are clearly; visible to the exterior shall constitute a vielatic- of this condition. 57. No games or contests requiring or Involving the consumption of alcoholic beverages shall be permitted. 58. To the fullest extent permitted by law, applicantloperator shall indemnify, defend and hold harmless City, its City Council, its boards and commissions, officials, officers, employees, and agents from and against any and all claims, demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever which may arise from or in any manner relate (directly or indirectly) to City's approval of the 3- Thirty -3 Waterfront Restaurant including, but not limited to, the Use Permit No. 2011 -007. This indemnification shall include, but not be limited to, damages awarded against the City, if any, costs of suit, attorneys' fees, and other expenses incurred in connection with such claim, action, causes of action, suit or proceeding whether incurred by applicant/operator, City, and/or the parties initiating or bringing such proceeding. The applicant/operator shall indemnify the City for all of City's costs, attorneys' fees, and damages which City incurs in enforcing the indemnification provisions set forth in this condition. The applicant/operator shall pay to the City upon demand any amount owed to the City pursuant to the indemnification requirements prescribed in this condition. Tmplt: 03/08/11 Os 04 Attachment No. PC 2 Use Permit No. 3325 (amended) and Accessory Outdoor Dining Permit No. 2007 -001 05 00 elbMMISSIONERS 'LGG��F�aNGy C`�NyOG9F September 22, 1988 CITY 6F NEWPORT BEACH MINUTES.. ..MOLL CALL INDEX'.. ngress /ogress on to West Coast Highway. She said that , t parking lot is used to avoid the traffic signal at Sup kor Avenue and West Coast Highway, Commissioner Debay tated that she measured parking spaces that are under.e ht feet in width and not labeled as compact . parking s ces, Ayes * * Notion was vo d on to deny Use Permit No. 3323 subject * to the findings n'Exhibit "B ". NOTION CARRIED, Noes FINDINGS: 1, That the proposed o -site parking is inadequate for the subject take -ou restaurant and further that ' said restaurant is loc tod adjacent to a residen- tial area where the exi ing demand for on- street parking is,very high, 2. That the, proposed take -out estaurant. is not compatible with the surrounding residential land uses. 3. The approval of Use Permit No, 3323 wil under the ' circumstances of the case, be detriment to the health, safety, peace, morals, comfort and eneral welfare' of persons residing or working i the - neighborhood— and -will be_ detrimental— and—injur us- — — — _ to property "or improvements in the neighborhood a Use Permit No 3325 (Public Hearing) Item NOA Request to increase the allowable occupancy of the UP3328 former Baxter's Restaurant facility, and to establish a new parking requirement based upon "not public area ", Approved The proposal also requests to change the operational characteristics of the former restaurant facility which served breakfast, lunch, and dinner, and maintained a cocktail lounge with live entertainment and dancing. The proposed restaurant will 'consist of a bar and a dining room with. incidental background music, and will only be open for business between 5:00 p.m. and 2:00 a-,m, daily and for. Sunday brunch. The proposal also. includes the utilization of on -site parking spaces and _ reciprocal parking on adjoining commercial property, and . _ a modification to the Zoning Code so as to permit a. valet parking service, -11- 1;( 07 CdMMISSIONERS } J MINUTES September 22, 1988 Cliff OF NEWPORT BEACH ROLL CALL INDEX LOCATION: Lots A and B of Parcel Map 6 -10 (Resubdivision No. ,249) and a portion of Lot 1, Tract No. 5361, located at 333 Bayside Drive, on the southwesterly . corner of East Coast Highway and Bayside Drive, across from the De Anza Mobile Home Park. " ZONE: C -1 -H APPLICANT: Hanes Prager, Newport Beach OWNER: Marvin Burton, Newport Beach The public hearing was opened in connection with this item, and Mr. Hans Prager, applicant, appeared.before the Planning Commission, Mr. Prager described the New England themed "Yankee Tavern" Restaurant, and he stated that said restaurant will be open during the dinner hours and there are plans to open for Sunday Brunch. Mr. Marvin Burton, property owner. Appeared before the Planning' Commission, Mr. Burton stated that he had conferred with the 'applicant regarding the findings and conditions in Exhibit "A ", and that they had agreed with same, Mr. Burton distributed letters from Mr..Wambaugh, -' — -Linda Isle, and "'Ms'; 'Lyiine` Valentine; occupanC of the ground _floor on the adjacent property south of the subject site, who are in support of the subject ' application, ' In response to a question posed by Commissioner Merrill, Mr. Prager replied that the restaurant is proposed to be ' open by February 1, 1989. In response to a question posed by James Hewicker, . Planning Director, Mr. Prager replied that the rostaurant will employ their own valet service. There being no others desiring to appear and be heard, the public hearing was closed at this time. Motion was made to approve Use Permit No. 3325 subject Motion a to the findings and conditions in Exhibit- "A ". Commissioner Pers6n stated that he would support the motion based on the applicant's' successful record as a restaurateur. ip. Newport:.Beach. 12 02 , COMMISSIONERS .. aP`�i�P`�NOyP�`PaNyot99� September 22, 1988 CITY OF NEWPORT BEACH MINUTES .ROLL CALL INDEX Commissioner Di Sano concurred with the 'foregoing statement, in support of the use permit application. Chairman Pomeroy stated his support of the motion, and the characteristics of the restaurant, Motion was voted on to approve Use Permit No, 3325 ',. subject to the findings and conditions in Exhibit "A ", . All Ayes MOTION CARRIED, FINDINGS: 1, That the subject proposal is consistent with the Land Use Element of the General Plan and with the Local Coastal Program and is- compatible with the surrounding land uses. 2. That the project will not have any significant environmental impact. 3. That the waiver of the development standards as they pertain to walls, utilities, parking lot illumination, and landscaping will not be detrimental to adjoining properties, 4. That the restaurant will be open only during those hours 'when office uses on the site and in the adjoining building.are closed £or business, 5. That the design of the proposed improvements will not conflict with any 'easements acquired by the public at large for access through or use of any pioperty. within the proposed development. 6. That public improvements may be. required of a developer per Section 2b.80.060 of the Municipal Code, 7. That the approval of Use Permit No. 3325 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 to-the general welfare of the City. That the approval of a modification to the Zoning .8. Code, s4 as to allow the use: of valot parking will not, under. the circumstances of the particular case, be detrimental to the health, safety, peace, 13 C0M.MISSIONERS ' a ymG'A�yco 9a p1 Q D 1\q ydO F � ti 1 i September 22, 1988 CITY OF NEWPORT REACH MINUTES ROLL CALL INDEX comfort and general welfare of persons. residing or ' working in the neighborhood of such prposed use or be detrimental or injurious to property and improvements in the neighborhood or the general welfare of the City and further that the proposed modification is consistent with the legislative intent of Title 20 of this Code. CONDITIONS: 1. That development shall be in substantial conformance with the approved plot plan, floor plan, and elevations axcapt as provided in the following conditions. 2. That all employees of the restaurant shall park in the shared, 'on -site parking lot. 3. That 64. parking spaces shall be provided for the restaurant during restaurant operating hours. 4. That oneite ,parking, vehicular circulation 'and - .pedestrian 'circulation systems be subject to . further review by the Traffic Engineer. 5. That. handicapped parking shall be ,provided as -------- - - - - -- required -by -- Code, - ---and- that - -the -- required number -of .handicapped 'parking spaces shall be designated solely for handicapped self parking and shall be identified in a manner acceptable to the City Traffic Engineer. Said parking spaces shall be accessible to' the handicapped at all times. A handicapped sign on a post shall be required for each handicapped parking space, 6. That all improvements be constructed as required by Ordinance and the Public Works Department. 7. That all.trash areas and 'mechanical equipment shall ' be screened from--views from Bay'side Drive, East Coast I{ighway, and adjoining properties. 8. That the operating hours of the restaurant shall be 5:00 p.m. to 2:00 a.m. Monday through Saturday, and 9:00 a,m, to 2:00 a.m, on Sundays. 9. That grease interceptors shall be installed on all fixtures on:the restaurant facility, where. grease ' may be introduced into the drainage system in accordance with the provisions of the Uniform 14 .. S oUV. COMMISSIONERS PQ�Oy�- %�OMyO 3. 1 w. September 22, 1988 MINUTES ROLL CALL INDEX ' Building Code., unless otherwise provided by the Building Department and the Public Works Department. 10. That kitchen exhaust fans shall be designed to control smoke and odor to the satisfaction of the Building Department. 11. That a washout area for refuse containers be provided is 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 and the Public Works Department, . 12. That a trash compactor be provided in the restaurant facility. 13. That restaurant development standards pertaining to walls, landscaping, utilities, .and parking lot illumination shall be waived. Said waiver does not include the required .public improvements. ' 14• That Coastal Commission approval shall be obtained _ prior to the issuance of building permits. 15. That the Planning Commission may add to 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 amendment causes injury, or is. detrimental Co the health, safety, peace, morals, comfort, or general welfare of the community. 16. That this use permit shall expire unless exercised within 24 months from the date'' of approval as specified in Section 20.80.090 A of the Newport Beach Municipal Code. •k * :t -15- i �n COMMISSIONERS � • Sri 11 a 1 _ � January 9,. 199/ MINUTES CITY 'OF NEWPORT BEACH 7pLL CALL INDEX . 7.' That , the Planning, Commission may add or modify co `tions of approval to. the use 'permit,;or recommend to. the Ci ouneil the revocation of this. use permit, upon a determinatio' at the operation which.is the subject of this . use Permit, cause ' 'ury, or is detilmcntal. to the health, safety, peace, morals, ort or general welfare of the community. That this use pei�tiifsfiall expire f£ not. rclsed within 24 months from the date of approval 'as spec: in Section 20,80,090A'of the Newport Beach Municipal Co e. Ilse Permit No' 3325 (Amended) (Public Hearing) item No,4 Request to amend a previously approved use permit which OP3325A . permitted a change in the allowable occupancy of an existing Approved restaurant located in the C -IrH Distfict. .Said approval also included: a change in the: operational ,characteriWcs of the restaurant so as to include a: bar and dining area.with background music; the establishment o£, a new parking requirement; the retention of -a- -valet 'pailang service;�the— establishment -o£ -- -- - -" - — operational hours from 5:00 p.m. to 2 :00 a,m. Monday through Saturday and 9:00 a.m. to 2:00 am. on Sunday; and the continued use of a. reciprocal parking arrangement with an adjoining commercial property. The proposed amendment includes a request to amend: Condition No: 8 'of the existing use permit so as, to, permit the restaurant to be open for Saturday hmcb, LOCATION: Lots A and B of Parcel Map 6.10 (Resubdivision No. 249) and a portion of lot 1, Tract No.. 5361, located at 333 Bayside Drive,. on the southwesterly side of Bayside. Drive, between East Coast Highway, and Linda Isle Drive, ONE: C-1-H. APPLICANT; Hans Prager, Newport Beach OWNER: Marvin Burton, Newport Beach . 9 COMMISSIONERS d G Y• January 9, 1992 MINUTES CITY` OF . NEWPORT 'BEACH 20L1_ CALL. INDEX zanies Hewicker, Planning.Directoi•;..statcd tbat two letters of opposition_ from Linda, Isle residents were .received by; staff regarding: the request.- The concerns expressed may be a ' misunderstanding:of the.public ho {ice; inasmuch as the.restaurant ct"Tently is open until 2 :00 a.m, and the proposed application only establisbes a innch hour on.Siturdays. Iu. response: to .a que9ti6n-posed'by Commissioner Edwards, Mr. 'Hewicker explained that no noise problems have been registered with .the Police 'Department by -Linda Isle residents towards the -subject restaurant. Tli'e public, hearing was opened in connection with this- item; and Mr. Jerry'King appeared before the Planning 'Commission on . behalf of the applicant, and he concurred with.the findings and conditions in.Fxhigit "N' There being no others desiring to appear and be heard, the public hearing was closed at this time; Commissioner Debay suggested that Mr. King notify the concerned - -- — — -- — _ — -- Linda - -Isle— residents —for_. tbe.. p1l_rpose of clariilcation of the restaurant's operating. hours...•. Motipn Motion was made and voted on to approve Use Permit No. 3325 Ara Ayes subject to the findings and conditions in.Exhibit "A '. MOTION CARRIED. FINDIN L. That the proposed development is consistent with the Land Use Element of the General Plan and the Local Coastal Program, Land. Use plan, and is compatible with the surrounding land uses. 2. That the project will not have any significant,-environmental impact. 3. That adequate parking is available to accommodate the proposed change in the hours of operation of the restaurant. 4. That the waiver of the development standards as they pertain to walls, utilities, parking lot Illumination, and -Ia . 73 January 9, 1992 COMMISSIONERS _ MINUTES d ' CITY OF NEWPORT BEACH . Rb L CALL INOEX . landscaping; mill :not be detrimental to adjoining properties., 5; Tliat,the approval of Use Permit No. 3325(Amended) will not, under the circumstances of this case,-be detrimental to .the :health, safety, :peace,. Morals, comfort. and general ...welfare. of residing aqd working in the :neighborhood improvements or detrimental `be 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 and floor plan. 2. . .'Mat all pfevious applicable conditions of approval for Use Permit No. 3325 shall be fulfilled. 3. That the hours of operation of the restaurant shall be from 5:00 p.m. to 2:00 a.m. Monday through Friday and from 9:00 a.m. to 2:00 a.m, on Saturday and Sunday. . 4. That Coastal Commission approval- shall.be obtained prior to the.ostab1Ubmcnt of.ihe Saturday lunchtime operation of the restaurant, 5. That a minimum of one parking space for each 41± square feet of "net public area" (62 spaces) shall be provided during' the Saturday lunch operation of the restaurant and one parking space for each 40 square.feet of "net public area" for all other hours of the restaurant's operation. 6. That the Planning Commission may add or modify conditions of approval to the 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. 7. That this use permit shall expire if not exercised within 24 months from the date of ,approval as specified in Section 20.80:090A of the Newport Beach Municipal -Code. • -11- 74 )) COMMISSIONERS CITY OF NEWPORT BEACH MINUTES May 4, 1995 ROLL INDEX CALL v -entertainment shall be confined tot the interior of the structure, an further that when the live entertainment is performed, all windows d doors within the restaurant shall be closed except when ente i g and leaving by the main entrance of the restaurant. 4. That no dancing shall be permitted in the restaurant ess the Planting Commission approves an amendment to this use rmit. 5. That all previously applicable conditions approval of Use Permit No. 1806 (Amended) shalt remain in eff a part of this approval. 1 6. That the Planning Commis ' n may add or modify conditions of approval to the use pe , or recommend to the City Council the revocation of this us rmit, upon a determination that the operation which is the subje of this use permit, cause injury, or is detrimental to the health, peace, morals, comfort or general welfare .of the communi 7. T this use permit shall expire unless exercised within 24 months of the date of approval as specified in Section 20.82,090A of the Newport Beach Municipal Code. • rr* Use Permit No 3325(Amended)(PublicHearing) Item No. Request to amend a previously approved use permit which permitted a UP3325A change in the allowable occupancy of an existing restaurant located on roved property located in the RMC -H District. Said approval also included: a change in the operational characteristics of the restaurant so as to include a bar and dining area with background music; the. establishment of a new parking requirement; the retention of a valet parking service; the establishment of operational hours from 5:00 p.m. to 2:00 a.m. Monday through Friday and from 9:00 a.m. to 2:00 a.m. on Saturday and Sunday, and the continued use of a reciprocal parking arrangement with an, adjoining commercial property. The proposed amendment requests a change in the operational characteristics to change the opening hour to 11:00 a.m., so as to provide lunch service on a daily basis, where the lunch service is currently limited to Saturdays and Sundays only; and to waive a portion of the required offstreet parking spaces for the daytime use. -7- 715 PP COMMISSIONERS MINUTES M A. T 9p < Fha d CITY OF NEWPORT BEACH May 4, 1995 ROLL CALL INDEX LOCATION: Lots A and B of Parcel Map 6 -10 (Resubdivision No. 249) and a portion of Lot 1, Tract No. 5361, located at 333 Bayside Drive, on the southwesterly side of Bayside Drive between East Coast Highway and Linda Isle Drive. ZONE: RMC -H APPLICANT: Hans Prager (Yankee Tavern Restaurant)', Newport Beach OWNER: Marvin Burton, Newport Beach James He-Aicker, Planning Director, reviewed the.subjeet application and the existing operation as previously amended and approved. The public hearing was opened in connection with this item, and Mr. Hans Prager, applicant, appeared before the Planning Commission, He concurred with the findings and conditions in Exhibit "A ". - Ms.Leanne- Benvenuti ---- 106- Linda -Isle, appeared before -the- Planning_.. _- Commission for a clarification of the restaurant's operation. Director Hewicker explained that the only request is that the restaurant be allowed to be open for lunch. She said that the Linda Isle Community Association had concerns that the restaurant's operation would change and the change would have a negative impact on the neighborhood, . There being no others desiring to appear and be heard, the public hearing was clo @ed at this time. 3tion Motion was made and voted on to approve Use Permit No. 3225 L1 Aye (Amended) subject to the findings and conditions in Exhibit "A ". MOTION CARRIED. S 70 �-n COMMISSIONERS CITY OF NEWPORT BEACH MINUTES May 4, 1995 ROLL CALL INDEX FINDINGS: 1. That the proposed development is consistent with the Land Use Element of the General Plan and the Local Coastal Program, Land Use plan, and is compatible with the surrounding land uses. 2. That the project will not have any significant environmental impact. 3. That adequate parking is available to accommodate the proposed change in-ft hours of operation of the restaurant. 4. That the waiver of the development standards as they pertain to a portion of the off - street parking (30 daythne parking spaces during the week) walls, utilities, parking lot illumhiation, and landscaping, will not be detrimental to adjoining properties. 5. That the approval of Use Permit No. 3325 ,(Amended) 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 and floor plan. 2. That all previous applicable conditions of approval for Use Permit No. 3325 and Use Permit No. 3325 (Amended) shall be fulfilled. 3. That the hours. of operation of the restaurant shall be limited between 9:00 a.m. and 2:00 a.m,, daily. 4. That Coastal Conunission approval shall be obtained prior to the establishment of the weekday daytime operation of the restaurant. S. That a minimum of 34 parking spaces shall be provided for the daytime operation of the subject restaurant durhg the week A _9_ 77 dvf COMMISSIONERS CITY OF NEWPORT BEACH MINUTES May 4, 1995 ROLL INDEX CALL minimum of one parkurg space or eac t square eet o net public area" (62 spaces) shall be provided during the Saturday daythne operation of the restaurant, and one parking space for each 40 square feet of "net.public area" (64 spaces) for all other hours of the restaurant's operation. 6. That the development standards pertaining to a portion of the required parking spaces (30 daytime parking spaces during the week) walls, utilities, parking lot illumination, and landscaping„ are waived. 7. That the Planning Commission may add or modify conditions of approval to the 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. S. That this use permit shall expire if not exercised within 24 months from the date of approval as specified in Section 20.80,090A of the Newport Beach Municipal Code. Penn No 3551 Continued Public Hearing) Item No, UP3551 Request to rmit the establishment of a nautical museum in a floating structure Curren occupied by Charley Brown's Restaurant, where the related off- street Val'! ' area is looated in the RMC -H District. The Approved proposed facility will ine exhibit space, a meeting area, a library, a gift store and a cafe with o ale beer 'and wine on the floating structure, with related off - street g on the adjoining upland parcel. The proposal also includes request to permit live entertainment, dancing, and alcoholic bevera for various museum functions, weddings, and other private parties. LOCATION: Lot A , Tract No. 5361, Parcel 4 of I Map 93 -111 (Resubdivision No. 995) and a ports of Block 54 of Irvine's Subdivision, located at 15 -10- 9J 72 RESOLUTION NO. 1724 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH APPROVING ACCESSORY OUTDOOR DINING PERMIT NO. 2007 -001 FOR CONSTRUCTION AND OPERATION OF A 636 - SQUARE FOOT OUTDOOR DINING AREA ON PROPERTY LOCATED AT 333 BAYSIDE DRIVE (PA2007 -004) WHEREAS, an, application was filed by Jeff Reuter with respect to property located at 333 Bayside Drive, and legally described as Lots A & B of, Parcel Map Book 6 Page 10 (Revised #249) and Portion of Lot 1 Tract 5361, requesting approval of an Accessory Outdoor Dining Permit to allow the construction and operation of a 636 square -foot outdoor dining area in conjunction with the existing full- service restaurant; and WHEREAS, on June 7 and June 21, 2007, the Planning Commission held a noticed hearing in the City Hall Council Chambers, at 3300 Newport Boulevard, Newport Beach, California at which time the project application was considered. Notice of time, place and purpose of the public hearing was given in accordance with law and testimony was presented to, and considered by, the Planning Commission at the hearing; and WHEREAS, the Planning Commission makes the following findings required for approval of an Accessory Outdoor Dining Permit pursuant to Section 20.82.050 (B) of the Zoning Code: 1. Finding: That the proposed outdoor dining is accessory to the eating and drinking establishment. Facts in Support of Finding: The proposed outdoor dining area is accessory to the existing 2,538 square -foot restaurant and is proposed to have a floor area of 636 square feet which is 25% of the existing restaurant consistent with Municipal Code Section 20.82,050 (A) that limits accessory outdoor dining areas to 25 percent of the existing restaurant's interior 2,538 square -foot net public area, or 1,000 square feet, whichever is less. 2. Finding: The establishment, maintenance or operation of the accessory outdoor dining will not, under the circumstances of the particular case, be detrimental to the health, safety, peace, comfort and general welfare of persons residing or working in the neighborhood or injurious to property or improvements in the area. Facts in Support of Finding: The use is accessory to the existing restaurant use, subject, to all the findings and conditions of approval of Use Permit No, 3325 and its amendments, except as limited by this approval and is not an independent use. City of Newport Beach Planning Commission Resolution No, _ Page 2 of 8 The proposed outdoor dining area subject to conditions of approval which include limitation on hours of operation, limitations on seating, partial enclosure of the under -patio smoking area, and relocation of other existing outdoor smoking areas to the front of the subject building will minimize the transmittal of sound to nearby residential uses thereby reducing the potential noise impacts to the nearby residential uses. The operation of the proposed development will minimally Increase the outdoor noise level in the immediate vicinity. The noise study performed by the independent consultant shows that audible noise will be generated by the proposed outdoor dining area; however, reduction in the number of seats from 45 to 37 on the proposed outdoor patio, limitation of hours of food and/or drink service on the proposed, patio to between the hours of 8:00 AM and 9:00 PM with all use and occupancy of the proposed patio to cease by 9:30 PM, and the requirement of a full- height walllnoise barrier with locking windows to be closed at 7:00 PM which barrier shall be constructed consistent with plans accompanying the project application. 3. Finding: That the proposed accessory outdoor dining will not be located so as to result in reduction of existing parking spaces. Facts in Support of Finding: The proposed outdoor dining area will be located behind the existing building, overlooking the waterway, and thereby will not result in a reduction of the existing parking spaces located in the front of the building. Furthermore, Section 20.82.050 (A) does not require additional parking for accessory outdoor dining areas. WHEREAS, the project qualities for a Categorical Exemption pursuant to Section 15301 (Existing Facilities) of the California Environmental Quality Act. WHEREAS, the Planning Commission finds that judicial challenges to the City's CEQA determinations and approvals of land use projects are costly and time consuming, In addition, project opponents often seek an award of attorneys' fees in such challenges. As project applicants are the primary beneficiaries of such approvals, it Is appropriate that such applicants should bear the expense of defending against any such judicial challenge, and bear the responsibility for any costs, attorney's fees, and damages which may be awarded to a successful challenger; and NOW, THEREFORE, BE IT RESOLVED: Section 1. The Planning Commission of the City of Newport Beach hereby approves Accessory Outdoor Dining Permit No. 2007 -001, subject to Conditions of Approvals in Exhibit "A" attached hereto and made part hereof. Section 2. This action shall become final and effective fourteen days after the adoption of this Resolution unless within such time an appeal is filed with the City Clerk N City of Newport Beach Planning Commission Resolution No. _ Page 3 of 8 in accordance with the provisions of Title 20 Planning and Zoning, of the Newport Beach Municipal Code. PASSED, APPROVED AND ADOPTED THIS 21st DAY OF JUNE 2007. AYES: Eaton. Cole and McDaniel NOES: Hawkins, and Toerae EXCUSED: Hillgren and Peotter 21 City of Newport Beach Planning Commission Resolution No, Page 4 of 8 EXHIBIT "A" CONDITIONS OF APPROVAL ACCESSORY OUTDOOR DINING PERMIT NO, 2007 -001 Conditions in bold - italics are project specific conditions. All others are standards conditions. Planning Department The development shall be in substantial conformance with the site plan and floor plan Included with the application for approval of the accessory outdoor dining, except as noted in the following conditions, 2. The outdoor dining area shall be used In conjunction with the existing full - service restaurant. No special events, promotional activities, private functions or private parties shall be allowed within the outdoor dining area. 3. The outdoor dining area shall be limited to 636 sg. ft. 4. The outdoor dining area shall be limited to a maximum of 37 seats, including handicap seats /table space. The seating and.dining in the outdoor area shall be limited to dining table height (approximately 30 Inches) and the use of elevated counters and barstools is prohibited. 5. The outdoor dining area shall be provided with a full - height combination wall and sound attenuating window assembly consistent with plans submitted with this application for accessory outdoor dining and such assembly shall extend from the floor of the deck to the height of the underside of the existing roof and shall extend along the full length of the westerly side (overlooking the Bay) and southerly sides of the outdoor dining area. If constructed of glass or Plexiglas type material, the partition shall be of solid construction, except that operable type sound attenuating windows shall be allowed. The sound attenuating windows shall be closed and locked from 7:00 p.m. to 8:00 a.m. The final sound attenuating window design and tamper- proo.T locking mechanism shall be subject to the approval of Planning Director and shall be maintained in good working order. 6. The hours of operation of the outdoor dining area are limited to between the hours of 9:00 a.m. to 9:30 p.m., daily. Table service shall stop at 9:00 p.m. and all use of the outdoor dining area shalt cease by 9:30 p.m., with the exception of clean up activities by the employees. The outdoor dining area shall be closed and not occupied after 9:30 p.m. The interior restaurant operation shall be governed by the hours specified in conjunction with the approval of Use Permit No. 3325 and its amendments. 22 City of Newport Beach Planning Commission Resolution No. _ Page 5 of 8 7. Prior to occupancy or use of the outdoor dining area, the applicant shall Install on the west and south elevations a full height, solid glass or Plexiglas wall /screen partition on or near the bulkhead that extends from the bottom (underside) of the proposed dining deck to the ground. The design of the wall /partition and the method of installation shall be reviewed and approved by the Planning Director. The contiguradon of the area below the dlnIng deck shall be In accordance with the approved floor plan that shows only a walkway and landscape area. &. The applicant shall submit to the Public Works Department a parking and on. site circulation plan consistent with the conditions of approval of the use permit previously granted for operation of the indoor restaurant and as referenced In Condition 24, below. The parking plan shall Include location of valet parking pick -up and drop -off area that is located so as to be shielded from nearby residences on Linda Isle by the subject restaurant building so to minimize the transmission of noise to Linda isle to the maximum extent feasible. The parking plan shall include a waiting/queuing area for guests dropping off or picking up automobiles from valet parking and a designated smoking area for patrons of the restaurant. 9. Alcoholic beverage service shall be prohibited in the outdoor dining areas, unless the approval of the Police Department and the State Department of Alcoholic Beverage Control are first obtained. Any substantial physical changes required (as determined by the Planning Department) to accommodate alcoholic beverage service shall be subject to the approval of an amendment to this Outdoor Dining Permit. 10. Ali applicable conditions of approval of Use Permit No. 3325 and its amendments shall remain in force. 11. The noise generated by the outdoor dining activity shall comply with the provisions of Chapter 10.26 of the Newport Beach Municipal Code. That is, the sound shall be limited to no more than depicted below for the specified time periods: es City of Newport Beach Planning Commission Resolution No. _ Page 6 of 8 12. The applicant shall retain a qualified engineer specializing in noise /acoustics to monitor the sound generated by the outdoor dining activity to insure compliance with these conditions, if required by the Planning Director, 13. No amplified music or entertainment is permitted in the outdoor dining area. No outside paging system, loudspeaker or other noise generating device shall be utilized in conjunction with this outdoor dining area. 14. The proprietor shall actively control any noise generated by the patrons of the facility. 15. Light sources within the outdoor dining areas and the parking lot shall be designed or altered to eliminate light and glare spillage onto adjacent properties or uses, Prior to issuance of a certificate of occupancy, the applicant shall demonstrate to the Planning Department that the exterior lighting system has been designed and directed in such a manner as to conceal the light source and to minimize light spillage and glare to the adjacent properties. Prior to Issuance of the certificate of occupancy or final of building permits, the applicant shall schedule an evening inspection by the Code Enforcement Division to confirm control of light and glare specified by this condition of approval. 16. Trash receptacles for patrons shall be conveniently located outside of the related food service facility. to serve the accessory outdoor dining area or the area shall be actively bused to minimize the potential for trash to fall into the Bay or elsewhere on the subject property. 17. Roof coverings over the outdoor dining area shall not have the effect of creating a permanent enclosure. The use of any other type of overhead covering shall be subject to review and approval by the Planning Director 24 Between the hours of Between the hours 7:00 a.m. and 10:00 of 10:00 p.m. and p.m. 7:00 a.m. Measured at the property line of commercially zoned 65 dBA 60 dBA property. Measured at the property line of residentially zoned 55 dBA 50 dBA property: Measured in the Interior of a 45 dBA 40 dBA residential structure 12. The applicant shall retain a qualified engineer specializing in noise /acoustics to monitor the sound generated by the outdoor dining activity to insure compliance with these conditions, if required by the Planning Director, 13. No amplified music or entertainment is permitted in the outdoor dining area. No outside paging system, loudspeaker or other noise generating device shall be utilized in conjunction with this outdoor dining area. 14. The proprietor shall actively control any noise generated by the patrons of the facility. 15. Light sources within the outdoor dining areas and the parking lot shall be designed or altered to eliminate light and glare spillage onto adjacent properties or uses, Prior to issuance of a certificate of occupancy, the applicant shall demonstrate to the Planning Department that the exterior lighting system has been designed and directed in such a manner as to conceal the light source and to minimize light spillage and glare to the adjacent properties. Prior to Issuance of the certificate of occupancy or final of building permits, the applicant shall schedule an evening inspection by the Code Enforcement Division to confirm control of light and glare specified by this condition of approval. 16. Trash receptacles for patrons shall be conveniently located outside of the related food service facility. to serve the accessory outdoor dining area or the area shall be actively bused to minimize the potential for trash to fall into the Bay or elsewhere on the subject property. 17. Roof coverings over the outdoor dining area shall not have the effect of creating a permanent enclosure. The use of any other type of overhead covering shall be subject to review and approval by the Planning Director 24 City of Newport Beach Planning Commission Resolution No. Page 7 of 8 and may require an amendment to this permit or an amendment to Use Permit No. 3325. 18. This approval and operations and use of the outdoor patio shall he subject to periodic review by the Planning Commission, being one (1) year from the issuance of the certificate of occupancy for the outdoor dining area, to determine compliance with the conditions of approval and to determine the effectiveness of the conditions of approval to prevent or mitigate noise Impacts or problems. 19. The Planning Department may add to or modify conditions of approval to this outdoor dining permit, or revoke this approval upon a finding of failure to comply with the conditions set forth in Chapter 20.82 of the Municipal Code or other applicable conditions and regulations governing the food establishment. The Planning Director may also revoke of this permit upon a determination that the operation which is the subject of this approval causes injury, or is detrimental to the health, safety, peace, morals, comfort, or general welfare of the community. 20. This approval shall expire unless exercised within 24 months from the end of the appeal period as specified in Section 20.91.050 of the Newport Beach Municipal Code. 21, The applicant shall conspicuously post dining, waiting, smoking and parking proximity to residential areas and to be while outside the establishment. Public Works Department and maintain signs at all outdoor areas indicating to patrons the courteous to residential neighbors 22. The area outside of the food establishment, including the public sidewalks, shall be maintained in a clean and orderly manner and may be subject to providing periodic steam cleaning of the public sidewalks as required by the Public Works Department. 23. All on -site runoff generated (including rainfall runoff) within the outdoor dining area shall be plumbed for discharge into the existing on -site sanitary sewer system. City (Public Works Department, Code Enforcement and Water Quality Division and Utilities Department) approval of such discharge system is required. The washing of the deck surface with any cleaning solutions or the use of high pressure or steam cleaning devices is prohibited. 24. The applicant shall submit a valet parking plan to the Public Works Department that shows the parking, valet station and pick up and drop off area shall be reviewed to determine compliance with the provisions of Condition of Approval No. 4 of Use Permit No. 3325 as approved by the Planning Commission on September 22, 1988. 25 City of Newport Beach Planning Commission Resolution No. _ Pape 8 of 8 Building Department 25, The applicant is required to obtain all applicable permits from the City Building and Fire Departments. The construction plans must comply with the most recent, City - adopted version of the California Building Code. 20 Attachment No. PC 3 NBPD Memorandum 2 22 City of Newpor.t Beach Police Department Memorandum April 4, 2011 TO: Janet Johnson Brown, Associate Planner FROM: Detective Bryan Moore SUBJECT: 3- Thirty -3 Waterfront Restaurant, 333 Bayside Drive, Use Permit No. UP2011 -007 (PA2011 -041). At your request, the Police Department has reviewed the project application for 3- Th/rty -3 Waterfront Restaurant, located at 333 Bayside Drive, Newport Beach. Per the project description, the applicant is requesting a use permit application to extend the hours of operation for an existing outdoor dining patio from 9:00 a.m. to 9:30 p.m, daily to 9:00 a.m. to 1:00 a.m, daily. Approval of an Accessory Outdoor Dining Permit was granted by the Planning Commission on June 21, 2007, allowing a 636- square foot outdoor dining area with a maximum of 37 seats. Elevated counters and barstools were prohibited. The sound attenuating windows are required to be closed and locked from 7:00 p.m. to 8:OO a.m. to minimize noise impacts to the residential development on Linda Isle, located across a channel approximately 215 feet from the outdoor dining patio. The applicant currently holds a Type 47 (General — Eating Place) license with the Department of Alcoholic Beverage Control. Applicant History The applicant, Jeff Reuter, has been a resident of the City of Newport Beach for the past 58 years. He has been Involved in the restaurant business, either as a manager or owner, for approximately 40 years. He is currently the owner of 3- Thirty -3 Waterfront which has been operating on Bayside Drive since 2004. 3- Thirty -3 Waterfront restaurant provides a high quality menu in a relaxed, but elegant atmosphere. The restaurant also features live entertainment and a lively bar scene on the weekends until 2 a.m. It should be noted that the Police Department has received several complaints (in the last year) from residents on Linda Isle alleging disturbances /noise from 3- Thirty -3 Waterfront. After subsequent investigations (by the NBPD) as well as interviews with the owner and the complaining parties, it was evident that the noise was being generated from patrons on the nearby docks /boats, Many of these patrons were arriving to or leaving 3- Thirty -3 and /or Sol restaurant. 29 3- Thirty -3 Waterfront UP2011 -007 During these investigations there was no indication that the patio at 3- Thirty -3 was the source of the noise complaints. After several discussions with Mr. Reuter it appeared as though he took reasonable steps to mitigate the noise on the docks as the complaints to the Police Department have recently declined. Police Activities and Calls for Service Data The below information represents the time period between March 30, 2010 through March 30, 2011: TYPE CALLS /INCIDENTS NOTES Citizen Assist 12 Assist, keep the peace and suspicious cires Public Intoxication 9 Drunk subjects causing a disturbance Disturbances 6 Noise (patrons on patio and dock area DUI Drivers 9 Reports of DUI's leaving the loc * DUI Arrest 18 Arrestee had been drinking at loc Batteries /Assaults 4 Subjects fighting or preparing to fight Miscellaneous 20 Traffic, alarms and medical aids Municipal Code 3 Patio violation, bandit taxi, etc Officer Initiated 17 Vehicle stops, bar checks, etc. Vandalism 1 Patron vandalized bathroom sink * it should be noted that 5 of the reports of DUI drivers were made by an employee of 3- Thirty -3. Recommendations The Police Department has no objection to the operation as described by the applicant. It should be noted that the proposed operation will offer alcoholic beverage service (for on -site consumption) in combination with food service, late hours, and live entertainment, As a result, the applicant/operator will be subject to an Operator's License issued by the Chief of Police. Signs and Displays . Any signs or displays would need to conform to City requirements. There shall be no exterior advertising or signs of any kind or type, including advertising directed to the exterior from within, promoting or Indicating the availability of alcoholic beverages. Interior displays of alcoholic beverages or signs, which are clearly visible to the exterior, shall constitute a violation of this condition. Hours of Operation The current operating hours of the restaurant are from 9:00 a.m. to 2:00 a.m., daily. 2 90 3- Thirty -3 Waterfront UP2011 -007 The proposed hours of the outdoor patio are from 9:00 a.m. to 1:00 a.m. daily. Security The applicant shall provide licensed security personnel while offering live entertainment. A comprehensive security plan for the permitted uses shall be submitted for review and approval by the Newport Beach Police Department. The procedures included in the plan and any recommendations made by the Police Department shall be implemented and adhered to for the life of the Use Permit. Employee Training Require all owners, managers, and employees selling' alcoholic beverages to undergo and successfully complete a certified training program in responsible methods and skills for serving and selling alcoholic beverages. Additional Comments. For the purposes of this application, staff may also want to consider establishing conditions that would require a Special Event Permit, A Special Event Permit may be required for any event or promotional activity outside the normal operational characteristics of the proposed operation. For example, events likely to attract large crowds, events for which an admission fee is charged, events that include any form of contract promoters, or any other activities as specified in the Newport Beach Municipal Code to require such permits. Other Recommended Conditions In addition, the Police Department has determined that the following conditions would be appropriate for the Conditional Use Permit for the business: Approval does not permit 3- Thirty -3 Waterfront to operate as a bar, tavern, cocktail lounge or nightclub as defined by the Municipal Code, unless the Planning Commission first approves a Use Permit. 2. Full menu food service shall be available for ordering at all times that the restaurant establishment is open for business. 3. No alcoholic beverages shall be consumed on any property adjacent to the licensed premises under the control of the licensee, 4. Food from the full service menu must be made available during any "happy hour" type of reduced price alcoholic. beverage promotion. There shall be no reduced price alcoholic beverage promotion after 9 p.m. 5. VIP passes or other passes to enter the establishment, as well as door charges, cover charges, or any other form of admission charge, including minimum drink order or sale of drinks is prohibited. 91- 3- Thirty -3 Waterfi-ont UP2011 -007 6. The use of private (enclosed) "VIP" rooms or any other temporary or permanent enclosures separate from public areas are prohibited. 7. Petitioner shall not share any profits or pay any percentage or commission to a promoter or any other person based upon monies collected as a door charge, cover charge, or any other form of admission charge, including minimum drink orders or the sale of drinks. 8. The quarterly gross sales of alcoholic beverages shall not exceed the gross sales of food during the same period. The licensee shall at all times maintain records, which reflect separately the gross sales of food and the gross sales of alcoholic beverages of the licensed business. These records shall be kept no less frequently than on a quarterly basis and shall be made available to the Police Department on demand. 9. There shall be no on -site radio, television, video, film or other electronic. media broadcasts, including recordings to be broadcasted at a later time, which include the service of alcoholic beverages, without first obtaining an approved Special Event Permit issued by the City of Newport Beach. 10.There shall be no live entertainment allowed on the premises without first obtaining a permit from the City. 11. Noise from the live entertainment shall be confined to the interior of the structure. 12.There shall be no dancing allowed on the premises. 13. Strict adherence to maximum occupancy limits Is required. 14. No games or contests requiring or involving the consumption of alcoholic beverages shall be permitted. If you have any questions, please contact Detective Bryan Moore at (949) 644- 3725. �7 Bryan M ore, ABC Liaison Detective Division Craig Fox, Captain Detective Division Commander 2 92 Attachment No. PC 4 Project Plans and Photographs 93 94 kl / FR xiowv C� l . t BAYSID DRIVE ID'P] Ali -?7 vcw sisn�rwnL:euxrr.�L a� o GHIMC'Y R'V. V:TB¢0.TAIL F JOHN WELLS nvonw - uomia ALA J4 q Y m 8�a rr l`y/ f• �9 a V i JOHN E. waLs ivmiw - uamcis ASA. J4— 1 ........fp. ■ 1"��� �� 1� �I 1,14V,��� � � �� a nnr�nn ..0 �,I'�• „'1Ij w 111 4I �� � ■ � -_ �� rflryy JOHN E. waLs ivmiw - uamcis ASA. J4— 1 100 Attachment N®. PC 5 Applicant's Written Statement 107 102 This letter to the Platming Department is for review and consideration for the Planning Connnission package. Please allow me to introduce myself, my name is Jeff Reuter. I have been a resident of Newport Beach for all of my 58 years. Currently I am the owner of 3- Thirty -3 Waterfront restaurant on the corner of Bayside Drive and Pacific Coast Highway, We have been open now for a little over six years, Our particular location has been a number of restaurants dating back to Isadore's and Wuben's some forty years ago. Most recently, before as it was owned by Hans Prager of The Ritz restaurant and then Dave Salisbury; it was then called the Yankee Tavern. Without going into too much depth, I would like to give you a little background. All of my predecessors dating back forty years had some kind of plan to build an outdoor patio at our restaurant location; given the fact that we are a beach community with only a few restaurants on the water, and only a handfirl that have an outdoor eating area. All of them "bailed" on the idea when they found out the costs involved and the amount of work it would take to get it through the city process. Sonic made it as far as submitting plans and then gave up. I decided that the citizens needed it after making a post card size comment card and inserting them in the guest checks. We received thousands of responses from our customers over the years, not one has been negative; so we began the process. Long story short, it has turned out to be the nightmare my predecessors imagined it might be; but in the years to come, all of Newport will be very glad we did go to the trouble, the pain and suffering will long be forgotten. The project that was supposed to take six months and $400,000.00 to build a 600 square foot patio (no restrooni, kitchen, bar, - just a patio) — took a year and four months and cost over $800,000.00. It will take approximately 15 -18 years to pay for itself at our current rate, not the 3 -5 that was anticipated. The purpose of our application is because when we applied, and were granted permission to build; a stipulation was invoked because of two individuals that live on Linda Isle directly across from the restaurant location. Forgetting that the restaurants, gas station, and car dealership were there long before the (rouses on Linda were built; it was "assumed" that the bar patrons were going to be loud and that the noise might carry over to the contiguous houses, We attempted to explain that the patio was going to be strictly dining, and that it would be perfectly quiet at all times; but because of the ranting's of those individuals, the Council put a closing time of 9:30 p.m. on the patio. Our restaurant neighbor 50 feet to our right has an outdoor patio with no roof that is open until 2:00 A.M. — 7 days a week, and is attached to their bar. We have waited this long to submit our application to prove that the patio is exactly what we said it was going to be; a Rill service dining area ONLY. All the tables are low level, (no bar stools) and the clientele is slightly older than our patrons inside; exactly what we were tying to accomplish. At any given time the patio is in use, absolutely NOTHING can be heard from the outside of the building, The windows are never opened past dusk, 109 (they have only been opened during the day a couple times as the wind is way too cold coming down the harbor channel), and the roof is always closed. You can barely hear people talking if you are standing IN THE ROOM, If you are not familiar with the location, I ask that you stop by at your convenience to see exactly what I am talking about. I can see how there could have been a misconception on paper as to the noise that could be generated by patrons drinking and partying late into the evening out on the deck; but I assure you, that is not the case in any way. Given the new laws that have been enacted regarding the Police Departments ability to curtail establishments that are "out of line'; I ask that the same consideration be given to situations like this where we be allowed to further prove we are exactly what we say we want to be, a nice, quiet place to have dinner outside; taking in the waterfall, fireplace, and the harbor view. Once again I apologize for this type of introduction, but it is imperative that you have as much time and information, as is available to help correct a situation that was misunderstood initially, and is in the best interest of all parties, when resolved. I Thank You for taking the time to read this, and would like to give you a call after you have received the staff report to see if I may answer any questions or concerns that you might have. Sincerely, Jeff Reuter 3- Tbirty -3 Waterfront 110 City Council Attachment C Planning Commission Meeting Minutes dated June 7 and June 21, 2007 111 112 Planning Commission Minutes 06/1 "2007 CITY OF NEWPORT BEACH Planning Commission Minutes June 7, 2007 Regular Meeting - 6:30 p.m. Page I of 17 file: //Y;\ Users \PLN\Shared\Planning Commission \PC Minutes \2007\mn06- 07- 07,htm �0TI /2008 INDEX ROLL CALL Commissioners Eaton; Peotter, Hawkins, Cole, McDaniel, Toerge and Hillgren: . All Present STAFF PRESENT: David Lepo, Planning Director Aaron Harp, Assistant City Attorney Tony Brine, Principal Civil Engineer Patrick Alford, Senior Planner Russell Bunim, Assistant Planner Ginger Varin, Planning Commission Secretary PUBLIC COMMENTS: PUBLIC COMMENTS None None POSTING OF THE AGENDA: POSTING OF THE AGENDA The Planning Commission Agenda was posted on June 1, 2007. HEARING ITEMS ITEM NO. 1 SUBJECT: MINUTES of the regular meeting of May 3, 2007. Continue to Motion was made by Commissioner Hawkins and seconded by 06/21/2007 Commissioner Peotter to Continue this item to 06/21/2007. yes: Eaton, Peotter, Hawkins, Cole, McDaniel, Toerge and Hillgren Noes: None Absence None SUBJECT: 3 Thirty 3 Waterfront (PA2007 -004) ITEM NO. 2 333 Bayside Drive PA2007 -004 n application for an Accessory Outdoor Dining Permit to allow the Continued to construction and operation of a 636 square foot outdoor dining area In 06/2112007 conjunction with the existing full- service restaurant. Patrick Alford, Senior Planner, noted that Outdoor Dining Permits are normally approved at staff level, but in this instance due to an issue file: //Y;\ Users \PLN\Shared\Planning Commission \PC Minutes \2007\mn06- 07- 07,htm �0TI /2008 Planning Commission Minutes 06/0''2007 Page 2 of 17 garding waterfront restaurants, this item has been brought to the Planning ommission for determination. The issue involves a policy directive of aterfront restaurants that requires an acoustical study using the City': Dise Control Ordinance. Staff is concerned that there is a gap betweet at requirement and the findings needed to approve an Accessory Outdoo ning Permit, specifically that it not be detrimental to the health, safety mce, comfort and general welfare of persons residing or working in the ;ighborhood. The study shows the project would not exceed the noise andards for residential areas; however, staff is concerned about the ipacts dealing with the nature of the noise and the possibility of single ,ent noise rising to the level of disturbing the peace of the community. At Dependent review of the acoustical study was done by Fred Greve o estre Greve Associates who found that the noise while not loud, would be :rceived by the adjacent neighborhood and considered an annoyance. ierefore, staff does not feel the finding for an Accessory Outdoor Dininc ;rmit, namely the finding that the establishment would not be detrimenta the health, safety, peace, comfort and general welfare of people residint the neighborhood, could be made. Cole noted that this item was brought to the i because staff did not feel that this was a clear issue. r. Lepo noted that upon review of the minutes of the 1998 Plat ommission meeting regarding a discussion on the need for an acou udy, there was nothing in the record giving direction regarding the i ialysis and the outdoor dining required findings. Staff is asking for put on what would be an appropriate standard. In this instance, kes the position that the outdoor dining ordinance is the previ rection on this. Typically there have been buildings between the ou ning and nearby residences. McDaniel asked how many times this had been approved. Lepo answered that this had been approved twice by staff in the past. missioner Hawkins noted the interior noise levels per General y N1.1 require that all proposed projects are compatible with the r onment through use of Table N2 and enforce the interior and ext standards shown In Table N3. He asked how this project will co both the interior and exterior noise standards that are on Table N3. vlr. Lepo answered those noise standards require 55 CNEL at the prop ine for residential districts that reduces to 50 CNEL at night time and application would be consistent with that particular policy. The inte equirement in the California Building Code for 40 -45 CNEL is typically iew construction with the windows closed. Dommissioner Hawkins clarified that staff is interpreting the interior nc tolicy is for new residential construction compliance. vlr. Lepo noted the 45 CNEL interior standard is typically for r =struction and is from the California Code but It would also apply to r file : / /Y:1Users\PLN\Shared\Pianning Commission\PC Minutes12007 \mn06- 07- 07.htm 0 / /2008 Planning Commission Minutes 06/0" 9007 Page 3 of 17 where there are existing sensitive uses. Hillgren asked about the parking. Lepo noted that the proviso for the outdoor dining, as long as it is not rmanent weather -tight enclosure, allows up to 25% or 1,000 square fe the net area without providing additional parking. ommissioner Hillgren asked about the acoustical study. Referring to table„ he asked about the time of day this would refer to. Lepo stated both Mr. Wieland and Mr. Greve could answer that. missioner Eaton asked if the floor plan attached in the 2006 < the same as provided in this staff report. He asked what has c eon the approval of 2006 and the recommended denial tonight. Lepo answered the difference is his interpretation of the standards ly in this matter. Reading the Outdoor Dining provision of peace a Mort, it appeared to override the Noise Ordinance. Also included are I rtes from the 1998 report which has no clear direction. He determir this needed to be brought to the Planning Commission for discussi judgment, which will set a precedent for all future cases. iissioner Eaton noted the facility seems to be fully enclosed on thn with a roof and almost becomes a full -on dining operation without g requirement. What would be the limit on what is allowed t )r dining? What about operable windows? Lepo answered the Code applicable to outdoor dining specifically sa- cannot have a weather -tight enclosure. Weather -tight would be for nanent structure under the Building Code that could be heated ai ed as well as be weather- tight. nissioner Eaton asked when this was adopted. Mr. Lepo answ did not look into that. Discussion continued on compliance )rnia Codes regarding heating and cooling and the nature of the roofing material. imissioner Hawkins noted the assumption is that there is a roof Id comply with the Building Code and windows on three sides. [ turn this into a part of the restaurant structure as opposed to anc rior dining? Lepo answered it is not weather - tight, and that is the term used in )mmissioner Peotter discussed the draft resolution for denial even thoug meets the Noise Ordinance, and the wording to possibly replace th coking area. Why isn't there a resolution for approval so we have r. Lepo added that a resolution for approval would make the finding file :HY: \Users \PLN\Shared\Plaiming Commission \PC Minutes\ 2007\mn06- 07- 07.htm TI//?30 /2008 Plamiing Commission Minutes 06/0'12007 r 2 of the Outdoor Dining Ordinance that the configuration of re of the outdoor dining area will allow the Commission to make that the operation would not disturb the peace and comfort of its nearby. That is the finding that needs to be made for the Outc which is different from complying with the Noise Ordinance. . Garcia, Senior Planner noted with regards to the configuration of I (door dining in relation to the original submittal in 1995, the plans < 3ically the same. The only change was the dimension perpendicular bay that has been reduced; however, the width remains at about �t. The elevations included are the same and the roof structure is a trt stem with fabric in between the trusses. It is not weather tight. The fr( the bay is a solid wall with operable windows. With the original 19 )lication staff had recommended solid walls like Mama Gina's has. T )licant met with the Planning Director at that time and they discussed t idows being opened during the day. We then included conditions ti uired they be closed at 7 p.m. with tamper -proof latches so that patro tid not operate them. ian Cole affirmed that in the evening with that condition the would then come out from the areas in the roof that were open. irman Cole clarified that parking is not an issue for deliberation and tional conditions can be made. Staff agreed noting that would rary to the intent of the Outdoor Dining Ordinance. Reuter, applicant noted the following: All smokers are to be outside the restaurant per California laws; Small patio to be enclosed except the roof for the smokers; If this application is not approved, those smokers will continue to out in the parking lot; Beneficial for everyone to have an enclosed patio area with. music, no television, no barstools, no microphone system, sim outdoor sit -down dining; We have moved the valet parking to the other side of the building that the building blocks the noise; By moving the smokers upstairs, the noise will be contained in enclosed environment; Introduced a petition signed by numerous patrons and noted signees from Linda Isle. He noted the legend used on the petit with green for the patio and yellow not wanting the patio; Existing noise also comes from boats that are in front of t restaurant; unless the Harbor Patrol is called, the noise will not qt down; This small patio will take care of a majority of the sound. ommissioner McDaniel noted this had been approved twice in the pas id asked why didn't somebody build then? If this is approved, what Is ou aarantee that it will be built this time? What kind of parking is available? ow long has a restaurant been at this location? What is the distance fron e restaurant to the residents across the water? Page 4 of 17 file: //Y: \Users \PLN\Shared\Planning Commission \PC Minutes\2OO7U=06- 07- 07.htm 1q1 0/2008 Planning Commission Minutes 06/0" ?007 Page 5 of 17 Reuter answered: Following the original approval there was a disagreement on v would pay for the improvements between the tenant and landlord. It was re- instated for a second and a third period where permit was extended. When we went to use the permit, we were 1 by staff there were new issues that needed to be addressed and we have to start over. This is a $750,000 project to enclose the smokers below and solve the problem and the landlord has agreed to fund the patio. Parking is not an issue. We have an agreement with the office in door to use their parking at night. Additionally, we have hired Ma Gina's valet company and provide no charge for parking. That location has been a restaurant for over 40 years. The distance between the restaurant and the residents across water is about 215 feet. ommissioner Hawkins noted there is no recorded parking - agreement, verbal agreement that could be revoked at any time. Reuter answered, yes but this is not an issue. If it became an iss landlord of the shopping center across the street has offered to rent Gina lot. imissioner Hawkins confirmed for the record that the petition ten Linda Isle residents' signatures. ision continued on: No smoking outside the patio area with enforcement as a possi condition; Withdrawal when application was appealed by the Linda I residents in early 2007; Noise problems; Potential for a new policy for no re -entry to lessen the impact noise once patrons leave the facility ; Food service until closing; Security; Application is to provide a smoking area for patrons as well as Saturdays and Sundays during the day to provide an outdoor dine experience; Potential conditions to retain this as a smoking area only, and i completely enclose the area so as to become dining only; Removal of a table at night in this area to provide room for i smokers to mill about; Possible reduction of the seating capacity in the application; State Code requirements for an open smoking area being met; Hostess seating and informing patrons of smoking area. David Wieland of Wieland Associates, noted: Numbers cited 55.1 dBA to 70.4 dBA in the table located on page of the staff report are ambient noise sources, such as traffic c streets and aircraft overhead; The restaurant.currently generates maximum noise levels of 50 dE to 66 dBA compared with the standard which is 75 dBA; file : / /Y:1Users\PLN\Shared\Planning Commission\PC Minntes12007Umz06- 07- 07.htm "/2008 Planning Commission Minutes 06/0"2007 Page 6 of 17 Explained the noise tables using the old noise levels and the noise levels and the differences; Interior standards referred to are the transportation noise stand: CNEL and are used to mitigate traffic noise; City has interior noise standards in the Municipal Code, Cha 2.26; however, the standards are specifically for a residential impacting a residential unit and do not address a commercial n source impacting a residential noise source and therefore, was considered in his report. comment opened. Dubrow, local resident noted: Yankee Tavern noise was contained within the building and since Thirty 3 has taken over, there has been unbelievable noi: generation from both parking and smoking areas; Smoking area is relatively confined and will accommodate only abo 8 or 10 people; Noise will generate across the 215 feet and during the summer v like to open our windows and enjoy our backyards and do not wa the extra noise being generated by that restaurant to interfere wi their outdoor enjoyment; Only this side of the island will be impacted by the noise with the s cloth roof and openings; To add to the already current noise problems with the raised tone people who have been drinking we don't think is right; The noise is coming from the parking lot and smoking area; More people will make the current problem worse; Complaints have been made both to the restauranteur and to ti Police Department; Noise from the valet includes people yelling for their cars, talking loud voices at a raised level, people yelling to each other such as be heard across the bay; Noise also comes from the boaters, particularly the loud music; Moving the valet portion has diminished the noise somewhat, b there is still noise; Noise levels happen with spikes that disturb people. nmissioner McDaniel noted that this level of noise seems to be level of tolerances that are allowed for noise. iald McCalla, local resident noted the following concerns in opposition proposed project: Neighbors do not object to the outdoor dining during the day but < concerned about what happens later in the evening with the noise; Closing hour on weekends is 11 p.m. and we are awakened w noise events when the valet is not quick enough or the smokers particularly vocal and try to talk over each other; 3 Thirty 3 is a martini bar; Have called the restaurant to complain about the noise and I interior noise was so loud that the bartender couldn't hear me on t telephone; We appreciate that the valet stand was moved as it has significar file : //Y: \Users\PLN\Shared\Planning Commission \PC Minutes\2007\mn06- 07- 07.htm 08/t )/2008 Planning Commission Minutes 06/0 "')007 lessened noise generation; These noises don't happen every night but when it does you're and we don't know what to do and it is frustrating; A sail cloth will not contain the kind of yelling that we are tall, about; Can't believe that a commercial use is allowed to make more nc than a residential use to another residence. Commission inquiry he noted a mostly enclosed improvement would ke the noise any better than with an open roof. The building itself is -Inuated and the noise that we hear is from the outside. The for gyration, The Yankee Tavern, closed at 10 p,m. not at 2 a.m. This a problem at all. ssioner McDaniel noted if this isn't approved, what you have now the same. McCalla answered he would rather have what is there now than I t he thinks he is going to get. The proposed project will not be better. iissioner Hawkins asked if the closing hours were altered such as would there still be opposition to this application? McCalla answered as long as it was controlled; however, the is the worst time. in opposition to the project for similarly stated issues: Benvenuti, local resident, added that he has been awakened ma during the night; home is completely sound attenuated as his home the flight path; concerned about enforcement of the change of hoL ;ration; they deserve to run a successful business but not at our co in not with the smokers but with people during valet operations. idy McCalla, local resident, added she prefers the problems they havn v rather than face sornething that could possibly be more profound. ange in the hours will not be a barrier to the noise coming from the king lot. If it did end at dusk that would be more agreeable if this is wha are going to have to face but would rather not face it at all. !h Randolph, local resident, added that the change in hours would 6 smokers back outside so the same noise problem would occur, so Id not make a difference; sound test was done from his back yard Bd he what the projected sound would be after adding people on Lloyd, local resident, added she has a summer home used for be ation and fun and wants to be able to enjoy it but can't due to ann Benvenuti, local resident, added that putting an additional 48 peof that small an area patio 215 feet away from her bedroom, the additlor and is going to resonate; has called the police many times; restaurant file: / /Y: \Users\PLMShared \Planning Commission \PC Minutes \2007\rmi06- 07- 07.htm Page 7 of 17 Planning Commission Minutes 06/0 7'2007 Page 8 of 17 it but is much nosier now; according to the proposed plan this will above the existing parking places and will be a second level bar v ial sound coming across the water; lines form to enter 1 ant during the summer; sound tests were done during the wit and the result would be significantly different if done during r months; service out to the new patio area will result in nc from inside the restaurant when the doors are opened as well >e from the additional 48 patio patrons. ssion continued on possible conditions related to hours and if this project was approved. Battaile, lawyer representing the Benvenutis, McCallas and Mr N noted: There is an interior noise standard and nothing in the Chapter states it applies to residential noise impacting other residences; it is the same noise standard that applies to any kind of noise from any kinc of construction; The noise study does not mention the interior noise standards; there is no way you can approve this until they have attempted to address the interior noise standard; The staff report notes that a finding has to be made that the establishment will not be detrimental to the health, safety, peace, comfort and general welfare of these residents; meeting average noise standards, you can't make this required finding due to the spikes in the noise; Referring to page 93 in the packet, he referenced the data from a previous study done last spring; noise measurements were taken inside the restaurant; discussion continued on decibels and time; Referring to page 67 he discussed the dBA listings; A review of Wieland Associates Noise Analysis Report was done by Sam Lane, Ph.D, that notes the number 90 dBA is consistently referred to and should be taken into account especially as the noise is taken outside The residents have a genuine problem and ask for assistance from the Commission. Commission inquiry he noted that there may be a way if the hours anged plus other conditions such as absolutely closing the downsi oking area so that all of them would move would help to alleviate ,idents' concerns. unissioner Hawkins, referring to Code Section 10.26.030 interior noi: dards, read "the following noise standard, unless otherwise indicate I apply to all residential property within all noise zones." It looks as interior noise levels are exactly as the expert stated, residential ( lential. The General Plan standards are somewhat at odds with th . Battaile opined the Zoning Code section applies to all residentia )perty and doesn't say anything about limiting it as far as what the source the noise is. The Ordinance does not say anything about the source. e General Plan seems to say that is not a limitation. file: / /X: \Users \PLN \Shared\Planning Commission\PC Minutes\2007\nM06- 07- 07.htm 021)/2008 Planning Commission Minutes 06/07').007 ion continued on where the measurements should conditions, standards of acoustical measurements, cor in support of the project: Diehl, local resident noted his support for the application st; to be able to have an outdoor dining experience. Problems ous speakers seem to be coming from an area that is not ge at all. This patio should be the point at hand and it will Salyer, local resident noted: The City hired an expert, Mr. Greve, who has laid out the concei on noise emanating from this patio; The levels he estimates (page 10) for the maximum noise levels the residences due to the outdoor dining activities will generally around 47 dBA, During loud events, peak noise levels from pa dining could be as high as 57 dBA. Both levels are clearly w below the City's guidelines; The report on the noise that exists today is lower than the alrcr that fly over, motorcycles, and cars; these noises are higher th what is projected to come from the patio dining area; Focusing on the noise levels you have to use what your expert giv you. ublic comment was closed. Greve of Mestre Greve Associates, noted: The City has interior standards as part of the Noise Ordinance; Standard requires that the indoor noise levels not be greater than dBA at the nighttime period what starts at 10:00 p.m., nor grey than 45dBA during the daytime hours; these are measured v windows open; The outside noise criteria is usually more stringent as m dwellings, even with windows open, you get an outside /inside nc reduction of about 12dBA; The noise standard that would apply during the daytime or evening would be the 55dBA outside and 45dBA inside and the m stringent is the 55dBA outside. Commission inquiry, he noted: The proposed project will satisfy the interior noise requirements w the conditions of no music, windows closed around the perimeter the balcony areas, etc. resulting in less noise levels for the inter and exterior levels at the residences; The level of annoyance is often a very subjective response and i based on how loud the noise is; Historically in the City these outdoor dining areas have received a of complaints along the bay area; the Noise Ordinance by its Page 9 of 17 file: /N:\User3 \PLN\Shared\Planning Commission \PC Minutes\2007 \mn06- 07- 07.htm �0F10/2008 Planning Commission Minutes 06/Q'12007 probably wasn't stringent enough in controlling these sources ai the Planning Commission recognized this in the past; Some crowds are noisier than others; for the typical crowd we a saying that the noise levels would be less; in the evening, the noi: levels from Pacific Coast Highway decrease and the ambient no!: levels drop particularly after 9:00 p.m. and appears that noise th occurs on the outside patio area is going to be heard over at tl residences, not continuously as there will be interruptions due traffic, etc. but will be heard on a regular basis, and that will I annoying to the residences; When you cut down the size of the patio area you will have few people generating noise tending to have less of a synergistic effe noise; that result could be achieved with a reduction of 50% ar would take it down to a small and intimate setting and could keep it loud events down and reduce the noise heard over at tl residences; The noise generated from the patio area will travel up and bet around the top of the noise barrier and go to the residences; when bends around it loses some of its acoustical energy; putting a sol roof on there, it will be like having the noise inside a building, ar reduce the noise to 20 -22 dBA; The ambient noise levels would drop if the hours were curtailed ar the size was reduced; No noise level measurements were taken on interior noises hea . during food service to outside dining area but it is anticipated to t fairly small unless it is a very big door; Suggested mitigation measures for outside noise could be moving smoking area to the opposite side of the building from the residen and the building used as a noise barrier as well as some sort Plexiglas or noise barrier to stop noise from parking lot area tower( the residences; Cumulative affects would happen if peak noise events happen at tt same time. The noise levels projected to occur from the outdo, patio area are sufficiently below those that are occurring in tt parking lot and would not add significantly together; You don't get the same reduction of noise as traveling across grass field and that is accounted for in the noise projections. :ommissioner Toerge noted that in previous applications, noise comir om the inside during service to outside dining areas has been qui ignificant. He asked the interior seating capacity. This is an older U; ermit that was approved 20 -25 years ago and they have the right to c That they are doing there. The evolution from the "Yankee Tavern" to outh oriented clientele may be louder and more boisterous. This is a 40' xpansion application of an existing business that is currently causir ome detrimental occurrences in the area. It defies logic that would caul ?ss noise, even with the barricades and the smoking issues. It will k nited by its capacity and not by lack of clientele as it becomes moi opular. The service personnel going in and out of the location werer valuated in the noise study and knowing how loud it can be during tY vening with the door opening consistently has to be evaluated. HOWeVe will add to the noise and will be a significant impact. He cannot make th iding that this application would not be detrimental to the peace ar Page 10 of 17 file : //Y: \Users \PLN\Sbarcd\Planning Commission \PC Minutes \2007\mn06- 07- 07.htm I-F/30/2008 Planning Commission Minutes 06/0711.007 omfort of those residences and will be supporting staffs recommenda' f denial. Commissioner Hawkins noted the staff report indicates the net public a is a little over 2500 square feet and 40% would be over 1000. Mr. Reuter noted that they have 111 seats but they are allowed to have o 184 seats. It would be a 12% not 40% increase. stant City Attorney Harp noted that interior noise ordinance position it applies to commercially generated noise on residences. The spec lard from 100 feet doesn't apply but Mr. Greve's assessment w irate. Chapter 10.26.030 applies to any noise sources. iissioner Hawkins noted maybe we could condition this applica the perimeter on the bulkhead. Being awakened during the late n'. with noise generated is problematic. He suggested a discussion ion on size of outdoor structure, hours of operation and other nc ation for the existing parking tot problem. tmissioner McDaniel noted this had been previously approved and n is an opportunity to possibly give some relief. The applicant belie the noise is coming from the smoking area and it doesn't seem to case as the previous speakers have stated it comes from the park! I agree with getting some sound attenuation and relief from what now; it will be good for everyone. There also needs to be some bet trity handling those people in the parking lot and If that means ige the hours of operation, I am open to making changes to make tl c for everyone; otherwise, I would be against this application as I a rinced that this issue is not just the smoking. ommissioner Hiligren noted his agreement and that the proposed desk quite handsome so the potential addition is a good opportunity. h >ncern is the parking. Is the patio not enclosed so we don't have to ac iditional parking and so not have it counted as interior space, is that < sue? Or, is it really to solve smoking issue, which strikes me now as nokescreen that has us a little confused. We are a City where we doi low smoking on the beaches so the concept of now having a smokir ea by outdoor dining doesn't hit me as great planning. Harp noted that smoking is banned on the beaches and the interior y business including restaurants. There are some exceptions to the ru ch as a family -owned business but it gets complicated and depends c ownership and who is working there. Those State Laws were enactE marily to protect workers in the restaurants from the second hand smol the customers. My understanding is that outdoor smoking, as long as not enclosed, is fine. immissioner Hiligren noted that the applicant is willing to spend o ,000 per square foot on the addition, but this is an opportunity to sc smoking issue and perhaps spend some of the money for sot enuation outdoors as that seems to be where the issues are. It would ;e to set up something that would allow a peaceful coexistence betwE Page 11 of 17 file; / /Y; \Users \PLN\Shared \Planning Commission \PCMinutes\2067\mn06- 07- 07.htm 11239/2008 Planning Commission Minutes 06/0'1 1007 Page 12 of 17 two and by doing that it would be better for all. airman Cole noted a list of the suggestions so far: Making closing hours earlier; Building a sound barrier of some sort below in the smoking area; Reducing the capacity of the expansion either in size and /or seating capacity; Increase security; Move smoking area. Reuter answered that: He would agree that from the bottom side of the patio down to the bulkhead to be enclosed off with safety glass but none of the other area along the bulkhead as it would be a major financial expenditure; Not willing to reduce the size of the patio; Would remove two tables to reduce seating on the patio; Would make the patio covering permanent; Can't move the smoking area to the valet area due to congestion; Not willing to reduce the hours. Lepo noted that the roof cannot be permanent on the patio area. Harp noted that the Use Permit is not part of the deliberation before the fining Commission so whatever conditions are suggested and agreed n would only relate to the outdoor dining area. Commission inquiry, Mr. Reuter noted his belief is that the noise ming from the smoking area. He controls the security and we do the bi can to control the smokers as they are right next to the bulkhead a patrons in the parking lot are at least 20 feet into the parking, lot. T ilding blocks at least 90% of the valet people. There are 100% of t jokers at the bulkhead. ssioner McDaniel noted the neighbors say noise is coming fro standing in line waiting to get in and people trying to get their ca g at each other. There has to be some relief in this issue. Reuter answered he will do whatever the Commission wants such itional security, etc. If the Commission wants, all the smokers can be valet or upstairs in the room. Issioner Eaton noted that this project as previously approved on the patio to 10 p.m. during the week and 11 p.m. Friday ay. He asked if these could be reduced. Reuter answered he doesn't know how it will pencil out. The patio the lunch crowd, but he needs a certain amount of hours to pay t. Dinner is over at 10 p.m. Sunday through Thursday and Friday urday at 11 p.m. We are a full service restaurant and always inten patio to be a dinner place, on was made by Commissioner Peotter to direct staff to come a resolution of approval using the staff report approved on Fet file :HY:\Users\PLN\Shared \Plamiing Commission\PC Minutes \2007\mn06- 07- 07.htm 10 012008 Planning Commission Minutes 06/07` 1007 Page 13 of 17 15, 2006, using the 22 conditions of approval and adding conditions fo� no smoking outside on property and valet service on street side of the failed due to lack of a second. nmissioner Eaton noted that this is a significant expansion of the i particularly with the number of seats and the additional related increase. The problem is the late evening hours and he would al if it had a limit of 9 p.m. closing. n was made by Commissioner Toerge that the Planning Comn Accessory Outdoor Dining Permit 2007 -001 based upon the t Is too great and it does not meet the findings necessary. failed due to lack of a second. )mmissioner McDaniel suggested trying to approve this with the apprc 2006 adding that the conditions for glass on the patio area and closed smokers; Harp noted that the applicant could agree to have the Use nded to bring it up to today's standards. ssioner McDaniel agreed and continued that the outdoor patio din! be closed at 9 p.m. every day. Commissioner Peotter seconded t Harp noted that the conditions from the Use Permit allow for that type iification because the on -site vehicle circulation and pedestri .elation are subject to further review by the Traffic Engineer. )tion is to use the February 2006 staff approval conditions and have st me back with a resolution for approval with further conditions includi ising the outdoor patio at 9 p.m, every day, the glass enclosure below t tic, facility, and four feet of angled glass above the proposed portion roof subject to the Acoustical engineer's review, and moving t coking area by the valet parking area, and reducing the seating capac 37. issioner Hlllgren noted it would be appropriate to have the gla the front edge to mitigate the sound from folks congregating in t g lot. If the patio closes at 9 p.m. it is not necessary to have tt nal four feet of glass at the roof as we have managed this throu. ions. Perhaps an option would be closing at 10 p.m. if we are able ate the sound by the glass on the front wall. imissioner McDaniel noted that the applicant may want to come bac ask to extend their hours and so if we get it now, it would be better. M t would be to include the glass across the entire 100 foot parking area. iissioner Peotter suggested having the dining portion of the at 9 but allow them to use that patio area as a smoking area v file: //X: \Users \PLN\Shared\Plamiing Commission \PC Minutes \2007\nm06- 07- 07.htm 08/20/2008 Planning Commission Minutes 06/0?'1007 service. This way they would not be standing in the parking and the patio area is more or less sound attenuated. issioner McDaniel noted he would agree to this. nmissioner Toerge noted that we know the bulk of these alleged Code ations, we don't have inspectors or code enforcement available at nigh I the police can't handle these. This is what the residents are asking t( curtailed. When the conditions mount up to such a point that is futile I becomes unenforceable then we have to look at the project. nissioner Hillgren noted he could not support the patio as a after hours. Cole asked for consensus: urs - 9 p.m. stop service and close patio at 9:30 p.m.; Bled glass roof needed above the partition enclosure; seats; iss below the new addition; coking area by valet area iissioner Hawkins noted he could not support the motion as )orhood issue is very difficult and we cannot condition this so that will be ameliorated. ian Cole noted that staff will come back with a resolution for conditions: - 9 p.m. stop service and close patio at 9:30 p.m.; seats rss below the new addition coking area by valet area attenuated by the building Ir. Reuter noted he would like to see the hour close at 10 p.m. seven week with service stopped at 9 p.m. Eaton, Peotter, C Hawkins, Toerge ECT: Review of Preliminary Capital Improvement Program try Fiscal Year 2007 -2008 Capital Improvement Prog icy with the General Plan, Coastal Land Use Plan, and o policy documents. cr Planner Patrick Alford noted the City Charter gives the duty to ring Commission to make recommendations to the City Counci used public works projects. The preliminary Capital Improven ram is now being considered and it would be appropriate to review ram against the City's policies namely the various elements of ;rai Plan and the LCP Coastal Land Use Plan. A table has b ded for consideration that ties with these policies. Staffs re,t Page 14 of 17 ITEM NO ;cussion Only Recommended for approval by City Council file: / /Y:\Users \PLN\Shared\Planning Commission \PC Minutes\2007\mn06.07- 07.htm 1_?y -0/2008 Planning Commission Minutes 06/2112007 Page 2 of 51 (Noes: I None ITEM NO. 3 EJECT: 3 Thirty 3 Waterfront (PA2007 -004) PA2007 -004 333 Bayside Drive application for an Accessory Outdoor Dining Permit to allow the Approved struction and operation of a 636 square foot outdoor dining area in unction with the existing full - service restaurant. for Planner Patrick Alford noted staff has returned with. a resolution ,oval of the Accessory Outdoor Dining Permit with the conditions �ted by the Planning Commission at the last meeting. He noted he h with some of the Lido Isle residents that morning who request tional clarifications and provisions to be placed in the conditions. they will be presenting these during public comment for Planni emission deliberation. He said a revised resolution has been distribut evening at the dais that includes these additional recommendations. Hawkins noted Condition 6 needs to have the r adjusted. comment was opened. Al Dubrow, local resident noted changes on the conditions of approval: #7 - Extend the Plexiglas wall /screen partition on the west and sout elevations, #8 - add the Parking Plan shall be approved by the Plannin Department, #11 - add in -door noise requirements to the table, #17 - delete the use of umbrellas for shade purposes on the patio a there is no need, #18 - annual review by the Planning Department, #21 - add signage directing patrons to be courteous to residenth neighbors while outside the establishment. missooner Hawkins asked if the applicant agrees to the revise( ution, would the folks on Linda Isle be appealing this decision? lition 11 periodic review, was by the Planning Department or th( ning Commission? Dubrow answered he would not be appealing and he prefers dic review by the Planning Commission. nissioner Eaton noted that in Condition 8, the Public rtment handles review of circulation plans. Dubrow answered he would like both the Planning Department ning Commission to review the circulation plan.• Cole asked if Condition 14 was enforceable. (Mr. Lepo answered this is very broad and is intended for the understanding( �. file:/ /Y..:1Users\PLN\Shared\Planning Commission\PC Minutes\2007Umr06- 21- 07,htm �t /2p/2008 Planning Commission Minutes 06121/2007 Page 3 of 51 the proprietor as to his responsibility including having his security talk t trons. He then noted a letter from Mr. Battaile that was received the ernoon. He noted that both the noise ordinance and nuisance ordinance wide for limitations and this condition need not be part of the resolutioi it is redundant. n McCalla, local resident noted: Questions the validity of the timing of the noise testing, The base data was collected during off -peak times as to th operation of the restaurant in January and April, We are concerned with the noise levels during July througl September, The larger the crowd the more amplified the sounds are, Study done in 1998 for the City included the review of noise standards in relation to intrusion from restaurants in residentia areas, The summation included questions on this noise ordinance and th( impacts concluding that there was inadequacy of the nois( standards addressing potential impact of restaurant activity noise levels as noise sources are sporadic and of short duration, Base data used for this application was done at the Blue Water Grill. Dner Hawkins asked if the applicant agrees to the would you be appealing this decision? McCalla answered he would accept it and hope that the eAnn Benvenuti, local resident asked about the occupancy of the outdc ining area. With the area that has been cleared for the smokers, what ie limit of the number of people allowed on the patio? oner Hawkins asked if the applicant agrees to the would you be appealing this decision? Benvenuti answered if her question was satisfied as to the number pants, she would accept this. Alford gave a quick calculation on the outdoor patio, if it was cleared ng tables, results in 636 square feet with a potential occupancy of ple. He noted staff had asked at the last meeting whether t nmission wanted to restrict occupants or seats and the Commissi cted staff to restrict seats. mmissioner Eaton clarified that this number was based on the removal tables. He asked what the number would be if there was seating for Alford answered that it depends on what cleared area is left and based on 1 person for 15 square feet (seating) or 1 person per 7 t (assembly purposes) Battaile, lawyer representing previous speakers and other Linda file; /N:\Users\PLMShared \Planning Commission \PC Minutes\2007\mn06- 21- 07.htm j_"/2008 Planning Commission Minutes 06/21/2007 Page 4 of 51 residents, noted: Concerned with interior noise standards listed in the staff report w 12 decibels lower than the ambient outside, Letter from their Acoustical. Engineer points out this situation is different as clients' bedroom windows face this outdoor dining area, Noise will come directly across the water to bedroom windows, Interior noise standards are mandatory and need to be imposed m the applicant can not do something to violate policies in the Genera Plan, Wants indoor noise standards included in the conditions of approval, Would ask that the applicant be required to perform indoor noise measurements on weekend nights during the . summer with equipment that could be left in the bedrooms operating overnight, It will prove to be loud enough to disturb the residents, Applicant has to comply with the General Plan and the Municipa Code, Clients can hire their own engineer and come back when the review is up and show that there are noise standard violations, Condition 14 is general and the applicant stated he could not contro his patrons in the parking lot; you should not accept that and shouic impose specific conditions as to the amount of security and what they have to do. Cole noted the newly revised resolution has the interior listed. Battaile answered he wants exactly what is noted in the General Municipal Code (Chapter 10.26.055) as a condition of approval. ant City Attorney Harp suggested that rather than state what standards are, reference Chapter 10.26.055 so that if the stand; 1 change, this condition will equate to the Chapter. Alford noted that the condition was not meant to exempt the no dards and were included as an information item for the applicant s future operator. Reuter applicant, noted he has to make a profit and wants to be a gc Ihbor. There are now extra stipulations included that he does not ag He noted it was unfair that the neighbors got together this morn Izad of four days ago. What we had at the last meeting was the best Cole asked which ones were problematic. Reuter answered the interior noise standards and having to provide in in a year's time. The City has strict standards and there is co( rcement and they can tell us if we are out of line. Measuring tl for noises, the people knew when they bought the property that thi facing a commercial property on a very busy street. He said he w� pathetic and will do everything possible to mitigate noise.- With the w, Is are now, he will have to stop serving dinner at 8:30 p.m. in order file : //Y: \Users\PLMSilared \Planning Commission\PC Minutes \2007\imi06- 2I- 07.htm /2008 Plaiming Commission Minutes 06/21/2007 Page 5 of 51 at 9:30 P.M. tirman Cole noted there is no change in the noise standards and it is d in the conditions for information only. Reuter then noted he really did not have a concern about anything, only the way it was presented. nmissioner Hawkins asked if these are the conditions will you accept n? Reuter answered he will accept and abide by them. lie comment was closed. nmissioner McDaniel noted: #14 condition regarding the proprietor would control noise generated by patrons outside the facility. There is no way to tell if the noise is coming from these patrons and there is no way to enforce this condition and therefore suggests deleting this condition, #11 condition delete wording after Municipal Code as it is not needed, was made by Commissioner McDaniel to approve Acces Dining Permit 2007 -001 with the revised resolution and char issioner Eaton noted: # 8 condition should have the circulation plan submitted to the Planning Department not the Planning Commission as it is technical, #18 condition should be the Planning Commission, not the Planninc Department. the maker of the motion is willing to include these changes, then he �cond the motion. McDaniel agreed, Motion was seconded by Comm iissioner Toerge noted: The one -year review is problematic in this case as this is not existing patio where we add a few tables, but is a situation whe the applicant will build a several hundred thousand dollar structt and what is the Commission going to do after a year if it is problem? Our options are limited and the opportunity to add 37 more dine potentially 50 -60 more occupants to this facility only exacerbates t noise problems created elsewhere, The concept of good neighbor should be employed today. T neighbors are being asked to compromise in an effort to g� something to mitigate an impact that currently exists. To me a go neighbor would take care of that impact today and not necessai have to gain some new right to take care of the existing impact, file: //Y: \Users\PLN\Shared\Plaruiing COmmission\PC Minutes \2007 \mn06- 21- 07.htm X08/2 /2008 Planning Commission Minutes 06/21/2007 The added patrons and lumber of people who will come to th facility it is not clear to me what happens at 9:30 p.m.? Will they c inside? If they are at capacity, how is this handled? It is too much, too loud, too close to neighbors and agrees that tY neighbors did know when they bought their property that commercial facility existed, but they didn't know that an outdo dining facility would exist there, The Commission is not questioning the ability to remain in busines they are discussing whether it should be allowed to be expanded 1 outdoor dining in an area that is 215 feet away across the water froi residences that are impacted, I can't find this consistent with our finding that it won't be detriment to the health, safety and welfare of the nearby residences, so I w not be supporting the motion. mmissioner McDaniel noted his respect for Commissioner Toerge nion; however, this application had been previously. approved two :e times and if this construction had gone ahead the Commission wou have any say or ability to mitigate this which is what we are trying It might be unfair to any applicant to not approve something that hs :n previously approved. There is a limit, either build or not. t ) revsed concern about additional seating but there appears to be quite of parking there to accommodate this addition. nissioner Hawkins noted his agreement with Commissioner Toerge cents and can not support the motion even as revised. TI nission has reduced the number of seats on the outdoor patio by n percentage. He suggested the square footage should have be( ed by a similar percentage. He agreed with the requirements of 0 Ordinance as it is the Code. He disagrees about the parking as I i't believe there is sufficient parking and the applicant is not beir ed to provide more spaces. There are spaces further into the b, but they are not close to this site.. He noted Condition 14 has < tunity for the proprietor, through his valet, to control the noise of tl is in the parking lot. Cole clarified that Condition 8 should have the circulation to Public Works. Brine noted that typically the Public Works reviews the parking and circulation plans. maker of the Motion agreed to make that change. Page 6 of 51 Mr. Alford clarified that in Condition 6, the beginning hour is 9:00 a.m. The maker of the Motion agreed. Chairman Cole noted this is a long- standing restaurant and the operator has shown an ability to react to the concerns of his neighbors. With the conditions outlined in the resolution it should improve an existing situation o he will be supporting the motion. yes: Eaton, Cole and McDaniel file : /N: \Users\PLN \Sharcd \Platming Conunission\PC Minutes \2007\mn06- 21- 07.htm 08/20/2008 Planning Commission Minutes 06/21/2007 Hawkins, Ti Peotter and Chairman Cole then suggested that the Commission take Item 5 prior to Item 4 as the majority of the members of the audience in attendance were or that item and that item 5 could be dispensed quickly. was made by Commissioner Eaton and seconded by to take Item 5 first. yes: Eaton, Hawkins, Cole, Toerge oes: None Code Amendment 2007 -005 Title 20 (Zoning Code) of the Newport Beach Municipal Code :d to revise definitions, land use classifications, and regulati to group occupancies and short -term lodgings? Hillgren arrived at 7:45 p.m. in time to hear and vote on following excerpt is written verbatim from the audio recording of Cale: What is in front of the Planning Commission is a proposed Col Amendment to Title 20 which is related to the residential ca facilities of the City, These proposed changes have come from suggestions of tf Planning Department, the City Attorney's office and outside couns and the City Council, Asked that comments be focused on what is in front of us, It is not appropriate to comment negatively or personal in natu regarding the people who use the care facilities, commen regarding perceived decrease in property values have been deemE discriminatory and are not appropriate for this evening, Any specific complaints on specific locations is not in front of t tonight and that should be directed to the City's Code Enforcement, Thank you for not being repetitive, We will allow a couple of spokespersons for the different group little longer time up front, after that all speakers will be required keep to three minutes for the first hour and we may reduce that tirr if it goes on, Respectfully ask for your consideration in all those areas. iissioner Hawkins, special counsel had referred us to 42USC ing diminution of property values. That Code Section has a i F9, which talks about substantial physical damage to propel like to have special counsel address that issue, or the City Attor Page 7 of 51 !`� M Continued to 07/19/2006 file:HY: \Users \PLN \Shared \Plaiming Cotmnission\PC Minutes \2007 \mn06- 21- 07.htm 08/20/2008 1�2 City Council Attachment D Planning Commission Meeting Minutes dated May 19, 2011 13.3 i34 NEWPORT BEACH PLANNING COMMISSION MINUTES Council Chambers -3300 Newport Boulevard Thursday, May 19, 2011 REGULAR MEETING 6:30 p.m. A. CALL TO ORDER - The meeting was called to order at 6:30 p.m. B. PLEDGE OF ALLEGIANCE — Led by Commissioner Toerge C. ROLL CALL PRESENT: Ameri, Hawkins, McDaniel, Toerge, and Unsworth ABSENT (EXCUSED): Eaton and Hillgren Staff Present: James Campbell, Acting Planning Director, Gregg Ramirez, Senior Planner, Leonie Mulvihill, Deputy City Attorney, Janet Brown, Associate Planner, Kay Sims, Assistant Planner, and Marlene Burns, Administrative Assistant D. PUBLIC COMMENTS — None. E. REQUEST FOR CONTINUANCES — None. F. CONSENT ITEMS ITEM NO. 1 Minutes of May 5, 2011 Commissioner Hawkins offered the following corrections to the minutes of May 5, 2011: 1) Page 1, Public Comments, Commissioner Hawkins recalled that there was general consensus among the Commission that the Planning Division should regard public speaker Purcell's comments as "complaints" which should be then forwarded to Code Enforcement, 2) Page 1, Minutes, Mr. Hawkins suggested that if corrections are made to the presented minutes, the motion should read, "minutes... as corrected," 3) Page 3 of 6, Mr. Hawkins recalled that he seconded the motion related to the Irvine Company Project item. Motion made by Commissioner Hawkins and seconded by Commissioner Toerge, and carried (5 — 0) to approve the minutes as corrected. AYES: Ameri, Hawkins, McDaniel, Toerge, and Unsworth NOES: None. ABSENT: Eaton and Hillgren ABSTAIN: None. G. PUBLIC HEARING ITEMS ITEM NO. 2 3- Thirty -3 Waterfront Restaurant (PA2011 -041) 333 Bayside Drive . Staff report and a brief PowerPoint Presentation was provided by Janet Brown, Associate Planner. Brian Moore, Newport Beach Police Department was also present. The application consists of a request for a new conditional use permit to extend the hours of operation granted by Accessory Outdoor Dining Permit No. 2007 -001 for an existing outdoor dining patio from 9:00 a.m, to 9:30 p.m. daily to 9:00 a.m. to 1:00 a.m. daily. The hours of operation for the interior portion of the Page 1 of 6 135 NEWPORT BEACH PLANNING COMMISSION MINUTES 05119/2011 existing restaurant are 9:00 a.m. to 2:00 a.m. daily, as allowed by Use Permit No. 3325 (amended). If approved, the new conditional use permit will supersede the existing use permit and accessory outdoor dining permit, and an Operator License will be required. Associate Planner Brown noted that subsequent to the publication of the staff report, new additional complaints were received from residents of Linda Isle and were distributed to the members of the Planning Commission. Staffs recommendation was developed utilizing input from the City's Code Enforcement Division, Harbor Resources Commission, and Police Department. Associate Planner Brown noted that based on this input, it appeared that the applicant had taken corrective measures to comply with the existing conditions of approval associated with this use. Staff and Commission discussion ensued regarding the Police Department's ability to enforce a reduction of operational hours if the applicant had an "operator's license," the fact that the conditions of the operator's license apply to the entire subject establishment, that sufficient "facts and findings" must be presented to curtail operations at the subject establishment, the prohibition of certain activities under Condition of Approval Number 21, and the circumstances under which the Conditional Use Permit would return to the Planning Commission for review and/or revocation. Jeff Reuter, applicant, expressed concerns that his project was not the initiator of the majority of complaints received regarding the project, rather, the concurrent reconstruction of the adjacent marina and docks contributed significantly to the environmental noise, that the outdoor patio use was not an extension of the bar, and that the environmental noise would reduce once the construction of the marina and docks was completed, and that the agreement for the operator's license would subject the whole project to stringent conditions in order to obtain additional hours for outdoor dining service. Discussion ensued between the Planning Commission and the applicant regarding the "fair hearing" process, the dining "cycles" of patrons, the demographic and dining differences between patrons utilizing the interior and exterior sections of the restaurant. Chair McDaniel opened the public hearing and public comments. Frank Battaile, an attorney representing several residents living adjacent to the subject property, spoke in opposition to the extension of the hours for the exterior of the restaurant, that previous noise mitigation measures have not been successful, expressed concerns regarding the potential illegality of delegating the authority of the Planning Commission to the Police Department and/or City Manager, without the ability for appeal back to the Planning Commission, the implication that the Police Department is supportive of this project as described in a previous written memorandum, and that the decreases in noise over the past months were a result of patrons not using the patio during the colder winter months. Dr. David Benvenuti, resident, stated that he was originally in support of the restaurant when it first opened, however, he expressed concerns that the noise impacts are getting worse. He further stated that residents are not always calling Code Enforcement even though incidents are occurring, that the use of the restaurant is primarily a "club and party" use, rather than a dining use, and that he has filed formal complaints with the Police Department regarding the deck being open later than the current restricted hours. Donna Viana, Vice President, Linda Isle Homeowners Association, spoke in opposition to the extension of the patio hours, that the letters in support of the project were "form" letters, and stated that although she enjoys and has visited the restaurant for lunch and early dinner dining, she noted that each time she has visited the restaurant, the windows are always opened, contributing to the ambient noise impacts to the adjacent neighborhood. Page 2 of 6 ISO NEWPORT BEACH PLANNING COMMISSION MINUTES 05/19/2011 Dan Purcell, Corona del Mar resident, stated that he was not expressing support or opposition to the project. He did note his opinion that the restaurant was primarily a "late at night' nightclub and that the Planning Commissioners and City Council have a fiduciary responsibility to see "for themselves" what activities are occurring at the subject properties they are discussing. Don McCalla, 22 year resident, acknowledged that the current restaurant applicant has done a good job in mitigating certain matters (valet and smoking issues), referenced documentation compiled by his spouse which detailed complaints regarding the subject property since July 2010, noted that there are no mutually- agreed upon sound studies that have been conducted, and expressed concerns that the restaurant will continue to produce ambient noise and other negative impacts due to expansion of the patio use hours. He referenced the lack of attenuated windows in the outdoor dining area, and the types of uses he has observed at the subject property, including "shooter parties." Sandy McCalla, submitted a document for the record which documented her observations of noise impacts since July 2010, she noted that deck dining cannot be projected to be for older patrons only, and also noted that the ambient noise is audible to the adjacent residences even with windows closed, and that the restaurant is primarily a "club and party" destination. In addition, she referenced incidences of live music on the patio. Leann Benvenuti, spoke in opposition to the project, noted that the noise is "intolerable" during the summer months, and expressed concerns that the ambient noise level would only increase if the hours of patio operation were extended. Ms. Benvenuti acknowledged the improvements that were made after the applicant moved the valet and smoking sections to the alternate side of the subject property. Chair McDaniel closed the public comments and the public hearing. He reopened the public hearing in order for the applicant, Jeff Reuter, to respond to the public testimony. Jeff Reuter, applicant, stated that the matter before the Commission was related to dining and that patrons are not allowed on the dining deck unless they eat dinner. Alcohol -only sales are not permitted. Discussion ensued among Commission, Staff, and Mr. Reuter, related to the design scope of the outside dining area, the historical requirements that governed the outside patio design development and the type of dining and restaurant use that occurs during different times of the evening. Chair McDaniel closed the public comment and public hearing. Detective Moore, Newport Beach Police Department, provided a report related to the submitted memorandum regarding the subject property. He indicated that Police Department personnel visited the site during various hours and, occasionally in an undercover capacity to observe activities during various restaurant hours. He mentioned that the adjacent docks could be contributing to the ambient noise and that patrons were not observed on the patio after 9:30 p.m. Detective Moore indicated that only a small percentage of patrons are consuming a full meal after 11:00 p.m. and the majority of patrons after that time were participating in cocktail service. Commissioner Toerge, Hawkins, and Chair McDaniel indicated that they would not be supporting the proposal. Commissioner Hawkins suggested that he would support a motion to deny "without prejudice," have the applicant respond to the feasibility of enclosing the patio structure, and to have staff work with the applicant to come to a compromise solution or general plan amendment and address required parking. Page 3 of 6 i37 NEWPORT BEACH PLANNING COMMISSION MINUTES 05/19/2011 Commissioner Ameri suggested that the applicant enclose the entire patio to eliminate any noise impacts and to possibly consider a variance for the parking requirement. Motion made by Commissioner Hawkins and seconded by Commissioner Toerge, and carried (5 — 0) to deny the approval of Conditional Use Permit No. UP2011 -007. AYES: Ameri, Hawkins, McDaniel, Toerge, and Unsworth NOES: None. ABSENT: Eaton and Hillgren ABSTAIN: None. 7 NO.3 Fisher Residence (PA2010 -034) 3725 Ocean Boulevard Staff repX and a brief PowerPoint Presentation was provided by Assistant Planner Kay The applicant quests approval of a variance to allow a proposed single - family dwellin o exceed the 24- foot height limit r flat roofs within the R -1 (Single -Unit Residential) Zoning Dis 'ct. Additionally, the proposed single -fa \intoe would exceed the "top of curb" height limit for pro erties on the bluff side of Ocean Boulevarant also requests a modification permit to allow a proposed single - family dwelling to encroaquired 10 -foot front and 4 -foot side setbacks aissons), and site - retaining walls (and caisson railings adjacent to the side property lines hick exceed the 6 -foot height limit allowed within areas. Chair McDaniel opened the public herring and public comments Desmond Fischer, property owner and Xplicant, stated th the existing property is a "blight" in the community and that his proposed project provide an hanced visual presentation for both the City and the adjacent residents, discussed the thre matters r which he is requesting variances, that he has tried to address all matters presented by adja t ighbors, and to mitigate noise, traffic, and other construction impacts for the duration of the project. Discussion ensued between the Commissiono and the plicant regarding fireplace "exhaust" vents for the project and the preliminary title report a kd associated potkntial litigation matters. The applicant stated that all matters related to the Title had b n resolved and we effected in the title report submitted with his application. John McInnes, architect for the plicanfs subject property, presente exhibits of the proposed project and addressed the proposed sou ions to concerns expressed by adjacen roperty owners. Mr. McInnes noted that the project will no require closure of Ocean Boulevard, const tib access is not proposed to extend beyond the "predofninant line of development" existing on the prope , and that a study was conducted regarding v ous driveway alternatives and percentages of slope and th design, as submitted, was the best alterna ' e. Discussion ens d among the Commission and Mr. McInnes regarding the proposed ceil heights and required em ency exit provisions and equipment. Dan PLjr6ell, Corona del Mar resident, supported the applicant's efforts to mitigate the imps s of the project. Page 4 of 6 ISO City Council Attachment E Letters received in Support and Opposition to the Project 139 i40 Correspondence Item No. 2a RUCKV -W BY PLANNING 11BPARTMPNT 3- Thirty -3 Waterfront Restaurant PA2011 -041 LAW OFFICE OF FRANK W. BATTAILE 110 Newport Center Drive. Suite 200 Newport Beach. Caliromia 92660 May 17, 2011 Members of the Planning Commission City of Newport Beach 3300 Newport Blvd. Newport Beach, CA 92663 MAY 10 2011 t9ay1Ti7Y,-QEa NEWPORT BEACH Fax(949)759. -1853 Email: Frank t0aaailel-amcom Re. Planning Commission Agenda Item No. G -2 for May 19, 2011 Members of the Planning Commission: I am writing on behalf of Don and Sandy McCalla and David and Leann Benvenuti and Mr. AI Dubrow. Mi-. and Mrs. McCalla reside at 105 Linda Isle. Mr. and Mrs. Benvenuti reside at 106 Linda Isle. Mr. Dubrow resides at 104 Linda Isle. The McCallas', the Benvenutis', and Mr. Dubrow's homes are on Linda Isle directly across the water from 3- Thirty -3 Waterfront. They are heavily impacted by the noise already generated by the 3- Thirty-3 restaurant and bar, and especially by the noise from the outside dining area. They strenuously oppose the application to extend the hours for outside dining. The noise is already intolerable, though my clients accept it because in 2007 they agreed to the compromise closing time of 9:30 PM. However, because of the already excessive noise 3- Thirty -3 cannot satisfy the necessary findings for approval of the extended operating time. I draw your attention to the NBPD memorandum, which is Attachment No. 3 to the Staff Report. On page 2 there is a table showing that there were 99 "call/incidents" during the period March 30, 2010 through March 30, 2011. They are all calls for disturbances arising from drunkenness, fighting, noise and other crude behavior. Into the late night hours 3-Thirty-3 is NOT an elegant high -end restaurant. It is a single's liar and the boorish conduct it generates should be, kept inside or moved to another location. The time for using the outside dining area should not be extended to 1:00 AM or to any other lime beyond the current closing time of 9:30 PM. You Denied the Requested Approval in 2007. When the application to approve the outside dining area was considered by you in 2007, the staff recommendation was to deny the application due to the noise that would negatively impact nearby residences. (Staff Report for Agenda Item No_ 2, June 7, 2007.) In particular, staff determined that the required finding that 141 Page 2 of 4 "Tire establishment, maintenance or operation of the accessory outdoor dining will not, under the circumstances of the particular case, be. detrimental to the health, safety, peace, comfort and general welfare of persons residing or working in the neighborhood or injurious to property or improvements in the area" could not be made. ad., at pages 8 -9.)u Staff was absolutely right and you agreed. My clients and 3-Thirty-3 ultimately agreed to a compromise that would allow the outside dining area to go into operation, constrained by noise attenuating devices and a requirement to close the outside dining area at 9:30 PM. The only things that have changed since then is the proof in actual practice that the noise attenuating windows and canvas roof do not work and, as discussed further below, the addition of docks with to -go alcohol service that firrtirer increase the noise, in addition to creating obvious hazards from drunk boaters. Therefore, findings F -1, F -2 and F -3 in the current staff report cannot be justified. The McCallas, the Benvenutis, and Mr. Dubrow are entitled to respectful consideration of the impact on the quality of their lives. My clients are frankly puzzled at what appears to be a level of deference to the owner of 3- Thirty-3 and a corresponding level of indifference, if not outright contempt, demonstrated in the past by some City officials toward them. It is as if commercial land users occupy a superior position over more residents. The McCallas, the Benvenutis and Mr. Dubrow are tax - paying citizens who have rights to peace and quiet. Those rights are not theoretical. They are embodied in various express provisions in the City's own General Plan and Municipal Code. And yet, 3- Thirty-3 has been allowed to ignore various General Plan policies and Code provisions, particularly with respect to limits on interior noise levels. 2 At the hearings in 2007 my clients were told by one planning commissioner that if they didn't like the sound of drunks screaming obscenities at 2:00 in the morning they should close their windows. My clients know from actual experience over the past 4 years that closing their windows does not block tine noise. They would be regularly awakened and have a night's sleep mined. They would be utterly unable to have their grandchildren spend the night without going through a detailed explanation of the mating habits of drunk aging baby - boomers. But more important, why should my clients have to close their windows on a hot summer night? To accommodate vulgar drunks? To accommodate the applicant's profit motive? Are they second class citizens? Do YOU have to close YOUR windows out of deference to rude and inconsiderate neighbors? The Ongoing Noise Is Substantial and Violates the policies of the General Plan as well as the NBMC. My clients compromised substantially when the current owner of 3- Thirty -3 obtained his last CUP amendment in 2007. Out of respect for the deal they made at that time they have refrained from complaining about the noise emanating from the outside dining area up to 9:30 at night. However, despite my clients' choosing to honor their deal and not complain about that noise, the noise has been substantial. The supposedly noise attenuating glass and I See NBMC section 20.82,050, 2 See, General Plan Noise Element, Table N3 and NBMC sections 10.26.005, 10.26.025 and 10.26.030. 142 Page 3 of 4 canvas roof simply do not work. And to be clear, 3- Thirty -3 is not just a restaurant. It is a singles' bar. After 9:30 PM a singles' bar is all that it is. The noise coming from the outside dining area and from the parking area at closing time consists of loud shouting of obscenities and sexual cat - calls. It is not trivial. It is impossible to sleep with that level of noise. With the current closing time for the outside dining area of 9:30 there is no interference with normal sleep times. However, if the outside dining area is open past 10:00, it will definitely and dramatically impact my clients' right to peace and quiet in their own homes. Drunken Boaters. An added source of noise arises from the installation of new docks subsequent to 3- Thirty-3 obtaining their last CUP amendment. In the past 3- Thirty -3 actually advertised alcohol for boaters. Now, in addition to drunken revelers on the outside deck and in the parking lot, there are drunken revelers staggering up and down the pier directly opposite my clients' homes. 3- Thirty-3 and the City are apparently prepared to deal with the potential liability arising from encouraging drunken boating. But, the McCallas, the Benvenutis, and Mr. Dubrow are not prepared to deal with the noise and vulgarity it generates. Nor should they have to deaf with it. The disturbance up until 9:30 is bad enough. It should not be permitted to continue any later than that. The NBPD Memorandum. The Memorandum from the NBPD dated April 4, 2011 is puzzling. (Staff Report, Att. 3.) It was obviously written with at least some input from the applicant. Why would the NBPD write that 3- Thirty-3 "provides a high quality menu in a relaxed, but elegant atmosphere "? (Staff Report, Alt. 3, p. 1.) The memorandum is based in part on self - serving statements from the applicant. "After several discussions with Mr. Reuter it appeared as though he took reasonable steps to mitigate the noise on the docks ...." The only reason the noise on the dock or the outside patio have recently declined is the winter weather. The noise always declines in the winter. It always becomes intolerable again in the summer. The memorandum includes a table with objective data showing that there were 99 "calls /incidents" during the period March 30, 2010 to March 30, 2011. (Staff Report, Att. 3, p. 2) They are all calls arising from public drunkenness, noise, DUI's, fights, and noise. Is this evidence of "a relaxed, but elegant atmosphere "? 3- Thirty -3 is not an "elegant" restaurant. It is, at least after 9:30 PM, a single's bar generating boorish behavior that should be moved to another location. Impact on Properly Values. Another issue of concern to my clients is the obvious impact on their property values. If they sold their homes they would have to disclose that the new owners would be confronted by shouted obscenities and vulgar sexual displays into the late night hours. Their homes certainly would not be suitable for families with young children, or for anyone at all with sensibilities more refined than those of a drunk porn star. The McCallas, the Benvenutis and Mr. Dubrow have attempted to be good neighbors. The owner of 3- Thirty -3 has said in the past that if the McCallas and the Benvenutis and Mr. Dubrow did not want to put up with noise from commmercial development, they should not have bought property where they did. He has it exactly backward. My clients lived in their current homes for at least 15 years before 3- Thirty-3 moved in. During all of that time the space where 143 Page 4 of 4 3-Thirty-3 is now was occupied by commercial users and none of them caused any disturbance. The most recent occupant prior to 3- Thirty -3 was a restaurant named The Yankee Tavern. During all of the years that The Yankee Tavern was there my clients did not make even one noise complaint. The McCallas, the BenvemUis and Mr. Dubrow are NOT being overly sensitive, nor do they simply like to complain. If the owner of 3- Thirty-3 did not want to have to respect the rights of his residential neighbors, then he should have leased property elsewhere. He is the inhuder, not the McCallas and not the Benvenutis and not Mr. Dubrow. Conclusion, Given 3- Thirty -3's ongoing noise violations and disruption of the neighboring residential community, you cannot make the necessary findings to approve this application. It should be flatly denied. In fact, the City should instead require additional noise studies for the operation to continue even to 9:30 PM and should flatly prohibit tine sale of "to- go" alcohol to boaters. Very Wly ours / GI n W� attade� cc: Clients 1-44 May 17, 2011 RECEIVED BY Donald and Sandra PLANNING DEPARTMENT 105 Linda Isle r Newport Beach Ca. 92660 MAY 18 2011 CITY OF NEWPORT BEACH ReTlanning Commission Agenda Item No. G -2 for May 19, 2011 To whom it may concern: My wife Sandy and I have lived at our present address, 105 Linda Isle, for the past 22 years. During the first approximately 15 years of our residency on Linda Isle the Yankee Tavern Restaurant occupied the space where the 333 Waterfront Restaurant Is currently located, directly across the narrow channel from our home. The distance between their building and our• home is only 200 feet During this 15 -year period the Yankee Tavern never once caused a noise problem that required assistance from city staff or the police department. Since 333 Waterfront Restaurant arrived in our neighborhood, excess noise has been a nonstop issue for adjacent homeowners located at 104,105 and 106 Linda Isle. Beginning in 2003 or 2004 the noise issue involved excessive noise generated in the parking Int and waterside smoking areas, While resolution of this problem will never be perfect we with City Staff help were able to negotiate a solution which required moving the Valet and Smoking activities to an area in front of restaurant which greatly improved the problem. Shortly after this initial encounter with the 333 Waterfront Restaurant noise issue we were suddenly confronted with what we were told was a fully approved application for an External Dinning Deck permit lacking only a final noise study. This surprise development required that we, the affected homeowners one again quickly martial resources to try to have sonic input into the final design of the structure and the development of . conditions of use. This effort required engaging legal council and a sound engineering firm to adequately represent our interest. This was time consuming and expensive. The time required from Initial notification of the application and final approval of the negotiated plan with conditions, took about 1-1\2 years hrom September of 2005 to final approval in June 2007. Resolution No. 1724 is the result of 11 \2 years of hard negotiations and hearings to arrive at fair resolution of proprietor and homeowner concerns, neither side getting everything it wanted. An issue that gets lost in the discussion is that we as homeowners never ever tried to make the case that the proposed outdoor dinning deck was not an appropriate use given Its close proximity to our 145 existing residential homes. This given the abuse we are experiencing make's us wish we had made this case. The outdoor dinning deck only opened for business in May 2010,whlch establishes that the outdoor dinning deck has only been in operation for one high impactsummer season. I submit to you that if you analyze the complaintlogs of both Newport Beach Code Enforcement and Police Departmentyou will find most of the complaints were logged by the three impacted homes on Linda Isle and that all or certainly most of these complaints occurred during high hupactsummer season beginning In May 2010 and ending in September 2010. 1 personally called Code Enforcement so many times that I was called by Code Enforcement officer Matt Cozyland and asked to please call the Newport Beach Police directly to report noise issues at 333 Waterfront so that a black and white could be dispatched to validate my complaints. My complaints included: 1. Windows and roof ports being open after 10:00 PM, 2. Windows being open after 7:OOPM 3. The use of amplified music. 4. Continued service after 10:00 PM. S. Excess noise generated by patrons. 6. Private parties, All the infractions listed above are expressly prohibited under the conditions of use of Accessory Outdoor Dinning Permit No. 2007 -001. The bottom -line for my wife and I Is that given our experience to date It would be impossible for us to have the quiet enjoyment of our home that we have a right to if the hours of operation of the 333 Waterfront Restaurant Outside Diming Deck are extended to 1:00 AM Daily. The reason is that there Is no way to attenuate the building such that noise coming from the dinning deck would be acceptable during hours it is permitted and certainly not during the hours being applied for by 333. The fact of the matter Is that many times during last summers dialling deck inaugural, noise generated from the deck exceeded anything a reasonable person should be expected to accept and 1 am sure exceeded the City of Newport Beach Noise Ordinance. If the as homeowner could afford to keep a continuous noise monitoring system in place I am sure you would find that even now there are, and will be many occasions during which noise generated from the dinning deck exceeds the current City noise ordinance, The existing closing time of 9:30 PM is reasonable, allowing people in the adjacent homes to go to bed without being constantly awakened by loud noise being generated from the dinning deck. I am also sure that our property values will be negatively impacted if this request is granted. In closing my wife and I ask that you save us from this unreasonable request to extend the operational hours fo'the333 Waterfront Restaurant Outside Dinning Deck. Please vote NO oil this request to extend operational hours to 1:00 AM in the morning. Thank You Donald and Sandra McCalla 140 William R. Piercey 71 Linda Isle, Nenort Beach, CA 2660 May 18, 2011 City of Newport Beach Planning Commission 3300 Newport Boulevard Newport Beach, CA 92663.3816 Planning Commissioners: RECEIVED BY PLANNING DEPARTMENT MAY 18 2011 CITY OF NEWPORT BEACH It has been brought to my attention that the restaurant 3 Thirty 3 Is applying for a permit to extend their hours of operation on the patio. I frequently walk over from my residence on Linda Isle and have a late night dinner. I would prefer not to have to dine In the bar with the younger people, and cannot figure out why the fully enclosed patio Is not being utilized In the evenings, In the summertime It does not even get completely dark until 9:00 pm., and we then decide to have dinner. I have eaten on the patio many times after 8:30 and been told that I must "hurry and finish' because they are supposed to clear the area by a certain time, which makes absolutely no sense to me because even when the patio is full the only thing you can hear is quiet conversation. I know several of my neighbors have complained to the management about keeping It open later, but they say there Is nothing they can do about It. For the benefit of all the people In Newport Beach, especially those that can WALK to the restaurant and who prefer NOT to eat before 9:00 pm on some evenings, please allow them to serve dinner on their beacitiful deck until they close the restaurant. Sincerely, Bill Piercey 14:7 MAY 18 2011 May 18, 2011 CITY OF NEWPORT BEACH To Whom it may Concern: My business is located just down the street from 333 and we dine there quite often. There are many times, especially during the summer that we do not get a chance to eat before 9:00pm. As you are aware it is still light out until 8:30pm and we have been told by the hostess's at the restaurant that we cannot sit on the patio. I have no idea why they are not allowed to seat people on their outside dining area, it has windows all the way around and the bar is on the inside. My wife and I like to sit in front of the fireplace and enjoy a quiet dinner overlooking the bay. It has been a big frustration for us and I understand that they are trying to get it approved so they can stay open later. PLEASE allow them to serve food late into the night so that we do not have to eat junk food on our way home. T44tiTli,you for your help, David L. New President 1-42 So kjo, Ike 660 Harbor IsLaKa DrLve NewporE Seack, CA 92660 ucrivt,,D BY PLANNING UEPARTMPNT MAY 18 2011 CITY OF NEWPORT BEACH To wkom LE ma� coKcerK, I am a LocaL resLcteKE UA Eke close proxLwLEj Eo S -TkLrE j -3 oK $a jsCAe DKve, I UKaersEaKck EkaE someotie kas peE RoKeA Eo leave Eke paRo close at 9pw - EkaE wouLd be a EerrLbLe AsappotKEweKE because LE Ls oKe of Eke oKL� places aE EkaE Rme EkaE I caK drab a W Eo eaE wLEk rAj graWdckLLdreK LK our KeLgkborkood, SL1�cerely, Sai��jA••�I�e X49 Jim Shab 600 Harbor Island Drive Newport Beach, CA 92660 May 17, 2011 To whom it may concern, RECEIVED BY PLANNING DEPARTMBNT MAY 1'8 201i CITY OF NEWPORT BEACH I am a local resident in the close proximity to 3- Thirty-3 On Bayside Drive. I understand that someone has petitioned to have the patio close at 9pm - that would be a terrible disappointment because it is one of the only places at that time that I can grab a bit to eat with my children after their sports activities in our neighborhood. 150 sac "d d ' 549�fW6 Id"d Dative RECEIVED T PLANNING DEPARRTMENT 'lZee?OW 6eaed, 64 92660 949, 675, 9791 MAY 1,8 2011 CITY OF NEWPORT BEACH 17, 2011 7a a4am a w" eowaw, 9 aar a %tide aeaddeat & the e$aae Ariraxi� to 3- -7&w#-3 ow Va#4* Oahe, 7 aadenataad t/rat aooaeoae 4w Aemiaed to kave llre AwY4 d4ae ae 9Aot — tlsat WOW 4 a eMVRe d4 14 ., zoiatesreat Pr MWe a ro oae 4 the 04 f4Ua ae drat Mare tlrae 9 eaa pd a �a to eat weds " pu delyd Aw is a" aetyl"od, S[aevr41 Rt� I ICU ��� Sue "d $d R ®z Crowell RBCFIvBD By 560 Harbor Island Drive PLAWNGDBPARTMFNT Newport Beach, CA 92660 MAy 18 2011 cyry OF NEWPORT BEACH May 16, 2011 To whom it may concern, I am a local resident in the close proximity to 3- Thirty-3 on Bayside Drive. I understand that someone has petitioned to have the patio close at 9pm - that would be a terrible disappointment because It is one of the only places at that time that I can grab a bit to eat with my children and grandchildren in our neighborhood. Sincerely, Ro 1�2 Paula Earl 140 harbor Island Drive Newport Beach, CA 92660 949.675 -8697 May 17, 2011 To whom it.may concern, 12ECEIVED BY 1'LANNING D13PARTMFNT MAY 18 2011 CITY OP NEWPORT BEACH I am a local resident in the close proximity to 3- Thirty-3 On Bayside Drive. I understand that someone has Petitioned to have the patio close at 9pm - that would be ashame because That is the only place at that time that I can grab a bit to eat with my children after their sports activities. Please do•fiot��et this happen. i n Siu'�eely r `l W/o Paula Earl 1153 Steve Layt ®n 429 Harbor Island Drive Newport Beach, CA 92660 May 17, 2011 To whom it may concern, RECEIVED BY PLANNING DEPARTMENT MAY 18 2011 CITY OF NEWPORT BEACH I live in walking distance to 3- Thirty -3 and I understand that they have.to close their patio at an earlier time because of another local resident that is complaining of noise. I meet clients there on various occasions and have never had a noise issue. Please take under consideration that the other local.neighbors enjoy the late night eating on the enclosed patio. S 6i i54 John Campbell 140 Harbor Island Road Newport Beach, CA 92660 949- 233 -3838 RECEIVED BY PLANNING DEPARTMENT MAY 18 2011 CITY OF NEWPORT BFAOH May 17, 2011 To whom it may concern, 1 am a local resident in the close proximity to 3- Thirty -3 On Bayside Drive. I understand that someone has petitioned to have the patio close at 9pm - that would be a terrible disappointment because it is one of the only places at that time that I can grab a bit to eat with my children after their sports activities in our neighborhood. cii�er j+, john Car Ifi Abell Mary Pat Earl 140 Harbor Island Road Newport Beach, CA 92660 949 - 295 -9559 May 18, 2011 To whom it May Concern, RECEIVED BY PLANMNG DFPARTMF,NT MAY 18 2011 CITY OF NLWPORT BEACH I am a local resident in the close proximity to 3- Thirty -3 On Bayside Drive, I understand that someone has Petitioned to have the patio close at 9pm - that would be ashame because That is the only place at that time that I can grab a bit to eat with my children after their sports activities, Please do not let this happen. incerely, Mary Pat PAUL T. SALATA 98 LINDA ISLE NEI WPORT BEACH, CA 92660 949 - 263.0727 May 18, 2011 To Whom It May Concern: I am an owner /resident at 98 Linda Isle and am in favor of the 3Thirty3 Restaurant being allowed to have their patio dining hours be extended to serve dinner until I :OOam. I enjoy being able to walk over to the restaurant for an evening meal on the patio with my family and friends. The extended dining outside should be permitted. as the water location is unique and leads itself to a very pleasant atmosphere, I am familiar with Sol restaurant's outdoor area and 3Thirty3 Restaurant's patio design already lends itself to be more favorable. I believe that the 3Thirty3 Restaurant will keep in compliance of the normal sound regulations for the city. Thank Paul T. Salata 98 Linda Isle Newport Beach 949- 263 -0727 '�LI`N�ING 1)I1C�AI ;1' MAY � 0 2011 CIT `r Not, T � C1� 0 -V Jimmy Smith 75 Linda Isle Newport Beach, CA 92660 City of Newport Beach, Thursday, May 19, 2011 I am a very frequent customer at 333 restaurant, and eat there at least twice a week. I have been dining on the outside deck since the day it was built. My wife and I walk over there usually after the kids have been fed and are doing there homework. Unfortunately,, we are usually informed by the hostess that we will have to cut short our stay because they need to close that Dart of the restaurant. For the life of me, I CAN NOT figure out why that is necessary. They have the windows closed everytime I have ever been there, I ann assuming because there is a strong breeze that comes straight down the channel, and it would be quite cool. I have yet to see the roof opened up, but I ann told that it is opened sometimes during the clay. It is of great concern of mine to try and have the restaurant be able to serve clinner or simply have a glass of wine after "normal" dinner hours. Not all of its are able to eat by 8 :30 - 9:00 at night regularly, andit is the only place that has late night dining close by. They do a spectacular job of policing the place, and usually have two to three guys snaking sure that everyone behaves. I have noticed people exiting the restaurant nest door where they get somewhat rowdy, and I have never seen any door people ever. Those people sometimes then proceed clown to the clocks and get on there boats. Unfortunately I thin]( that any noise or problems might be misdirected, as it pertains to the 333 patio. I sincerely hope that you will allow the (lining portion of this fine restaurant to be able to service the surrounding community late into the evening. The area has two restaurants, a gas station with a late night convenience store, a car dealership, and a full shopping center in the immediate area. The last place I would worry about any noise are pule older people having dinner in a completely enclosed area. nyCU11"D BY PT.ANNIN6 Dj2VARfMENT my 19 MI CISY OIc l wPOV BEACH Thursday, May 19, 2011 Don Christy Jr. # 72 Linda Isle Newport Beach, CA 92660 Planning Commissioners: It has been brought to my attention that there might be a resolve ill the very frustrating situation of dining oil the outdoor patio at 3 Thirty 3. 1 am a long time resident of Linda Isle and enjoy, eating out a lot more than most people. 1 was very excited when the construction of the patio was completed; we finally had a place on THIS side of the harbor that we could eat, (somewhat) outside and enjoy the water view which is why we live in Newpoit. I was very upset, and it took quite some time to get used to being asked to leave while having dinner. Apparently the filly enclosed patio needs to be vacated by 9:30 PM and they are very strict about it. During the summer when we dune out almost 5 nights a week, we enjoy going over to 333 to watch the sunset which, as you know, can be 9:00 at night! I have eaten on the patio probably 50- 60 times and have NEVER heard any noise louder than the waterfall. I have dined on many occasions when the patio is fill and we had to wait for a table. We usually wait outside so they can find its since they have no paging system and the inside bar sometimes gets fldl as well. You call not hear ANY sounds emanating from inside the building, even if you are standing oil the mezzanine, directly outside the front door. If you have not already done so, I ask that you take a few minutes and stop by at their busiest hour and check out the patio. You will find about eight tables of people quietly having a conversation, the loudest noise you will possibly hear is a semi -truck barreling down the Coast Hwy. I ask that you allow them to serve dinner until late into the evening so that all of us that are in walking distance, especially those that have a few cocktails (I am not one of them), have SOMEPLACE to go and enjoy a nice meal after nine o'clock. Please don't make Newport like C.D.M. that rolls up the sidewalks at 8:30. Siucer , Don Christy Jr. ItEC:ENED lax .PLANN1NC; DRPAIITMP - "t" MAY I q zol PETER B ROTHSCHILD 70 LINDA ISLE, NEWPORT BEACH, CA. 92660 May 19, 2011 City of Newport Beach Planning Commission 3300 Newport Boulevard Newport Beach, Ca. 92663 -3816 Planning Commissioners: RECEIVED BY PLANNING DEPARTMENT MAY 2-,4 2011 CITY OF NEWPORT BEACH I understand that the restaurant "3 thirty 3" is requesting a permit to extend their hours of operation on their new patio. I eat there often as my home is on Linda Isle. It would be better for us if the patio was able to serve meals past 9pm as we often eat dinner after 8:30pm. The patio is fully enclosed and is quiet when I have been there. I know a lot of people that would like to be able to eat on the patio past 9pm. I think you should allow them to serve after 9pm. Thanks Peter Rothschild 100 May 19, 2011 Re: Planning Commission Agenda Item No. 0-2 for May 19, 2011 To Whom it May Concern, I reside at 104 Linda Isle and have lived here nearly 20 years. I have been in poor health for some time and have just come home from the hospital, otherwise I would be attending tonight's meeting. I would like to go on record for being highly opposed to the proposed extended horns of operation for the outdoor dining deck at 3Tbirty3 restaurant. The noise with the existing hours is sometimes intolerable, so the extension to 1:00 AM is totally unacceptable. Thank you. Sincerely, Alvin Dubrow IMCHNIRB by TLAR1i MI MPARTMENT 1. MAY Y®2011 CITY OF NEWPORT BEACH 101 102 City Council Attachment F Planning Commission Resolution No. 1843 10 104 RESOLUTION NO. 1843 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH DENYING CONDITIONAL USE PERMIT NO. UP2011 -007 FOR AN EATING AND DRINKING ESTABLISHMENT LOCATED AT 333 BAYSIDE DRIVE (PA2011 -041) THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS FOLLOWS: SECTION 1. STATEMENT OF FACTS. 1. An application was filed by Jeff Reuter, with respect to the property located at 333 Bayside Drive, and legally described as Lot B of Parcel Map Book 16 Page 10 (Resubdivision No. 249), requesting approval of a new conditional use permit. 2. The applicant filed an application requesting a new conditional use permit to extend the hours of operation granted by Accessory Outdoor Dining Permit No. 2007 -001 for an existing outdoor dining patio from 9:00 a.m. to 9:30 p.m. daily to 9:00 a.m. to 1:00 a.m. daily. No other changes to the existing restaurant operations were requested or proposed. 3. The subject property is located within the Commercial Recreational and Marine (CM) Zoning District and the General Plan Land Use Element category is Recreational and Marine Commercial (CM). 4. The subject property is located within the coastal zone. The Coastal Land Use Plan category is Recreational and Marine Commercial (CM -A). 5. A public hearing was held on May 19, 2011, in the City Hall Council Chambers, 3300 Newport Boulevard, Newport Beach, California. A notice of time, place and purpose of the meeting was given in accordance with the Newport Beach Municipal Code (NBMC). Evidence, both written and oral, was presented to, and considered by, the Planning Commission at this meeting. SECTION 2. FINDINGS. In accordance with Section 20.52.020 F of the Zoning Code, eating and drinking establishments classified as "Food Service, Late Hours" located within the Commercial Recreational and Marine (CM) Zoning District require the approval of a conditional use permit. The Planning Commission may approve a conditional use permit only after making each of the five required findings set forth in Section 20.52.020.F. In this case, the Planning Commission was unable to make the required findings based upon the following: 1. Residents of Linda Isle testified that noise emanating from the operation of the existing restaurant that is permitted to operate until 2:00 a.m., including the existing outdoor dining patio that is required to close at 9:30 p.m., presently disturbs some residents who reside on Linda Isle. The nuisance noise is associated with the operating the restaurant, outdoor patio, and includes activity within the surrounding parking lot and 105 Planning Commission Resolution No. 1843 Page 2 of 2 patrons using the, guest docks that are located within the waterway between the project site and Linda Isle. 2. Five single family homes are located within approximately 325 feet of the project site on Linda Isle and when arnbient noise lowers as the evening progresses, nuisance noise associated with the restaurant and the operation of the adjacent restaurant (Sol Cocina) can disturb residents of Linda Isle. 3. Extending the hours of use of the outdoor dining patio until 1:00 a.m. will increase activity within the patio and on the project site and potentially on the guest docks located in the intervening water way. Additional nuisance noise associated with the increased activity will disturb residents of Linda Isle and would not be compatible with the quite enjoyment of their residential property during the late evening and early morning hours. SECTION 3. DECISION. NOW, THEREFORE, BE IT RESOLVED: 1. The Planning Commission of the City of Newport Beach hereby denies Conditional Use Permit No. UP2011 -007. 2. This action shall become final and effective fourteen days after the adoption of this Resolution unless within such time an appeal is filed with the City Clerk in accordance with the provisions of Title 20 Planning and Zoning, of the Newport Beach Municipal Code. PASSED, APPROVED AND ADOPTED THIS 19th DAY OF MAY, 2011. AYES: Ameri, Hawkins, McDaniel, Toerge, and Unsworth NOES: None. ABSTAIN: Eaton and Hillgren ABSENT: None. BY: Earl Daniel, Chairman BY: ,-Mie e "T erg ecretary Tmplt: 03/08111 100 City council Attachment G Letter of Appeal filed by Councilmember Selich 107 102 Brown, Janet From: Campbell, James Sent: Wednesday, May 25, 2011 11:15 AM To: Brown, Janet Cc: Brandt, Kim Subject: FW: Appeal on 3- Thirty -3 Waterfront Restaurant Application (PA2011 -041) Attachments: Outdoor Dining Permit No 49 - Amended 1999 Condition #3 Highlighted.pdf From: Brown, Leilani Sent: Wednesday, May 25, 20119:54 AM To: Brandt, Kim; Campbell, James Subject: FW: Appeal on 3- Thirty -3 Waterfront Restaurant Application (PA2011 -041) Selich has officially appealed the 3- Thirty -3 Waterfront Restaurant item. Leilani I. Brown, MMC City Clerk City of Newport Beach 3300 Newport Blvd. I Newport Beach ( CA ( 92663 T (949) 644 -30051 F (949) 644 -3039 1 Ibrown(a newportbeachca j Serving the Public with Integrity and Professionalism Think of trees before you print please. From: Edward Selich rmailto :edselichCalroadrunner.comj Sent: Wednesday, May 25, 20119:11 AM To: Brown, Leilani Cc: Smith, Dana; Kiff, Dave; Henn, Michael Subject: Appeal on 3- Thirty-3 Waterfront Restaurant Application (PA2011 -041) Leilani: I am calling up for review by the City Council the above referenced application, 3- Thirty -3 Waterfront Restaurant (PA2011 -041), 333 Bayside Drive, denied by the Planning Commission on May 19, 2011. The basis for the appeal is inconsistency with the approval of Outdoor Dining Permit 49 for Mama Gina's (now Sol) approved on November 18, 1999 which allows outdoor dining until Midnight. Both 3- Thirty -3 Waterfront and Mama Gina's (now Sol) are approximately 250' from the nearest residences. Also, it appears the Planning Commission failed to adequately consider the recently approved ordinance for the Operators Permit which will allow an even higher level of control over the operation than Outdoor Dining Permit 49 presently has. Attached are the Planning Commission minutes of Outdoor Dining Permit #49 with Condition #3 setting the hours of the outdoor dining patio highlighted. Edward Selich CONFIDENrT'IAL 1 o9 Edward Selich This e -mail is sent by Edward Selich and contains information that is privileged or confidential. Please do not copy or forward this email or attachments. If you are not the intended recipient, please delete the e -mail and any attachments without reading, printing, copying or forwarding it, and please notify the sender. 170 City of Newport Beach Planning Commission Minutes November 18, 1999 .WiTO 13. This Use Permit shall expire unless exercised within 24 months from the date of approval as specified in Section 20.91.0590A of the Newport Beach Municipal Code. x•s SUBJECT: Ristorante Mamma Gina's Item No. 3 (Piero Pierattoni, applicant) Accessory Outdoor 251 East Coast Highway Dining Permit No. 49A Accessory Outdoor Dining Permit No. 49 (Amended) A request to increase the closing hour of the existing outdoor dining use. The hours as approved by the Planning Commission are 11:00 a.m. to 10:00 p.m., daily. The applicant requests to change the closing hour to Midnight, daily. Ms. Temple noted that this item came to the Planning Commission, after approval by staff, upon referral by City Council. At that hearing, considerable concern was expressed by the Commission regarding the potential noise from the proposed patio to disturb persons living in the Linda Isle Community. As a result, the Commission altered staff's original conditions to require the closing of the outdoor patio at 10:00 PM. The applicant is now requesting to expand the hours of operation on the patio to midnight daily. Ms. Temple noted there are physical features of the outdoor patio that make such a change non - impacting to the community. However, staff is still concerned about the proposal. The hour of 10 PM is a time frame when the ambient noise tends to decrease. At the same time, people tend to become more sensitive to the sounds in the environment. Should this application be approved by the Planning Commission, a time frame could be set within which this permit can be brought back for furtherreview by the Planning Commission. At Commission inquiry, Ms. Temple noted that two uses came back for review by the Planning Commission based on a timed review schedule. A standard condition that the Planning Commission can call. this matter up is included in the findings and conditions. Public comment was opened. Mr. Piero Pierattoni, applicant, at Commission Inquiry noted the following; • This is a classic, romantic setting on the bay. • Patio is a big draw. • Hard to bring people back in early at night, especially during the summer. • Proved over the past year, that they have caused no problem with residents. Ms. Temple noted that there have been no complaints during the past year 14 27-1- City of Newport Beach Planning Commission Minutes November 18, 1999 to either the Police Department or Planning Department. Public comment was closed. Commissioner Gifford noted that this is an example of what the Planning Commission is attempting to achieve. Having operators who commit to the findings and conditions that are imposed in an effort to have nice entertainment facilities co -exist with the City's mixed business and residential areas. We should show our appreciation of his compliance with those conditions by approving this and only calling it up if we do receive complaints. Motion was made by Commissioner Gifford for approval of Accessory Outdoor Dining Permit No. 49 A. Commissioner Kronziey, agreeing with previous testimony, noted that you could not hear any noise from this patio. They have proven to be a good operator and have done a good job. Ayes: Fuller, Ashley, Tucker, Selich, Gifford, Kranzley Noes: None Absent: None Abstain: None EXHIBIT "A" FINDINGS AND CONDITIONS OF APPROVAL FOR Accessory Outdoor Dining Permit No. 49 (Amended) FINDINGS: The Land Use Element of the General Plan and the Local Coastal Program designate the property for "Recreational and Marine Commercial" land use. The proposal is for a change in the hours of operation of an existing outdoor dining use that is accessory to an existing restaurant, a permitted use within that designation. 2. 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 t (Existing Facilities). 3. The approval of Outdoor Dining Permit No. 49 (Amended) will not, under the circumstances of the particular case, be detrimental to the health, safety, peace, comfort and general welfare of persons residing or working in the neighborhood or injurious to property or improvements in 15 INDEX 172 City of Newport Beach Planning Commission Minutes November 18, 1999 INDEX the area for the following reasons: • The proposed change in hours of the outdoor dining use is accessory to the existing restaurant use. • The extended hours of the outdoor dining area use, as conditioned, is compatible with the surrounding land uses because the required combination of the retractable awning and the required patio screening effectively prevent noise from adversely impacting the nearby residential uses. Additionally, no noise generating activities are allowed outside of the facility (i.e., entertainment): 4. The proposal is consistent with the legislative intent of Title 20 of the Newport Beach Municipal Code for the following reasons: • The use is accessory to and an extension of the existing restaurant use and not proposed to change by this approval. • The accessory outdoor dining area is not in a location, which would result in a reduction of existing parking spaces, and the change in hours does not physically alter the existing facility. • The use of the retractable awning is consistent with the restrictions on the use of solid roof structures and with the intent and purpose of the accessory outdoor dining to provide outdoor dining opportunities. CONDITIONS: 1. Development shall be in substantial conformance with the approved site plan, revised floor plan (as approved by the Planning Commission at its meeting of June 4, 1998) and elevations, except as noted in the following conditions. 2. All conditions of approval of Accessory Outdoor Dining Permit No. 49 shall remain in force, except as modified by this approval. 3. The hours of operation of the outdoor dining area are limited to 11:00 a.m. to Midnight, daily. Any increase in the hours of operation shall be subject to the approval of an amendment to this permit, an amendment to Use Permit No. 651 or the filing of a new use permit application. The patio shall be closed and not utilized during the non - specified operaiional hours after Midnight. The interior restaurant operation shall be governed by the hours specified in conjunction with the approval of Use Permit No. 651 and its amendments. 4. The retractable awning located over the outdoor dining area shall remain in the fully extended open position during the evening use of the patio dining area. The awning shall be maintained in a clean and orderly and fully functional operation for the duration of the outdoor dining use. 16 City of Newport Beach Planning Commission Minutes November 18, 1999 INDEX 5. The noise generated by the outdoor dining activity shall comply will the provisions of Chapter 10.26 of the Newport Beach Municipal Code That is, the sound shall be limited to no more than depicted below to the specified time periods: Between the hours of Between the hours of 7:00 a.m. & 10:00 p.m. I0:00p.m. & 7:00 a.m. interior exterior interior exterior Measured at the property line of commercially zoned property: NIA 65 dBA N/A 60 dBA Measured at the property line of residentially zoned property: N/A 60 dBA N/A 50 dBA Residential property: 45 dBA 55 dBA 40 dBA 50 dBA 6. The applicant shall retain a qualified engineer, selection approved by the Planning Director, specializing in noise /acoustics to monitor the sound generated by the outdoor dining activity to insure compliance with these conditions, if required by the Planning Director. 7. The proprietor shall continue to actively control any noise generated by the patrons of the facility. 8. The Planning Department shall review the outdoor dining use within sixty days after implementation of the extended hours of operation to determine the effectiveness of the conditions of approval to prevent noise problems. 9. The Planning Director or the Planning Commission may add to or modify conditions of approval to this outdoor dining permit, upon a finding of failure to comply with conditions set forth in Chapter 20.82 of the Municipal Code or other applicable conditions and regulations governing this approval. The Planning Director may also revoke this permit upon a determination that the operation which is the subject of this approval, causes Injury, or Is detrimental to the health, safety, peace, morals, comfort and general welfare of persons residing or working in the neighborhood or injurious to property or improvements in the area. lo. This approval shall expire unless exercised within 24 months from the end of the appeal period as specified in Section 20.91.050 of the Newport Beach Municipal Code. 4kk 17 174 City of Newport Beach Planning Commission Minutes June 4,1998 INDEX SUBJECT: RlstoranteMamma Gina's Item No. t (Piero PleraHonl, applicant) Accessory Outdoor 251 East Coast Highway Dining Permit No. 49 Planning Commission review, on the call up and referral of the City Approved Council, of the decision of the Planning Director which approved the addition of an accessory outdoor dining area in conjunction with an existing full- service restaurant. The outdoor dining area overlooks the bay directiyacross from residential uses on Linda Isle. Staff noted no additional comments. Public Comment was opened, Jerry King, JA King and Associates representing the applicant, stated that they understand and agree to the findings and conditions of the Accessory Outdoor Dining Permit as contained in Exhibit A. This application is to add accessory outdoor dining to the establishment as permitted under the Municipal Code, in answer to staff and public expressed concerns, the applicant has added conditions to install a glass wall of 7'6" high, the doorway will be changed to add a vestibule on the interior side which will protect and prevent noise from carrying to the outside as well as the closure of the restaurant one hour earlier than most of the neighboring businesses. At commission inquiry, he noted that the vestibule doors are self closing each way and the glass partition Is 7'6" high and is comprised of a short wall with the full extension of glass on top. He agreed with the a modification to condition 13 stating that at no time will the doors be propped open. Piero Pierattoni, applicant stated that he has been at this location for the past few years and has been a good restaurateur. He wants to be in compliance, adding that there will be no broadcast or piped music, no lighting and no noise will carry outside. The glass will be the some height as the existing roof line. There should be no complications as for as noise is concerned. Commissioner Adams noted condition 141n the butdoordining permit that was'originally approved;.... should problems arise with regard to noise associated with the outdoor dining areas, ...some or all of a portion of the outdoor dining area seating In the areas which contribute to the noise problems or complaints will be shutdown ....... Mr. Pierattoni said he is aware of this condition and has no problem with it. At question by Commission, he stated that he would like to use the patio during the lunch time and that the awning type window is necessary for air circulation and to help keep the windows clean. He explained that part of the window will be permanent and part will slide (for cleaning 2 1715 City of Newport Beach Planning Commission Minutes June 4, 1998 purposes). In response to Commission concern regarding the value of attenuating noise with sliding windows, Ms. Temple stated that an acoustical engineer could be hired by the applicant to address these concerns. Darwin Britvich, general contractorfor the applicant noted: • Glass to be used Is tempered y," thick. • Glass that will slide, will have a locking device and will be locked at all times except during the cleaning process. • Awnings at the base are for daylight use only because the patio will be extremely hot during the day. • The bottom portion of the window is a single pane of glass that comes out for air to pass through Referencing the exhibit on the wall, Mr. Brtivich explained the placement and movement of the windows on the patio area. Doug Liechiy, 93 Linda Isle spoke in opposition to this application of outdoor use based on: • historical use problems • music and noise I • glass acts like an amplifier Peggy Long, 97 Linda Isle, President of Linda Isle Community Association spoke in opposition for similar reasons staled above. She spoke for two neighbors who live at 104 and 105 Linda Isle directly across from the restaurant and are the most impacted. Noise carries over the water and they are appealing to Planning Commission for help. She then noted the hours and asked for closure at 10:00 p.m. for outdoor dining if Commission allows this application. She has called the Police Department to address noise problems in the past, to which they have responded and dealt with the matter. Commissioner Adams asked Mr. Liechiy If there had been any problems with the current owner to which he answered, no, not with the present configuration. Commissioner Ashley asked the speaker if he had read the conditions represented In Exhibit A regarding noise and was answered yes and agreed that they would address any concerns with the noise, but that their objections are based on past historical problems and on the premise that these conditions have applied to other restaurants in the area but they continue to be problematic. Commissioner Sellch asked staff about the Issue of the bayfroni restaurant regulationsof the Economic Development Committee and Environmental INDEX 170 City of Newport Beach Planning Commission Minutes June 4, 1998 Quality Affars Committee. Both of these committees have met and endorse a set of recommendations being forwarded to City Council and asked if there is any Inconsistency in the conditions of the current project with the proposed recommendations. Mrs. Wood answered that those recommendations to be heard on June 81h include: for any new restaurant development or for an expansion or intensification of an existing restaurant that an acoustical study would be required taking Into consideration the specific operations that are proposed as well as the topographical and atmospheric conditions of the location. Recommendatlonswould be Included as to how that restaurant could meet the noise standards In the Code. She concluded stating that Commission could specify in condition 4 that the glass be designed by an acoustical engineer. -Jean Liechiy, 93 Linda isle spoke In opposition to this application for reasons similiar to previous testimony. At Commission inquiry, Ms. Temple noted that the distance across the channel from the restaurant to the houses is approximately250 feet. Mr. Jerry King speaking to the Commission, noted the concerns expressed by the previous speakers and Commission, The concerns of the noise of the previous tenants is valid, but the City now has a noise ordinance. The removable windows have handles that can be locked and /or removed. Management can control the use of the windows and can be dealt with. The onus is put on the operator, if problems arise Commission can call back this item for review. Additionally, this business Is in a heavily trafficked area, on the marina with boat traffic noise and background traffic noise of the highway. Public comment was closed, Commissioner Adams noted that the proposal might be problematic as voiced by the speakers. Commission needs to give development a chance. The City has mechanisms in place to address and enforce problems. This is an unusual outdoor dining permit duo to the proximity to residences and being on the water. The owner is aware of the gamble he Is taking. There are adequate measures in place, the residents need to take action and call the City. The hours of operation need to be 10:00 p.m, every day of the week and not subject the residents to additional noise possible emanating from the outdoor dining. Houses on the water, have to endure the noises and activity that take place, i.e., boating, lack of privacy. Concluding, Commission needs to give the applicant the opportunityto try. Commissioner Fuller, supporting the 10:00 p.m. closure, asked that an INDEX -L� City of Newport Beach Planning Commission Minutes June 4, 1998 acoustical study be done by the applicant to the satisfaction of staff, This would allow foreknowledge of problems. Commissioner Gifford opinioned that while there have been no problems with the operation so for and that the commitment of the operator is commendable, the concern is that the restaurant can change hands. There needs to be fixed glass at this location. The lower portion of glass used for ventilation, confirms that it will be opened. Professional window washers could take care of the cleaning without problems. There is no need for an acoustical study, If we have all of these conditions, i.e., fixed glass and 10 :00 p.m. closure. If In spite of all of this, Condition 1) would come into play to address complaints. CommissionSelich agreeing with the conditions outlined in the staff report and the enforcement power, commented that Council referred these bayfront restaurant regulations to the EQAC and EDC, Looking at the recommendations, they center on enforcement of existing regulations. Commissioner Ashley noting the safeguards in the staff report as being very strong and useful, supports this application. Chairperson Kranzley noted that the live entertainment in this restaurant is legal and non-confirming asked if Section 5,28 would apply, to which he was answered, yes. He noted that rules run with the land, and, it Is up to the residents who are Impacted to call the City and notify them of problems that come up. The Noise Ordinance is in place to assure some semblance of peace and quiet to surrounding residences. Supporting the shorterhours and fixed windows he stated his support of the application. Ms. Clauson noted that in addition to the Noise Ordinance, there is also an Administrative Citation Ordinance which helps the community and the applicant. Violationsof any of the conditions are cited. The citation fine is $100,$200 and $500 and goes up If the problems are not corrected, Motion was made by Commissioner Ridgeway for approval of Accessory Outdoor Dining Permit No. 49 subject to the findings and conditions in Exhibit A with the following modification: • Condition 4: delete words.... or Plexiglas type material,.,,,... • Condition 4, the outdoor dining area be provided with a rninimum 7'6" wall or partition. • The UBC governs what will be constructed. • ' No change in hours. • No acoustical engineers. • No change in fixed window aspect - condition 13 addresses any problems that may occur Commissioner Adams asked if the maker of the motion would add the INDEX 172 City of Newport Beach Planning Commission Minutes June 4,1998 change he suggested regarding the vestibule doors not being propped open, to which he was answered, yes. Substitute Motion was made by Commissioner Adams for approval of Accessory Outdoor Dining Permit No. 49 subject to the findings and conditionsin Exhibit A with the following modifications: • Condition* delete words .... orPlexiglas type material ........ • Condition 13 to add, ...:vestibule doors not to be propped open at any time'.... • Closing hours at 10:00 p. m. throughout the entire week. • Condition 4 the outdoor dining area be provided with a minimum 7'6" wall or partition. Substitute Motion was voted on and approved: Ayes: Fuller, Kranzley, Adams, Ashley Noes: Rldgeway,Selich Absent: None FINDINGS: I. That the Land Use Element of the General Plan and the Local Coastal Program designate the property for "Recreational and Marine Commercial" land use. The proposed outdoor dining is accessory to an existing restaurant, a permitted use within that designation. 2. That 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 i (Existing Facilities). 3. That the approval of Outdoor Dining Permit No. 49 will not, under the circumstances of the particular case, be detrimental to the health, safety, peace, comfort and general welfare of persons residing or working In the neighborhood or injurious to property or Improvements in the area: • The use is accessory to the existing restaurant use and subject to all the findings and conditions of approval of Use Permit No. 651 and any amendments, except as limited by this approval, and Is not an independent use, • The proposed outdoor dining area, as conditioned, is compatible with the surrounding land uses because the limited hours and required patio screening should prevent noise from adversely impacting the nearby residential uses and the proposal does not include any noise generating activities outside of the facility (i.e., INDEX City of Newport Beach Planning Commission Minutes June 4, 1998 entertainment). 4. That the proposal is consistent with the legislative intent of Title 20 of the Newport Beach Municipal Code for the following reasons: • The use is accessory to and an extension of the existing restaurant use. • The proposed accessory outdoor dining expansion will not be located to result in a reduction of existing parking spaces. • The restrictions on the use of solid roof structures as applied to this approval are consistent with the Intent and purpose of the accessory outdoor dining to provide outdoor dining opportunities. CONDITIONS: 1. Thal development shall be In substantial conformance with the approved site plan, revised floor plan (which Includes the addition of a vestibule and elimination of the easterly exit door from the bar /lounge out to the outdoor dining area) and elevations, except as noted in the following conditions. t 2. That the accessory outdoor dining shall be used in conjunction with the related adjacent food establishment and shall be limited to 325 sq.ft. maximum (gross area) as proposed, unless an amendment to this application is first approved or a use permit is obtained from the Planning Commission, if necessary. 3. That the seating and dining in the outdoor area shall be limited to dining table height (approximately 30 Inches) and the use of elevated counters and barstools shall be prohibited. 4. That the outdoor dining area be provided with a 7'6" wall or partition which shall extend flush with the floor of the deck and the underside of the existing roof at the westerly end of the deck. That portion of the partition or wall which is not located under the existing roof, shall maintain a minimum height to match the underside of the adjacent roof and shall extend along the full length of the westerly and southerly (overlooking the flay) sides of the outdoor dining area. If constructed of glass or Plexiglas -type 'material, the partition shall be of solid construction, except that operable awning type windows shall be allowed. The windows shall be closed after 7:00 p.m., except during daylight savings time (generally between the months of April and October) when the windows shall be allowed to be open until 8:00 p.m. The final window design and tamper -proof locking mechanism shall be subject to the approval of Planning Director and shall be INDEX 120 City of Newport Beach Planning Commission Minutes June Q, 1998 good working order. 5. That the hours of operation of the outdoor dining area are limited to 11:00 a.m. to 10:00 p.m. Sunday through Thursday, and 11:00 a.m. to 44,00 10:00 p.m. Friday and Saturday. Any increase in the hours of operation shall be subject to the approval of an amendment to this permit, an amendment to Use Permit No. 651 or the filing of a new use permit application. The polio shall be closed and not utilized during the non - specified operational hours after 10:00 p.m. The interior restaurant operation shall be governed by the hours specified in conjunction with the approval of Use Permit No. 651 and its amendments. 6. That light sources within the outdoor dining area shall be designed or altered to eliminate light and glare spillage onto adjacent properties or uses. That prior to issuance of a certificate of occupancy, the applicant shall demonstrate to the Planning Department that the exterior lighting system has been designed and directed in such a manner as to conceal the light source . and to minimize light spillage and glare to the adjacent properties. Prior to issuance of any building permit, the applicant shall provide to 1- the Planning Department, in conjunction with the lighting system plan, light fixture product types and technical specifications, including photometric information to determine the extent of light spillage or glare which can be anticipated. This information shall be made a part of the bvliding set of plans for Issuance of the building permit. Prior to Issuance of the certificateof occupancyor final of building permits, the applicant shall schedule an evening inspection by the Code Enforcement Division to confirm control of light and glare specified by this condition of approval. That alcoholic beverage service shall be prohibited In the outdoor dining areas, until the approvals of the Police Department and the State Departmentof Alcoholic Beverage Control are first obtained. Any substantial physical changes required (as determined by the Planning Department) to accommodate alcoholic beverage service shall be subject to the approval of an amendment to this Outdoor Dining Permit. 8. That the area outside of the food establishment, including the public sidewalks and the Bay, shall be maintained in a clean and orderly manner; and may be subject to providing periodic sfeam cleaning of the public sidewalks as required by the Public Works Department. That all applicable conditions of approval of Use Permit No. 621 and 651 and subsequent amendments shall remain in force. Use 10310 121 City of Newport Beach Planning Commission Minutes June 4, 1998 Permit No. 651 approved the introduction of alcoholic beverage service within the existing restaurant only. 10. That the noise generated by the outdoor dining activity shall comply with the provisions of Chapter 10.26 of the Newport Beach Municipal Code. That is, the sound shall be limited to no more than depicted below for the specified time periods: Between the hours of Between the hours of 7:00 a.m, and 10:00 p.m. 10:00 o.m. and 7:00 a.m. into erior exterior Interior exterior Measured at the property line of commercially zoned property: N/A 65 dBA N/A 60 dBA Measured at the property line of residentially zoned property: N/A 60 dBA N/A 50 dBA j Residential property: 45 dBA 55 cIBA 40 dBA 50 dBA 11. That the applicant shall retain a qualified engineer, selection approved by the Planning Director, specializing in noise /acoustics to monitor the sound generated by the outdoor dining activity to Insure compliance with these conditions, if required by the Planning Director. 12. That no amplified music or entertainment is permitted in the outdoor dining area. That no outside paging system, loudspeaker or other noise generating device shall be utilized In conjunction with this outdoor dining area. 13. That all doors and windows leading to the outdoor dining area and the vestibule shall remain closed while any approved Indoor amplified music /sound or live entertainment is being performed. That the easterly exit door leading out to the outdoor dining area shall be eliminated. Additionally, an exit vestibule adjacent to the westerly access door leading out to the outdoor dining area shall be provided as shown on the revised floor plan. 14. That should problems arise with regard to noise assoctatedwith the outdoor dining areas, the Planning Department shall require the INDEX 122 City of Newport Beach Planning Commission Minutes June 4,1998 removal of all or a portion of the outdoordining area seating In the areas which contribute to the noise problems or complaints. 15. That the proprietor shall actively control any noise generated by the patrons of the facility. 16. That the operator of the food service use shall be responsible for the clean -up of all on -site and off -site trash, garbage and litter generated by the use. 17. That trash receptacles for patrons shall be conveniently located outside of the related food service facility to serve the accessory outdoor dining area or the area shall be actively bused to minimize the potential for trash to fall into the Bay or elsewhere on the subject properly. 18. That roof coverings shall not have the effect of creating a, permanent enclosure. The use of umbrellas for shade purposes shall be permitted. The use of any other type of overhead covering shall be subject to review and approval by the Planning Director and may require an amendment to this permit, an amendment to Use Permit No. 621, 651 or the filing of a new use permit application 19. That this approval shall be subject to review by the Planning Department after the second week in July 1998 to determine compliancewith the conditions of approval and to determine the effectiveness of the conditions of approval to prevent noise problems. However, if the outdoor dining area has not been implemented and operational for at least 60 days prior to July 15, 1998, the Planning Department shall review the use a minimum of sixty days after implementation. 20. That the Planning Director may add to or modify conditions of approval to this outdoor dining permit, upon a finding of failure to comply with conditions set forth in Chapter 20.82 of the Municipal Code or other applicable conditions and regulations governing this approval. The Planning Director may also revoke this permit upon a determination that the operation which is the subject of this approval causes injury, or is detrimental to the health, safety, peace, morals, comfort and general welfare of persons residing or working in the neighborhood or Injurious to property or improvements In the area. 21. That this approval shall expire unless exercised within 24 months from the end of the appeal period as specified in Section 20.91.050 of the Newport Beach Municipal Code. 10 INDEX l es