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HomeMy WebLinkAbout14 - Woody's Wharf Use Permit Amendment located at 2318 Newport Boulevard (PA2015-158) - Correspondence Received After Agenda Printed September 22, 2015 Item No. 14 From: Harp,Aaron Sent: Monday, September 21, 2015 8:41 AM Cc: Torres, Michael; Brown, Leilani; Kiff, Dave; Brandt, Kim Subject: FW:Woody's Attachments: 20150921063134662.pdf Importance: High Good Moming Honorable Mayor and Council Members, Attached is an additional submittal by Gary McKitterick related to Woody's Wharf. -----Original Message----- From: McKitterick, Gary Sent: Monday, September 21, 2015 7:16 AM To: Aaron C. Harp Esq. (aharp@newportbeachca.gov) <aharp@Aewportbeachca.eov>; 'Dixon, Diane' <ddixon@newportbeachca.gov>; anthonv.petros(a),lsa-assoc.com Cc: McKitterick, Gary<gmckitterick@allenmatkins.com>; Mills Consulting<steve@,millsconsulting.net>; Saulus, Mary<msaulus(a,allenmatkins.com> Subject: Woody's Importance: High The staff report has many material flaws that are factual. Example is the attached page as well as the noise study that is attached from almost 3 years ago. Look at attachment 5 and 8. The City NEVER studied the most impacted property which happens to be owned by my client. The errors are material. My client has residential balconies within close proximity to the PL with Woody's. Look at the plans for Building H , two units with master bedrooms facing the Bay close to the PL. I provided the drawings to you back in April. Look at the noise study that is almost 3 years old. Look at the test areas. They never reviewed the potential impacts to Newport Bay marina. We have an expert sound study which will show significant noise violations for Noise Zone I1I. The City Code is very helpful to define the standard and the obligation for compliance to conform to the Noise ordinance. Gary S. McKitterick Esq. Partner Allen Matkins Leck Gamble Mallory&Natsis LLP 1900 Main Street, 5th Floor, Irvine, CA 92614-7321 (949) 553-1313 (main) (949) 851-5432 (direct) (949) 751-8270 (mobile) (949) 553-8354 (fax) Confidentiality Notice: The information contained in this electronic e-mail and any accompanying attachment(s) is intended only for the use of the intended recipient and may be confidential and/or privileged. If 1 any reader of this communication is not the intended recipient, unauthorized use, disclosure or copying is strictly prohibited, and may be unlawful. If you have received this communication in error, please immediately notify the sender by return e-mail, and delete the original message and all copies from your system. Thank you. z 5'8/2015 Cwersheet '.. Operwor License from the Police Department. The Operator License is a tool that the Police Department can utilize to enforce the conditions of approval of the use permit. Pursuant to Section 20.48.090 of the Zoning Code, the City Council must consider the following potential impacts upon adjacent or nearby uses when reviewing an application to allow late-hour operations and outdoor dining: 1. Noise from music, dancing, and voices associated with allowed outdoor uses and activities; 2. Nigh levels of lighting and illumination; 3. Increased pedestrian and vehicular traffic activity during late and early morning hours; 4. Increased trash and recycling collection activities; 5. Occupancy loads of the use; and 6. Any other factors that may affect adjacent or nearby uses. Extending the hours of the outdoor dining area from 11:00 p.m, to 2:00 a.m. to include Thursday nights (and 12 other nights per year), could slightly increase traffic after 11:00 p.m. (current required closing hour). However, the location of the valet parking pick-up and drop-off area is shielded from the residences by the restaurant building, thereby mitigating noise impacts from this activity to residential uses across and along the Rhine Channel. The proposed use will not necessitate high levels of lighting or illumination and any outdoor lighting must conform to Zoning Code Section 20.30.070 (Outdoor Lighting). A temporary increase in traffic during late and early morning hours on weekends is expected along Newport Boulevard; however, this portion of roadway is not a major residential road, so disturbances to residents related to traffic are not expected to occur. Directly adjacent to the site is a new mixed use development, Newpo a Marina, which is presently under construction and includes residential units located approximately 1 eet o e so Restricting live entertainment to the interior, ceasing sound amplification at 10:00 p.m. on the out oor dining area and requiring that doors and windows be closed during live entertainment will help reduce noise impacts on the surrounding neighborhood. Parking The current parking requirement for Woody's Wharf is 40 parking spaces which are currently provided by 26 on-site spaces, the payment for 10 in lieu parking spaces, and the credit of 4 spaces for the boat docks. Six of the on-site spaces are tandem spaces approved with valet parking plan. The current approval allows the .operator to utilize the valet parking service on an as-needed basis (to satisfy peak demand, special events, and holidays) and when dancing and/or live entertainment occurs. The Public Works Department has no objection to the valet parking plan as previously approved and depicted on the plans submitted. No changes to the parking requirement or management as approved by the Planning Commission are requested or recommended. Modified Conditions of Approval Several conditions of approval require modification to reflect the requested change in hours of operation, use of the main outdoor patio dining area, and the introduction of additional days for dancing, as well as clarifying language of the intent of several conditions. Please see the underlined/strike-out version of the proposed condition changes in Attachment CC 2. Other proposed modifications are as follows: • Condition No. 5:The proposed modification states the Operator License will be subject to the same conditions of approval as the use permit. Staff supports this modification given the extensive number of conditions of approval that address late-hour operations. • Conditions No. 6 and 50: The proposed modifications state the closing hour of the kitchen is at the discretion of the applicant/operator and "happy hour" shall be allowed in conjunction with food service. Staff supports these modifications given that Condition No. 52 requires the applicant to comply with State requirements for a Type 47 Alcoholic Beverage Control (ABC) license and that the service of food is the principal use of the facility. • Condition No. 18. The proposed modification revises the language to state that the CUP runs with the hitp://nwus gendapubllc.nmpQrUb achca.gov/CoverSheet.aspx?ltemID=7628&Me UngiD=699 5f8 Received After Agenda Printed September 22, 2015 Item No. 14 From: K Stoddard <kstoddard112@gmail.com> Sent: Friday, September 18, 2015 12:40 PM To: Dept - City Council; Brown, Leilani Subject: Woody's Wharf's Use Permit Amendment Newport Beach City Council Members, We owners of the thirty-five residential units of the 28th Street Marina remain opposed to any expansion of Woody's nightclub operation. A nightclub in a mixed use area is an inappropriate land use and it violates the General Plan. Woody's now wants dancing and the use of its outdoor dining area until 2 AM on Thursday nights in addition to the Friday and Saturday nights that it already has. Woody's also wants dancing and the use of its outdoor dining area until 2 AM on twelve additional, non-specified, nights throughout the year. This is simply a move by Woody's to increase its usable floor space by 62%, on 64 additional nights per year, so it can serve more alcohol to more people. It is as simple as that. Food service stops at approximately 10 PM and the outdoor dining area becomes a non-permitted outdoor drinking area. (Phone calls to Woody's have confirmed that food service stops at approximately 10 PM nightly.) Regarding the twelve additional non-specified nights per year, the way this is proposed is a nightmare and will be unenforceable. The intent is for Woody's to notify the Planning Department in writing 24 hours prior to any additional night they intend to have dancing and the use of the outdoor drinking area until 2 AM. The Planning Department cannot deny it because Woody's does not have to seek approval. Woody's determines the nights. The Planning Department then notifies the Police Department and Code Enforcement. The City must then track these nights to ensure that Woody's does not exceed twelve in a year. Even if Woody's provides the full 24 hours of required notice, the likelihood that this information will filter its way down through various city departments and reach the police officers working the night shift, all within 24 hours, is unlikely. It is highly probable that the police officers will not receive the information. It is also probable that Woody's will, on occasion, "forget"to provide the 24 hours notice at all and will simply tell the arriving officers on an unscheduled night that it is one of the twelve allowed nights and that they forgot to notify Planning. Every night Woody's "forgets" is a free night and not one of the twelve. Wood's is good at this game. The Police Department will see this additional twelve night condition as unenforceable and this will degenerate into Woody's being able to have dancing and the use of its outdoor drinking area until 2 AM any night it wants. This does not have to be complicated. Why not have Woody's specify in writing, now, what those twelve additional nights will be every year? This would require no tracking on the part of the City and everyone would know, up front and in advance, every year, what those nights are. The General Plan states that all mixed use areas will be "highly livable for the residents". How can anyone say that this amendment won't result in serving more alcohol to more people and thereby 1 increase the incidence of drunkenness, public urination, theft, assaults, etc. in an area that already has the highest crime rate and the highest concentration of ABC licenses in the City? How does this amendment benefit anyone other than Woody's itself? It doesn't. Have the Council Members ever personally visited the area around Woody's at 1 AM on a Friday or Saturday night to see what the area is really like? You would be shocked. We believe this use permit amendment is the direct product of the settlement agreement between Woody's and the City. The City sees that approving this amendment is a no cost resolution to the litigation. There may be no hard dollar cost but there is a soft dollar cost. The cost is guaranteed further degradation of the area and the cost will, once again, be born by the residents in lower property values and in a lower quality of life. Taking the easy way out of this litigation now will also result in more crime and a greater resource drain on the Police Department. If this amendment is approved, it will undoubtedly result in more calls to the Police Department for noise, fights and drunks at Woody's. How many additional drunk drivers will result from this amendment? More alcohol served to more people. How can anyone defend that and say it is good for the area? The area is virtually out of control now as it regards crime and alcohol consumption. Approving this amendment can only increase the crime and the number of problems we residents face on a daily basis. You are supposed to represent the residents and the businesses, not just the businesses. How can passing this use permit amendment not be counter to what the General Plans states? Your vote will either cause the area to degrade further or it will be one step toward area improvement. The responsibility is yours. Will you do the right thing and be part of the solution or take the easy path and allow the area to deteriorate further? Kent Stoddard 28th Street Marina z Received After Agenda Printed September 22, 2015 Item No. 14 From: Ramirez, Gregg Sent: Friday, September 18, 2015 2:47 PM To: City Clerk's Office; Brown, Leilani Cc: Brandt, Kim Subject: FW:Woody's Wharf Use Permit Amendment Please distribute. Thank you From: laithezzet@aol.com [ma!Ito:laithezzet(daol.com] Sent: Friday, September 18, 2015 2:43 PM To: Ramirez, Gregg Subject: Woody's Wharf Use Permit Amendment I have lived at the 28th Street Marina, near Woody's Wharf, for over 20 years and Woody's has been a constant nuisance during that time. For over 10 years I served on the HOA Board and complaints about Woody's noise was a constant problem from our residents. As a Board we met with representatives of Woody's to try to address the problems without success. Noise has been a habitual problem, both from the music being played and from the yelling of the voices in the crowd, particularly on the outdoor patio. Additionally, I have observed drunks from the establishment walk out of Woody's and into our parking garage and urinate in our parking garage. The noise from Woody's during the particularly loud summer months has forced me to leave town on many weekends to avoid a sleepless night in Newport next to Woody's. The police have been called late in the night to address noise complaints at Woody's numerous times over the years by our Association's residents. I can assure you that residents are hesitant tcall the police and that the number of calls is a tiny fraction of the number of sleepless nights that Woody's has caused. Please do not approve a further expansion of Woody's hours, it will only cause us further pain. I understand this matter is scheduled for consideration at a public hearing on September 22 and I request that this letter be shared with the City Council members. Laith Ezzet 28th Street Marina t Received After Agenda Printed September 22, 2015 Item No. 14 From: McKitterick, Gary <gmckitterick@allenmatkins.com> Sent: Saturday, September 19, 2015 8:09 AM To: Diane Dixon;anthony.petros@lsa-assoc.com Cc: McKitterick, Gary; Harp, Aaron Subject: Woody's Wharf Use Permit Amendment request No. UP2011-010 Importance: High Dear Diane and Tony, I will address the CC on Tuesday on behalf of my client who is adversely impacted by the late night noise and behavior of the immediately adjacent property.The expansion of operating intensity for a business who already is non-compliant with existing rules is not good governance by the City. There are standards that should be objectively applied to maintain a livable balance for the citizens of Newport Beach. Please note the staff report) does not accurately describe the mixed use project owned by my client. Residential units are in close proximity to Woody's. The report does not make a proper analysis of adverse impacts to our property.Ask the staff if they have conducted a noise and impact study? Remember in 2013 our property was a plan but'in 2015 we are under construction and the staff must evaluate the most impacted property.The staff has failed to evaluate the impacts to our property. I also addressed the CC in October 2013 and incorporate my prior comments into the record for this hearing. I would ask the City to please make that transcript available to incorporate the objections. There is no compelling public benefit in expanding the operating hours of an establishment who has a track record of violations of the existing permits and numerous Police reports.To expand any operating hours will be a voluntary action by the City that will cause direct adverse impacts to my client's property. As a process issue, I am aware of the lawsuit and settlement and its probable influence on City decision makers. We certainly expect all CC members who received political donations from the owners of Woody's to make proper public disclosure prior to any hearing and follow conflict of interest rules. I do not have the emails of the other CC members but I have copied Mr. Harp who can forward Gary S. McKitterick Esq. Partner Allen Matkins Leek Gamble Mallory&Natsis LLP 1900 Main Street, 5th Floor, Irvine, CA 92614-7321 (949) 553-1313 (main) (949) 851-5432 (direct) (949) 751-8270 (mobile) (949) 553-8354 (fax) Allen Matkin Confidentiality Notice: The information contained in this electronic e-mail and any accompanying attachment(s) is intended only for the use of the intended recipient and may be confidential and/or privileged. If any reader of this communication is not the intended recipient, unauthorized use, disclosure or copying is strictly prohibited, and may be unlawful. If you have received this communication in error, please immediately notify the sender by return e-mail, and delete the original message and all copies from your system. Thank you. z From: McKitterick, Gary <gmckitterick@allenmatkins.com> Sent: Sunday, September 20, 2015 10:37 AM To: Harp, Aaron Cc: Dixon, Diane; McKitterick, Gary Subject: FW:Woody's Wharf Use Permit Amendment request No. UP2011-010 Importance: High We should talk on Monday morning—our findings impact the proposed settlement. Our expert is the same firm I used for Hoag for the Villa Balboa review. We will have documented violations on 9/17,18 and 19 . Newport Beach --Code 10.12.070, 075,080 and 090 B 10.26.025 Exterior Noise Standards ......................................................................................................................................................................................................................................................................................... . A. The following noise standards, unless otherwise specifically indicated, shall apply to all property with a designated noise zone: ALLOWABLE EXTERIOR NOISE LEVEL (Equivalent Noise Level, NOISE Leq) ZONE TYPE OF LAND USE 7 a.m.to 10 p.m. 10 p.m.to 7 a.m. I Single-, two-or multiple-family residential 55 DBA 50 DBA II Commercial 65 DBA 60 DBA III Residential portions of mixed-use properties 60 DBA 50 DBA 10.26.070 Prima Facie Violation S HARE KI G: _ ....... .......................... ......................................................................................................................................................................................................................................................... Any noise exceeding the noise level standard as specified in Section 10.26.025 and 10.26.030 of this chapter, shall be deemed to be prima facie evidence of a violation of the provisions of this chapter. (Ord. 95-38 § 11 (part), 1995) 10.26.075 Violations. SHARE •.- .................................................I....I.........I....I.........I.................................................................................................................................................................................................. ........ Any persons violating any of the provisions of this chapter shall be deemed guilty of an infraction. (Ord. 95-38§ 11 (part), 1995) b. SHARE � ......... 10.26.080 Violations-Additional Remedies—injunctions................... .. .. . .. ....... .. .............................. t A. As an additional remedy, the operation or maintenance of any device, instrument, vehicle or machinery in violation of any provisions of this chapter which operation or maintenance causes or creates sound levels exceeding the allowable standards as specified in this chapter shall be deemed and is declared to be a public nuisance and may be subject to abatement summarily by a restraining order or injunction issued by a court of competent jurisdiction. B. Any violation of this chapter is declared to be a public nuisance and may be abated in accordance with law. The expense of this chapter is declared to be public nuisance and may be by resolution of the City Council declared to be a lien against the property on which such nuisance is maintained, and such lien shall be made a personal obligation of the property owner. (Ord. 95-38 § 11 (part), 1995) 10.26.090 Noise Abatement Programs. SHFIRE =; ..............................................---....--.............................................................................................................................................................................................................,................ A. In circumstances which adopted community-wide noise standards and policies prove impractical in controlling noise generated from a specific source, the City Council may establish a noise abatement program which recognizes the characteristics of the noise source and affected property and which incorporates specialized mitigation measures. B. Noise abatement programs shall set forth in detail the approved terms, conditions and requirements for achieving maximum compliance with noise standards and policies. Said terms, conditions and requirements may include, but shall not be limited to, limitations, restrictions, or prohibitions on operating hours, location of operations, and the types of equipment. (Ord. 95-38 § 11 (part), 1995) From: McKitterick, Gary Sent: Sunday, September 20, 2015 6:34 AM To:Tony Petros<Tony.Petros@Isa-assoc.com> Cc: Diane Dixon <ddixon@dianedixon2014.com>; anthony.petros@Isa-assoc.com; aharp@newportbeachca.gov; Steven Mills<smills@gcorlando.com>; 'Dixon, Diane' <ddixon@newportbeachca.gov>; McKitterick, Gary <gmckitterick@a llenmatkins.com> Subject: RE: Woody's Wharf Use Permit Amendment request No. UP2011-010 Tony and Diane, The City noise study was 12/21/12 and is flawed. It never measured my clients property for impacts.The staff report is void of any analysis on impacts to a multimillion dollar mixed use development.We have conducted a Noise study which we will submit and you should be aware the Woody's site, per Newport code has major code violations.The CC should be on notice that the existing condition of Woody's is causing adverse impacts on my clients investment..The staff report is flawed . We will present the materials Tuesday night but I am available for questions in advance for you or any of the CC members. Everyone should all be on notice of the staff error. Look at the package attachment 5 and 8 and see there was no analysis of noise and in attachment 8 our property is described as vacant commercial. We are a mixed use residential project. Gary S. McKitterick Esq. Partner 2 Allen Matkins Leck Gamble Mallory& Natsis LLP 1900 Main Street, 5th Floor, Irvine, CA 92614-7321 (949) 553-1313 (main) (949) 851-5432 (direct) (949) 751-8270 (mobile) (949) 553-8354 (fax) Allen Matkins From: McKitterick, Gary Sent: Saturday, September 19, 2015 4:59 PM To:Tony Petros<Tonv.Petros@Isa-assoc.com> Cc: Diane Dixon <ddixon@dianedixon2014.com>; anthonv.petros(@Isa-assoc.com; aharp@newportbeachca.gov; McKitterick, Gary<gmckitterick@allenmatkins.com>;Steven Mills<smills@gcorlando.com> Subject: Re: Woody's Wharf Use Permit Amendment request No. UP2011-010 Tony not sure what you mean? We have a huge investment that we purchased based on a set of assumptions including the use and compliance by Woody's with its existing use permit. It is important to know the staff report is flawed.They did not adequately evaluate the adjacent impacts. We will submit evidence of violations. If you need to have facts before closed session on the settlement let me know. Gary McKitterick gmckitterick@allenmatkins.com Work 949-851-5432 Cell 949-751-8270 On Sep 19, 2015, at 8:09 AM, McKitterick, Gary<gmckitterick(c@allenmatkins.com>wrote: Dear Diane and Tony, I will address the CC on Tuesday on behalf of my client who is adversely impacted by the late night noise and behavior of the immediately adjacent property. The expansion of operating intensity for a business who already is non-compliant with existing rules is not good governance by the City. There are standards that should be objectively applied to maintain a livable balance for the citizens of Newport Beach. Please note the staff report) does not accurately describe the mixed use project owned by my client. Residential units are in close proximity to Woody's. The report does not make a proper analysis of adverse impacts to our property. Ask the staff if they have conducted a noise and impact study? Remember in 2013 our property was a plan but in 2015 we are under construction and the staff must evaluate the most impacted property. The staff has failed to evaluate the impacts to our property. I also addressed the CC in October 2013 and incorporate my prior comments into the record for this hearing. I would ask the City to please make that transcript available to incorporate the objections. 3 There is no compelling public benefit in expanding the operating hours of an establishment who has a track record of violations of the existing permits and numerous Police reports. To expand any operating hours will be a voluntary action by the City that will cause direct adverse impacts to my client's property. As a process issue, I am aware of the lawsuit and settlement and its probable influence on City decision makers. We certainly expect all CC members who received political donations from the owners of Woody's to make proper public disclosure prior to any hearing and follow conflict of interest rules. I do not have the emails of the other CC members but I have copied Mr. Harp who can forward Gary S. McKitterick Esq. Partner Allen Matkins Lack Gamble Mallory & Natsis LLP 1900 Main Street, 5th Floor, Irvine, CA 92614-7321 (949) 553-1313 (main) (949) 851-5432 (direct) (949) 751-8270 (mobile) (949) 553-8354 (fax) =imaeaom��. Confidentiality Notice: The information contained in this electronic e-mail and any accompanying attachment(s) is intended only for the use of the intended recipient and may be confidential and/or privileged. If any reader of this communication is not the intended recipient, unauthorized use, disclosure or copying is strictly prohibited, and may be unlawful. If you have received this communication in error, please immediately notify the sender by return e-mail, and delete the original message and all copies from your system. Thank you. Confidentiality Notice: The information contained in this electronic e-mail and any accompanying attachment(s) is intended only for the use of the intended recipient and may be confidential and/or privileged. If any reader of this communication is not the intended recipient, unauthorized use, disclosure or copying is strictly prohibited, and may be unlawful. If you have received this communication in error, please immediately notify the sender by return e-mail, and delete the original message and all copies from your system. Thank you. 4 Received After Agenda Printed September 22, 2015 Item No. 14 From: City Clerk's Office Sent: Monday, September 21, 2015 1:23 PM To: McDonald, Cristal; Mulvey, Jennifer; Rieff, Kim Subject: FW: FOR THE PUBLIC RECORD RE. PROPOSED WOODY'S EXPANSION Importance: High Sensitivity: Confidential From: Denys Oberman��� Sent: Monday, September 21, 2015 1:23:00 PM (UTC-08:00) Pacific Time (US &Canada) To: Dept- City Council Cc: City Clerk's Office; Denys H. Oberman; Wetherholt, Drew; 'Linda Klein'; K. Stoddard; kbranman(agmaii.com Subject: FOR THE PUBLIC RECORD RE. PROPOSED WOODY'S EXPANSION Mayor and Members of the Council: We are writing this letter to voice Objection to the settlement and permit provisions providing for the expanded hours and operation of Woody's bar and restaurant, located on the Balboa Penninsula. This operator,for many years, has perpetuated behavior causing late night Nuisance to the neighborhoods in the area and dangerous behavior from client drunkeness causing safety risk to our community and the city. Calls for service to the NBPD and other complaint documentation are evidenced in numerous testimonials by residents and PD. We understand the City's desire to accomplish a settlement when it did not prevail in litigation due to a technical error.However,this is a case where the proposed permit not only continues to enable a problematic operator, but proposes to afford operating conditions of an unwise, unsafe nature. In addition to the late night (2 am) outside operation and dancing,the permit proposes to allow 12 NONSPECIFIC DAYS when these hours and type of operation are permitted, in addition to other days where late night outside patio noise is proposed as allowed. It is unwise to have this or any other operator be able to at entirely its own discretion select dates and times to engage in a form of operation that creates inherent Nuisances, disturbance and unsafe conditions impacting the surrounding residential neighborhoods. The City perpetually has a practice of providing ill-conceived special conditions to various parties on an inconsistent basis----which almost always backfires,to the detriment of both the Community and the City. PLEASE, RECONSIDER AND DO NOT GO DOWN THIS PATH. The Community for well over a decade has asked the City to maintain the safety and integrity of its residential areas in the Lido/Balboa Penninsula area, and in particular to STOP THE OVER-CONCENTRATION OF USES CAUSING DETRIMENTAL IMPACT TO THE SURROUNDING NEIGHBORHOODS. We respectfully ask that the City go back to the drawing board and not approve the proposed hours and type of operation---for the safety and integrity of the entire surrounding community. 1 This would be consistent with the will of the people, and also help eliminate the inordinate burden that this operator has proven to cause. Thank you. Denys Oberman Resident and stakeholder, Balboa Penninsula .................................................................................................................................. Regards, Denys H. Oberman, CEO p ! Shategy ood financiat Advisers OBERMAN Strategy and Financial Advisors 2600 Michelson Drive, Suite 1700 Irvine, CA 92612 Tel (949) 476-0790 Cell (949) 230-5868 Fax (949) 752-8935 Email: dhoCaDobermanassociates.com CONFIDENTIALITY NOTICE: The documents accompanying this transmission contain confidential information belonging to the sender which is legally privileged. The information is intended only for the use of the individual or entity named above. If you are not the intended recipient,you are hereby notified that any disclosure,copying,distribution or the taking of any action in reliance on the contents of this telecopied information is strictly prohibited. If you have received this transmission in error,please notify us immediately at 9491476.0790 or the electronic address above,to arrange for the return of the document(s)to us. 2 Received After Agenda Printed September 22, 2015 Item No. 14 From: Harp, Aaron Sent: Tuesday, September 22, 2015 7:32 AM To: Brown, Leilani Cc: Torres, Michael Subject: FW:Woody's Wharf Use Permit Amendment request No. UP2011-010 Attachments: Building A - 2nd Floor.pdf; Building A- 3rd Floor.pdf; Building G -2nd Floor Plan.pdf; Building G - 3rd Floor.pdf; Building H - 1st floor.pdf; Building H - 2nd Floor.pdf; Building H - 3rd floor.pdf; NorthSite Plan.pdf Additional correspondence. From: McKitterick, Gary [mailto:gmckitterick@allenmatkins.com] Sent: Monday, September 21, 2015 2:34 PM To: Harp, Aaron Cc: Mills Consulting; McKitterick, Gary; Saulus, Mary; Dixon, Diane Subject: FW: Woody's Wharf Use Permit Amendment request No. UP2011-010 Aa ro n, The staff report is materially incorrect when describing the location of residential units. Our plans are on file with the City. Building H 3rd floor(13 feet) and 2""floor(16 ft) from PL. From:Justin Park [mailto:iustin.park@wieland-davco.coml Sent: Monday,September 21, 2015 12:22 PM To: McKitterick,Gary<gmckitterick@allenmatkins.com> Cc: Mills Consulting<steve@millsconsultine.net>;Jerry Conrad <iconrad@ocoffice.net>; Graham,Susan <sgraham@allenmatkins.com>;Saulus, Mary<msaulus@allenmatkins.com> Subject: RE:Woody's Wharf Use Permit Amendment request No. UP2011-010 Please see attached drawings.There are 12 residential units within 100'of the PL, within buildings H,A, &G. Thanks, Justin Park Sr. Project Manager Wieland-Davco Corporation Mobile 517-819-0784 Confidentiality Notice: The information contained in this electronic e-mail and any accompanying attachment(s)is intended only for the use of the intended recipient and may be confidential and/or privileged. If any reader of this communication is not the intended recipient, unauthorized use, disclosure or copying is strictly prohibited, and may be unlawful. If you have received this communication in error, please immediately notify the sender by return e-mail, and delete the original message and all copies from your system. Thank you. J :a m �N ISN WWIWW bb bb p9I' r- mo va ¢ Q 's z wnus a '^ z vEu"r s 4 9 V �.YMi RIiRN] l6THM] i RTNII] � �. IOAI iEKI LN'I RT.I RY.I LCK� p M 9 3 Q 3 I r__ prop I I e pRlp I I, x� I l a § I I I I I I I C r Li J_L JL JL JL JhP *. 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I �� ir, Shl"' +moi I =�� • Sar '����®�!� I� mil \ ��c��f■CHRMFM FIRE V�VRAN 1 � If;IIIIY. 1111'11 ICIIIII. �IIII',II 11'1111► IIII'JI 111111 <�'i00i�i``1 I 1111111 1111111 1111111 Illllllr 1111111 I.-- 1111111 1111111 t. o- 1111M.1r111�}■� °"$` ■'� Mai ffi *�y�yy i i �� ���4 li�� �'� vs_., - ��hy�.��� �,�. an'a arae:+ f, S as :aa sax..0 ruu:xeaq =tea. ,i'� Received After Agenda Printed September 22, 2015 Item No. 14 From: Harp, Aaron Sent: Tuesday, September 22, 2015 10:40 AM To: Brown,Leilani Cc: Torres, Michael Subject: FW: Acoustical consulting test results Attachments: Exec Summ Itrhd.pdf; Building H - 3rd floor.pdf Importance: High Hi Leilani, An additional submittal by Mr. McKitterick. From: McKitterick, Gary [mailto:amckitterickColallenmatkins.com] Sent: Tuesday, September 22, 2015 10:19 AM To: Harp, Aaron; Dixon, Diane; Brandt, Kim; Tony Petros Cc: Mills Consulting; McKitterick, Gary; Saulus; Mary; Torres, Michael; 'Jerry Conrad' Subject: FW: Acoustical consulting test results Importance: High We will make a formal submittal of the acoustical report but to give you an idea of the significance of the code violations, see the attached executive summary.The code violations adversely impact my clients asset in a material way. We are in the process of early marketing of extremely high-end valuable residential real estate located next to Woody's. Kim, my clients plans for the mixed use development are on record with the City. However,to assist you in orientation to the residential unit location, we will be submitting some highlighted drawings.As an example, I have attached a depiction of our Building H third floor residential unit.As you see we have a residential unit approximately 13 feet from the Woody's PL.The Nighttime Noise Standard (15 min Leq) is 50 dB(A)for the exterior of this unit. Gary S. McKitterick Esq. Partner Allen Matkins Lack Gamble Mallory& Natsis LLP 1900 Main Street, 5th Floor, Irvine, CA 92614-7321 (949) 553-1313(main) (949) 851-5432(direct) (949) 751-8270(mobile) (949)553-8354(fax) Allen Matkins . From: Robert Schmidt [mailto:ras@rsacoustics.com] Sent: Monday,September 21, 2015 7:45 PM To: McKitterick,Gary<gmckitterick@allenmatkins.com>; 'Steven Mills'<smills@ecorlando.com> Cc: 'Jerry Conrad' <jconrad @ocoffice.net> Subject: RE:Acoustical consulting proposal 1 Attached is an executive summary of the measurement program results. Please feet free to call with any questions or if you need additional data. Robert Schmidt Principal RS ACOUSTICS INC 25031 Avenue Stanford,Suite 80 Santa Clarita,CA Email: ras@rsacoustics.com Office: (661)251-3965 Mobile: (661)212-1330 Confidentiality Notice: The information contained in this electronic e-mail and any accompanying attachment(s) is intended only for the use of the intended recipient and may be confidential and/or privileged. If any reader of this communication is not the intended recipient, unauthorized use, disclosure or copying is strictly prohibited, and may be unlawful. If you have received this communication in error, please immediately notify the sender by return e-mail, and delete the original tnessage and all copies from your system. Thank you. 2 moldwomn IMMINMEMM WINGFOMM RS ACOUSTICS INC 25031 Avenue Stanford, Suite 80 Santa Clarita, CA 91355 P: (661) 251-3965 F: (661) 310-3783 EXECUTIVE SUMMARY—NEWPORT BAY MARINA/WOODY'S WHARF Nighttime acoustical tests were conducted on Thursday Sept 17 through Saturday Sept 19 Thursday at the Newport Bay Marina project to determine noise levels generated by Woody's Wharf directly north of the project site. Measurements were conducted directly at the property line, the residential patios at the east elevation nearest the Woody's Wharf property line, and near the property line along the west elevation of the proposed mixed use building. During the nighttime, noise levels steadily increased until reaching their peak at approximately 11:30 p,m.to 12:00 a.m.then remained fairly steady until 1:45 a.m. when Woody's Wharf closed. Noise levels measured at the residential properties exceeded the Leq-50 dB(A) nighttime Newport Beach noise standards during all tests. The table below shows the location of acoustical tests, time of measurements, and the amount of exceedance of the Newport Beach noise standards. Summary of Acoustical Test Results Nighttime Noise Measured Levels Measurement Property Location Type Standard Measurement Times During Woody's Noise Standard (15 min Leq) Operation(15- Exceedance min —Leq) Property Line 10:00 pm-1:45 am 67-73 dB(A) 7-13 dB(A) near waterline Commercial 60dB(A) (Thursday 9/17) 1:45 am—2:00 am 62 dB(A) 2 dB(A) Level Patio— Residential/ East Elevation Mixed use 50 dB(A) 10:00 pm—12:00 am 58—65 dB(A) 8—15 dB(A) (Friday 9/18) Level Patio— Residential/ 12:30 am-1:45 am 64-67 dB(A) 14-17 dB(A) East Elevation Mixed use 50 dB(A) (Friday 9/18) 1:45 am—2:00 am 60 dB(A) 10 dB(A) Level Patio— Residential/ 10:00pm-1:45am 63-68dB(A) 13-18dB(A) East Elevation Mixed use 50 d8(A) (Saturday 9/19) 1:45 am—2:00 am 62 dB(A) 12 dB(A) Property Line Residential/ 50 dB(A) 12:15 am—12:30 am 62 dB(A) 12 dB(A) near front of Mixed use buildings. Commercial 60 dB(A) 12:15 am—12:30 am 62 dB(A) 2 dB(A) (Friday 9/18) C:\Users\Public\Documents\Projects\Newport Bay Marina\Report\Executive summary.docx Consultants in Architectural Acoustics & Noise Control I I I I B'-z w• �l'a ur' I N•-,ue• w r� u'-s• Irs yr 6'd Vl' 6'd VY tl3 C41 VY I N''1I? 3 iTP. 3E EM. I Hti-is P. _�RIGK - 16 r_J ra Fx �w5 19 M r RELEY£D p ¢ 9G BEDROOM T ' % KITCHEN l zAm M RE E I E><r. 160] WALLS = a s I I I 0' ii lK I sA� Sa' LIVING BA] NIT 27 '�°� zP Il 3•-1 ? 1 1 B 3 l� D 1 r 6 TO VY 14 IA71fo b.2 I I w ` � '• gym - 7vi,v4•--- �;,9. i 13 DINING ""' x T Ic � MARBLE C 4 I xml I - mew• 1v1 yr n• 3v 1O �n 1 � as n' ¢ � N 3 Z 8 l MSTR. rem � r--,-�-------- -- � V 6A BA.. d - - - - - - - _- a L� � lB- ,B 6A Ca�x�ay..f 1-6v e�z lrz• -•i w•_'— _ 2/AII.b.1 bF O6 + bF 9O R.�� ry qI ' 1 1 2 �� T E _ IquN c 1//�� -38— ? Y �f�a.+N nB-1 - A71.6.1 �I^ w .p q.-O.�n 66 56 3G 3x L ¢� 4' 11rz 1 fi MO 6B bA _ sF IR R I = bo I 1 b TYP. �1 PL 9^ 1 1 34V II VI 1 I I I a 1 1 BEDROOM 2 q.b. bF 6A l 6F 3 1 1 E BEDROOM i I I ' qB.b: � � qw-A°RB1.E n 1 I I E 1 I 1 _ r-ces --------------- E . m ID u 3U 3b' 6'-Y 93 VY 4'-1 VI 4'-1 VI ]3VY Y4 91/Y VU V3' .E6END Y as and yr IP 1ON 6`z w• �' mi ux M 6Pll'4 51®. �'tl 94' 1 �OAUtlE IV G/ a L/ A WAIJ. �9 ilk lrvb 4L1164"9 �I /9/'1B =1 A \I �. Received After Agenda Printed September 22, 2015 Item No. 14 September 22, 2015, Council Agenda Item 14 Comments The following comments an item on the Newport Beach City Council agenda are submitted by: Jim Mosher( iimmoshernvahoo.com ), 2210 Private Road, Newport Beach 92660 (949-548-6229) Item 14. Woody's Wharf Use Permit Amendment located at 2318 Newport Boulevard (PA2015-158) The Woody's Wharf matter has always been a strange item. My recollection is that when the attempt to legitimize their past unpermitted activities came before the Planning Commission in 2013, the main argument of their attorney, Roger Diamond, (which made little sense to me) was that by engaging in the activities for so long without permits (for dancing and live music, as I recall) Woody's had acquired a vested right compelling the City to issue a permit for the same. The Planning Commission reached a kind of compromise with them. I believe that if a citizen had appealed the PC decision to the Council, as the Municipal Code permitted, there would have been legitimate reasons for the Council to find that the past history was irrelevant and that at the time of the then-current application a nightclub-like operation was incompatible with the existing and planned nearby residential land uses. However, ignoring the provisions of the then-existent Municipal Code, clearly requiring appeals of Planning Commission decisions to be on City forms and accompanied by an appeal fee, then-Council Member Mike Henn appealed the matter by email, thereby (per the Code) declaring himself to be an "interested" party objecting to the Planning Commission decision —a position which he then argued to the rest of the Council. Mr. Diamond understandably sought judicial relief from those actions and as I understand it Councilman Henn's appeal was invalidated by the Appeals Court (since it violated the City's own codes), although they left unresolved the question of whether an interested party could sit in judgment on a matter they were interested in. In the sense of the City ignoring its own codes, the present item seems to me like "deja vu all over again." Title 20 of the Municipal Code (that is, our Zoning Code) is clear that the review authority for Conditional Use Permit applications is either an independent Hearing Officer, for permits in residential areas, or the Planning Commission for all other CUP's. See specifically, Table 5-1 ("Review Authority") of Chapter 20.50, Section 20.52.020 ("Conditional Use Permits and Minor Use Permits"), Section 20.60.020 ("City Council"), Section 20.60.030 ("Planning Commission") and Section 20.54.070 ("Changes to an Approved Project" —"A proposed change that does not comply with the criteria identified in subsection (8) of this section (Minor Changes Approved by the Director Without a Public Hearing) may only be approved by the original review authority for the project through a new permit application filed and processed in compliance with Chapter 20.50"). The City Council does (per Section 20.60.020.A.2) have a role in hearing appeals of the Planning Commission's Conditional Use Permit decisions, but assuming the September 5, 2013, Planning Commission decision still stands (as the staff report says it does), the 14-day window for appealing it has long lapsed. September 22, 2015, Council Item 14 Comments - Jim Mosher Page 2 of 2 Yet the matter is being oddly presented as if Woody's is appealing the 2013 PC decision, but when or how they made the appeal, or filed a new application, is not stated —that is, I am unable to find a written application or request from Woody's. While it is true that Condition 18 of the existing CUP (the present Attachment No. CC 3) reserves to the Council (and the PC) the right to modify or revoke the PC-granted CUP, that is only for the purpose of tightening the conditions to deal with a nuisance situation. The request here, however and by whomever it was made, is clearly for a relaxation of the PC- granted conditions, which would seem to come under the purview of existing Condition 20: that is it requires either an amendment to the PC-granted CUP or the processing of anew CUP. In either case, the proper review authority, under our Zoning Code, is the Planning Commission. In my view, the City Council should be hearing this matter only on appeal. That said, here are some specific comments on the Draft Resolution of Approval (Attachment No. CC 1)which I think should be presented to the Planning Commission rather than the City Council: 1. Page 2: There seems to be word missing in the final "Whereas": "WHEREAS, a public hearing before the City Council was held on September 22, 2015, in the City Hall Council Chambers, 100 Civic Center Drive, Newport Beach, California." 2. Pages 6-7: The reason for renumbering the CUP from "UP2011-010" to "UP2015-158" is not explained, and awkward at best since the first paragraph on page 7 says UP2011- 010 will become null and void with this approval, yet UP2011-010 is repeatedly referred to in the Conditions of Approval (Exhibit "A"). 3. Page 8: A special "12 other nights" is referred to in several conditions (for example, 3, 34, and 48). Are these the same 12 nights, or can different sets of 12 be chosen with regard to different conditions? Wouldn't it be better to put all the conditions related to them in one place? 4. Page 8: The intent of the amended Condition 6 is unclear. Is there a minimum number of hours the applicant has to provide meal service? Or is it totally up to their discretion as long as it, by some unstated measure, remains their"principal business"? 5. Page 10: Although primarily carried over from the PC approval, Condition 24 strikes me as rather strange. How is the applicant supposed to clean the outdoor areas? Or is the City telling them to leave them uncleaned? If they never clean won't the Health Department complain? 6. Page 11: In Condition 26, who defines what "the interior of a residential structure" is? Is it with the doors/windows open or closed? 7. Page 14: Condition 58 seems to be repetitive of Condition 45. Shouldn't they be combined?