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Home My WebLink About14 - Woody's Wharf Use Permit Amendment located at 2318 Newport Boulevard (PA2015-158) CTY OF J+ - NEWPORT BEACH City Council Staff Report September 22, 2015 Agenda Item No. 14 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Kimberly Brandt, Community Development Director— (949) 644-3226, kbrandt@newportbeachca.gov PREPARED BY: Gregg Ramirez, Senior Planner PHONE: 949-644-3219 TITLE: Woody's Wharf Use Permit Amendment located at 2318 Newport Boulevard (PA2015-158) ABSTRACT: Amend Conditional Use Permit No. UP2011-010 as follows: 1) extend the opening hour of the restaurant from 10:00 a.m. to 9:30 a.m., daily; 2) extend the closing hour of the restaurant's outdoor dining area from 11:00 p.m. to 2:00 a.m., on Thursday nights as well as up to 12 additional nights per year, which are in addition to the permitted 2:00 a.m. closing hour on Friday and Saturday nights; 3) allow patron dancing within the interior of the restaurant on Thursday nights and up to 12 additional nights per year, which are in addition to the permitted patron dancing on Friday and Saturday nights; 4) allow the easterly outdoor area, adjacent to the boat dock ramp, to be used by patrons for smoking, eating, and/or drinking on a daily basis until 8:00 p.m.; 5) delete conditions of approval related to the outdoor dining area patio cover requirement; and 6) modify and/or delete various operational conditions of approval related to the restaurant's operations. RECOMMENDATION: a) Conduct a public hearing; b) Waive the Conditional Use Permit filing fee; c) Find the project to be categorically exempt pursuant to Title 14 of the California Code of Regulations (Section 15301, Article 19 of Chapter 3, Guidelines for Implementation of the California Environmental Quality Act) under Class 1 (Existing Facilities); and d) Adopt Resolution No. 2015-75, A Resolution of the City Council of the City of Newport Beach, California, Approving an Amendment to Conditional Use Permit No. Up2011-010 (and Re-Number as UP2015-037) to Modify Opening Hours and Closing Hours; Design and Operational Conditions of Approval Related to the Outdoor Dining Area Patio; Days Patron Dancing is Allowed; Use of the Easterly Outdoor Patio; and Modifying Operational Conditions of Approval at an Existing Eating and Drinking Establishment Located at 2318 Newport Boulevard (PA2015-158). 14-1 FUNDING REQUIREMENTS: Fee Waiver Due to the relationship of this request to the pending settlement agreement, staff suggests the City Council waive the application fee of a $5,000.00 deposit. DISCUSSION: INTRODUCTION Project Setting The restaurant is located on the east side of Newport Boulevard between 24th and 26th Streets overlooking the Rhine Channel. Refer to Attachment No. CC 8 for the vicinity map. The property is comprised of three lots with a total area of approximately 13,260 square feet, with a commercial building which crosses the interior property lines. The restaurant has been in operation since 1965 and offers live entertainment. The restaurant building measures approximately 3,305 square feet with 1,173 square feet of interior dining area and a 709 square-foot outdoor dining area. There are 26 on-site parking spaces (6 spaces are tandem in accordance with the valet parking plan). The site plan and floor plans are depicted in Attachments No. CC 6 and No. CC 7. The project provides space for approximately eight (8) boats on the Rhine Channel, available for patrons who choose to take a boat to the restaurant. The current conditional use permit also reduced the number of required parking spaces from 46 to 40 and allows the use of valet parking on an as- needed basis. Project Description The request involves changes to operation characteristics that: 1) extend the opening hour of the restaurant from 10:00 a.m. to 9:30 a.m., daily; 2) extend the closing hour of the restaurant's outdoor dining area from 11:00 p.m. to 2:00 a.m., on Thursday nights as well as up to 12 additional nights per year, which are in addition to the permitted 2:00 a.m. closing hour on Friday and Saturday nights; 3) allow patron dancing within the interior of the restaurant on Thursday nights and up to 12 additional nights per year, which are in addition to the permitted patron dancing on Friday and Saturday nights; 4) allow the easterly outdoor area, adjacent to the boat dock ramp, to be used by patrons for smoking, eating, and/or drinking on a daily basis until 8:00 p.m.; 5) delete conditions of approval related to the outdoor dining area patio cover requirement; and 6) modify and/or delete various operational conditions of approval related to the restaurant's operations. Backaround A restaurant, with various operating characteristics, has existed at the location since 1965. The current operator took over management of the business in 2002. A September 2013 Planning Commission approval allowed changes to the use of the outdoor dining patio, waived six parking spaces, allowed valet parking to be used on an "as-needed" basis, and allowed patron dancing on a limited basis. This decision was subsequently appealed to the City Council and resulted in the modification of the Planning Commission decision on October 8, 2013. Following the Council decision, the applicants pursued legal action through the Orange County Superior Court and ultimately the California Court of Appeals. On January 29, 2015, in Woody's Group, Inc. v. City of Newport Beach and Michael Henn (OCSC Case No. 30-2013-00687091; Court of Appeals Case No. G050155), the Court of Appeal (4th Dist. Div. 3) issued an Order that reversed the City's preliminary injunction and directed the trial court to vacate the order denying Woody's petition for writ of mandate and enter a new order granting it. This Order had the effect of overturning the City Council's October 8, 2013, action and upholding the Planning Commission's September 5, 2013 decision (i.e., allowing the outdoor patio area to remain open until 2:00 a.m. on Friday 14-2 and Saturday, extending the opening hour of the restaurant and outdoor patio area from the 11:00 a.m. to 10:00 a.m. daily, allowing dancing in the interior of the restaurant on Friday and Saturday, and allowing for the removal of tables and chairs in the interior of the restaurant, etc.). This request is to modify the Planning Commission's September 5, 2013, decision. DISCUSSION Analysis General Plan/CLUP The Land Use Element of the General Plan and the Coastal Land Use Plan (CLUP) designate the site and the adjacent properties as Mixed Use-Water Related (MU-W2 and MU-W, respectively). The project is consistent with this designation since an eating and drinking establishment is a visitor-serving and commercial use. Furthermore, Land Use Policy LU 6.19.2 (Bay Fronting Properties) encourages marine- related and visitor-serving retail, restaurant, hotel, institutional, and recreational uses, with some allowance for residential use. Both the General Plan and CLUP set a development intensity limit of 0.5 floor area to land area ratio (FAR) for non-residential development. The 3,305 total square-foot building and 13,260 gross square feet for the project site results in an FAR of 0.25. The project complies with the maximum FAR permitted by the General Plan FAR designated for commercial uses. Zoning The existing eating and drinking establishment is located in MU-W2 (Mixed-Use Water Related) Zoning District and is consistent with the land uses intended for properties fronting Newport Boulevard within the McFadden Square/Cannery Village neighborhood. Main Outdoor Dining Patio Area The main outdoor dining area is located outside of the main dining room of the restaurant and measures 709 square feet with seating for 66 persons. The removal of a portion of the tables and chairs as proposed on Thursday, Friday, and Saturday nights will provide standing area for patrons of approximately 400 square feet. The number of patrons that will be allowed to occupy the space will be subject to the Chief Building Official's determination. Additionally, the applicant is requesting the deletion of the requirement of the installation of a patio covering in conjunction with the use of the outdoor dining patio area after 11:00 p.m. and the revision or deletion of related conditions of approval (Attachment CC 3, Condition Nos. 2, 4, 27, 28, 57, and 59-63). The use of patio area for live entertainment and/or dancing would be prohibited, and the restaurant operations will be subject to the City's noise control standards as stated in Condition No. 26. Staff also notes that an acoustical study prepared in January 2013, determined that the music from Woody's Wharf is contained within the structure and outdoor patio area. The report further concluded that closing the outdoor patio area had no effect on the noise levels and the noise created on the outdoor patio area is negligible (Attachment CC 5). Therefore, staff is supportive of removing the requirement to install a patio cover and related conditions of approval. Staff also notes that the installation of a patio cover required a variance, which Planning Commission also approved in September 2013. Since the patio cover will not be installed, the variance will not be activated and will automatically expire. Condition No. 7 is proposed to be modified to delete the restriction that special events and/or promotional activities from occurring within the outdoor dining patio. Staff is supportive of this modification given that special event permits are evaluated and approved on a case-by-case basis with appropriate conditions of approval to ensure neighborhood compatibility, public safety, etc. Extending the hours of operation of the outdoor dining patio is discussed in a separate section below. 14-3 Ancillary Outdoor Patio (Dock Ramp) The second, smaller outdoor patio area adjacent to the boat dock ramp on the easterly side of the property is proposed to be used by customers for smoking, eating, and/or drinking on a daily basis until 8:00 p.m. Although the future Newport Bay Marina development is a mixed-use project, the tenant spaces adjacent to this patio are being developed for office and retail uses that will provide a buffer between this patio area and the residences. See Attachment No. CC 7 for the location of this patio. Live Entertainment and Dancing The restaurant is currently allowed to have live entertainment and dancing pursuant to the Planning Commission approval in September 2013. The live entertainment operates in conjunction with a valid live entertainment permit that was issued on March 14, 2006. Although the current conditional use permit allows dancing, the live entertainment permit must be amended to reflect approved changes to the operation and related conditions of approval. The proposed amendment would allow dancing within the interior of the restaurant on Thursday, Friday and Saturday nights and up to 12 additional nights per year, where it is currently limited to Friday and Saturday nights. The 12 additional nights would be at the operator's discretion, but would likely be used during summer or holidays and the revised condition of approval requires the operator to notify the Community Development Director 24 hours prior to having dancing on those additional nights (Condition No. 34). Operationally, the dance floor opens at approximately 10:00 p.m., the tables and chairs within the center of the main dining area are removed to create an approximate 400 square-foot dance floor. Additionally, a portion of the tables and chairs on the outdoor dining area are removed to provide an area for patrons displaced by the dance floor, as depicted on the Late Hour Floor Plan (Attachment No. CC 6). Similar to the 2013 conditional use permit approval, the draft resolution carries forward conditions of approval that include a requirement for an Operator License, security plan, licensed security personnel when live entertainment or dancing is provided (Condition No. 35), and employee training in the service of alcoholic beverages. It is anticipated that the presence of security personnel and the employee training will help reduce incidents that cause a drain on police resources in the vicinity. These conditions have been incorporated into the draft resolution (Attachment CC 1). Hours of Operation The proposed amendment includes a change of the restaurant opening hour from 10:00 a.m. to 9:30 a.m., to accommodate brunch and breakfast and maintain the closing hour of 2:00 a.m., daily for the interior of the restaurant. Proposed Hours of Operation Restaurant Area Sunday-Wednesday Hours Thursday—Saturday Hours Interior Dining Room 9:30 a.m. —2:00 a.m. 9:30 a.m. —2:00 a.m. Main Outdoor Dining Area 9:30 a.m. — 11:00 p.m.' 9:30 a.m. — 2:00 a.m. Ancillary Patio Area 9:30 a.m. — 8:00 p.m. 9:30 a.m. — 8:00 p.m. *9:30 a.m. —2:00 a.m. allowed an additional 12 Sunday— Wednesday nights per year The amendment also includes the extension of the hours of the outdoor dining area by changing the opening hour from 10:00 a.m. to 9:30 a.m., daily; and the closing hour from 11:00 p.m. daily to 2:00 a.m. on Thursday nights and 12 other nights per year (e.g. holidays, boat parade, summer evenings, etc.) in addition to all Friday and Saturday nights (Condition No. 3). Staff has no objections with the proposed extension of the opening hour, since ambient noise levels are higher during the daytime hours and noise impacts and complaints have not been received during those hours. As with all uses, compliance with the City's noise ordinance is also required for all facets of the operation. 14-4 In order to alleviate potential noise impacts created by the main outdoor dining area in the evenings, a draft condition of approval prohibits amplified music (background music) on the outdoor patio from being audible outside the patio at all times and it must cease at 10:00 p.m. Additionally, the doors to outdoor dining area must remain closed, except for ingress and egress, when live entertainment occurs on the interior of the restaurant. Should the City Council approve the amended use permit, the operator would be required to obtain an Operator 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. High 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, Newport Bay Marina, which is presently under construction and includes residential units located approximately 100 feet to the south. Restricting live entertainment to the interior, ceasing sound amplification at 10:00 p.m. on the outdoor 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: 14-5 . 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 land. Staff supports this revision as it provides added clarity to the validity of the CUP. . Condition No. 19. The proposed modification clarifies the intent of a standard condition of approval prohibiting the restaurant from operating as a bar, tavern or nightclub. Since the zoning code defines those uses as utilizing a Type 48 ABC License (On Sale General, Public Premise) staff supports this revision which helps clarify that the restaurant is allowed to have all envisioned uses including dancing and live entertainment. . Condition No. 24. The proposed modification clarifies that the use of cleaning solutions and the high pressure or steam cleaning devices is prohibited not only on the outdoor dining patio but all outdoor areas. Staff supports this language as it will help limit pollutant discharge into the bay. . Condition No. 33. The proposed modification clarifies that live entertainment is not permitted in any outdoor areas including the main outdoor dining patio and the easterly outdoor area. Staff supports this modification as it clarifies the locational prohibition of live entertainment. . Condition Nos. 45 and 58. The modified conditions specify the building code-sections, authority of the Chief Building Official and procedures that will be used to determine the occupancy load of the restaurant. Staff supports the modified conditions as they clarify that the occupancy load will be determined pursuant to the procedures and regulations applicable to this use. . Conditions No. 48 and 51: The proposed modification allows the applicant to hold events or activities by an outside promoter and collect admission after 10 p.m. on Thursday, Friday, and Saturday nights, as well as 12 other nights a year. Additionally, the applicant can collect admission after 10 p.m. on Thursday, Friday, and Saturday nights, as well as 12 other nights a year; the admission charge may include a minimum drink order. Staff supports the modification of Condition No. 48 and deletion of Condition No. 51 given that Condition No. 52 requires the applicant to comply with State requirements for a Type 47 ABC license and that the service of food is the principal use of the facility. . Condition No. 50. The proposed modification clarifies that "happy hour' drink promotions are allowed with any type of food service; staff supports this change. . Condition No. 52. The proposed modification requires the establishment to comply with California Department of Alcoholic Beverage Control requirements for Type 47 ABC licenses. The requirement that alcohol sales not exceed food and retail sales has been deleted. . Condition No. 55: This condition has been revised to state that compliance with the City's sign code is required. • Conditions No. 59: The reference to the installation of accessibility improvements is proposed to be deleted due to Condition No. 15 which states that the applicant will comply with all applicable rules, regulations, and laws. Staff supports this change. Use Permit Findings Pursuant to Section 20.52.020.F of the Zoning Code, the Planning Commission must make the following findings in order to approve a conditional use permit. Each finding is detailed in the attached draft resolution (Attachment CC 1): 1. The use is consistent with the General Plan and any applicable Specific Plan; The Mixed-Use Water Related (MU-W2 and MU-W) land use designations of the General Plan and Coastal Land Use Plan are intended to encourage water related uses intermixed with general commercial, visitor- serving commercial and residential 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 and complementary to the surrounding residential uses. The facility is not located in a specific plan area. 14-6 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; The use is also consistent with the Mixed-Use Water Related (MU-W2) Zoning District. The MU-W2 district applies to waterfront properties in which marine-related uses may be intermixed with general commercial, visitor-serving commercial and residential dwelling units on the upper floors. Food Service uses can be expected to be found in this area and similar locations and are complementary to the surrounding commercial and residential uses. 3. The design, location, size, operating characteristics of the use are compatible with the allowed uses in the vicinity; The proposed conditions of approval related to the operational changes will help minimize potential conflicts with nearby residential and commercial land uses. The proposed project will comply with Zoning Code standards for eating and drinking establishments. Valet parking is required during live entertainment and will be used at the discretion of the operator during peak business periods to optimize use of the on- site parking lot. There are no exterior changes proposed to the outside of the building. 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 Woody's Wharf has existed in this location since the 1960s. The project site has proven to be physically suitable in size to accommodate the restaurant use and to be an appropriate location. 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 emergency access is provided. 5. 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. 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. Adequate parking, including the requirement for valet parking during live entertainment, will be provided for the restaurant at all times. To ensure that the operational changes do not create a detrimental impact during late hours, the operator will be required to secure an Operator License and will be required to take reasonable steps to discourage and correct objectionable conditions that constitute a nuisance to areas surrounding the establishment and adjacent properties during business hours. Should the operator be unable to abide by the conditions of approval or prevent objectionable conditions from occurring, the Police Department will have the authority to modify, suspend, or revoke the operator's ability to maintain late-hour operations. Alternatives The City Council may choose to modify the applicant's proposed request or conditions of approval. Should City Council wish to deny the applicant's request, staff will draft the appropriate resolution for consideration at a later City Council public hearing. ENVIRONMENTAL REVIEW: This project has been determined to be categorically exempt under Section 15301, of the California Environmental Quality Act (CEQA) Guidelines — Class 1 (Existing Facilities). This exemption applies to facilities where it can be demonstrated the project involves negligible or no expansion of the existing use. The proposed project does not include building additions or alterations. The change in hours of operation including additional days when live entertainment and dancing area allowed and other business related operational conditions of approval do not constitute the expansion of use pursuant to CEQA. 14-7 NOTICING: Notice of this application was published in the Daily Pilot, mailed to all owners of property within 300 feet of the boundaries of the site (excluding intervening rights-of-way and waterways) including the applicant and posted on the subject property at least 10 days prior to the decision date, consistent with the provisions of the Municipal Code. Additionally, the item appeared on the agenda for this meeting, which was posted at City Hall and on the City website. ATTACHMENTS: Description Attachment No. CC 1 - Draft Resolution for Approval Attachment No. CC 2 - Modified Conditions of Approval Attachment No. CC 3- Planning Commission Resolution (UP2011-010-Current Use Permit) Attachment No. CC 4- Live Entertainment Permit Attachment No. CC 5 - Noise Study (January 2013) Attachment No. CC 6 - Proposed Late Hour Floor Plan Attachment No. CC 7- Proposed Plans -Site Plan and Floor Plan Attachment No. CC 8-Vicinity Map 14-8 Attachment No. CC 1 Draft Resolution for Approval with Findings and Conditions 14-9 RESOLUTION NO. 2015- A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH, CALIFORNIA, APPROVING AN AMENDMENT TO CONDITIONAL USE PERMIT NO. UP2011-010 (AND RE-NUMBER AS UP2015-037) TO MODIFY OPENING HOURS AND CLOSING HOURS; DESIGN AND OPERATIONAL CONDITIONS OF APPROVAL RELATED TO THE OUTDOOR DINING AREA PATIO; DAYS PATRON DANCING IS ALLOWED; USE OF THE EASTERLY OUTDOOR PATIO; AND MODIFYING OPERATIONAL CONDITIONS OF APPROVAL AT AN EXISTING EATING AND DRINKING ESTABLISHMENT LOCATED AT 2318 NEWPORT BOULEVARD (PA2015- 158). WHEREAS, the subject property is located within the Mixed Use — Water Related Zoning District (MU-W2) and the General Plan Land Use Element category is also Mixed Use —Water Related District (MU-W2); WHEREAS, the subject property is located within the coastal zone. The Coastal Land Use Plan category is Mixed Use—Water Related District (MU-W); WHEREAS, a public hearing before the Planning Commission was held on September 5, 2013, in the City Hall Council Chambers, 100 Civic Center Drive, Newport Beach, California. A notice of time, place and purpose of the meeting was given in accordance with the Newport Beach Municipal Code (NBMC). Following consideration of all evidence, both written and oral, the Planning Commission at this meeting approved: 1) extending the opening hour of the restaurant and outdoor dining area from 11:00 a.m. to 10:00 a.m., daily; 2) extending the closing hour of the outdoor dining area from 11:00 p.m. to 2:00 a.m. on Friday and Saturday nights; 3) the introduction of patron dancing within the interior of the restaurant on Friday and Saturday nights; 4) removing tables and chairs within the outdoor dining area on Friday and Saturday nights; 5) the use of the valet parking on an as-needed basis; and 6) waiver of a portion of the required parking; WHEREAS, on September 9, 2013, former Council Member Henn filed a written call for review of the Planning Commission's decision with the City Clerk. On October 8, 2013, the City Council held a public hearing on Respondent Henn's call for review. Following the public hearing, on November 12, 2013, the City Council adopted Resolution 2013-75, that allowed for an earlier opening time for the restaurant, relaxed the valet parking requirements, and approved a variance to construct the enclosure over the outdoor dining area, but in all other respects, overturned the Planning Commission decision, including allowing patron dancing, allowing the outdoor dining area to be open -1- 14-10 until 2:00 a.m., and allowing the removal of tables and chairs from any section of the restaurant after 10:00 p.m.; WHEREAS, on November 13, 2013, Woody's Wharf filed a petition and complaint in the Superior Court for the State of California, County of Orange in an action entitled Woody's Group, Inc., dba Woody's Wharf, et al., v. City of Newport Beach, et al., Case No. 30-2013-00687091, challenging the City Council's November 12, 2013 decision; WHEREAS, on May 19, 2014, the Honorable Judge Derek Hunt issued an order denying Woody's Wharf challenge and upholding the City Council's November 12, 2013 decision; WHEREAS, on January 29, 2015, the California Court of Appeal, Fourth Appellate District, Division 3, reversed Judge Hunt's decision and reinstated the Planning Commission's September 5, 2013 decision; WHEREAS, Woody's Wharf has requested the following changes in the operational characteristics of the existing restaurant: 1) to extend the opening hour of the restaurant from 10:00 a.m. to 9:30 a.m., daily; 2) to extend the closing hour of the restaurant's outdoor dining area from 11:00 p.m. to 2:00 a.m., on Thursday nights as well as up to twelve (12) additional nights per year, which are in addition to the permitted 2:00 a.m. closing hour on Friday and Saturday nights; 3) to allow patron dancing within the interior of the restaurant on Thursday nights and up to twelve (12) additional nights per year, which are in addition to the permitted patron dancing on Friday and Saturday nights; 4) to allow the easterly outdoor area, adjacent to the boat dock ramp, to be used by patrons for smoking, eating, and/or drinking on a daily basis until 8:00 p.m. daily; 5) to delete conditions of approval related to the outdoor dining area patio cover requirement; and 6) to modify and/or delete various operational conditions of approval related to the restaurant's operations; WHEREAS, a public hearing before the City Council held on September 22, 2015, in the City Hall Council Chambers, 100 Civic Center Drive, 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 City Council at this meeting. The request before the City Council did not include sustaining the variance for the outdoor dining patio area (Variance No. VA2013-006) as approved by the Planning Commission. Therefore, the variance will expire when not implemented by the applicant. NOW, THEREFORE, the City Council of the City of Newport Beach hereby resolves as follows: -2- 14-11 Section 1: In accordance with NBMC Sections 20.48.030 (Alcohol Sales) and 20.52.020 (Conditional Use Permit), the following findings and facts in support of such findings are set forth: 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 NBMC Section 20.48.030 (Alcohol Sales) 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. Operational conditions of approval relative to the sale of alcoholic beverages will ensure compatibility with the surrounding use and minimize alcohol-related impacts. A-2. Pursuant to NBMC Chapter 5.25, the project has been conditioned to require that the applicant, as well as any future operators, obtain an Operator License to ensure the establishment is operated in a safe manner and compatible with the neighborhood. A-3. The subject property is located within a mixed use district developed primarily with commercial uses. Across the Rhine Channel, the closest residential district is approximately 570 feet away. To the north, the closest residential use is approximately 200 feet away and residential uses associated with the future Newport Bay Marina Project will be approximately 100 feet away. To the west, the nearest residential uses are 230 feet away; and to the north the nearest residential uses are approximately 200 feet away. The nearest park is the public beach adjacent to the West Ocean Front Boardwalk over 650 feet from the subject property. There are no day care centers, recreation facilities, places of religious assembly, or schools in proximity to the subject property. In accordance with NBMC Section 20.52.020, eating and drinking establishments classified as "Food Service, Late Hours" require the approval of a Conditional Use Permit within the Mixed-Use Water Related (MU-W2) Zoning District. In accordance with NBMC Section 20.52.020(F), the following findings and facts in support of such findings are set forth: Finding: B. The use is consistent with the General Plan and any applicable specific plan. -3- 14-12 Facts in Support of Finding: B-1. The Mixed-Use Water Related (MU-W2 and MU-W) land use designations of the General Plan and Coastal Land Use Plan are intended to encourage water related uses intermixed with general commercial, visitor-serving commercial and residential 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 including those with live entertainment and dancing 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. 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. Facts in Support of Finding: C-1. The subject property is located in the Mixed Use — Water Related Zoning District (MU-W2), and eating and drinking establishments classified as "Food Service, Late Hours" require the approval of a Conditional Use Permit. Food Service including those with late hours and live entertainment can be expected to be found in this area and similar locations and are complementary to the surrounding commercial and residential uses. 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 NBMC Chapter 5.25, the applicant and any future operator of the eating and drinking establishment is required, to obtain an Operator License from the Newport Beach Police Department (NBPD). Finding: D. The design, location, size, and operating characteristics of the use are compatible with the allowed uses in the vicinity. -4- 14-13 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. In order to reduce the potential impact on neighboring properties, a condition of approval is included that prohibits recorded music or other types of sound amplification within the outdoor dining patio area after 10:00 p.m. daily. Additionally, conditions of approval require the doors exiting the building to the outdoor dining patio area to remain closed whenever live entertainment is performed inside the building after 10:00 p.m., except when persons are entering and exiting the building. D-3. 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. D-4. Adequate number of parking spaces are available on-site and there is available public parking in municipal lots located in the vicinity. The use of the valet parking service when live entertainment occurs and on an as-needed basis will maximize on-site utilization of the parking lot and in the case that the lot is full, parking is available in the municipal metered parking lot across the street (the meters are not in effect after 6:00 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. Facts in Support of Finding: E-1. This is an eating and drinking establishment that has existed in this location since the 1960's. The project site has proven to be physically suitable in size to accommodate the restaurant use. E-2. The project site is located on Newport Bay between 24th and 26th Street overlooking the Rhine Channel and is surrounded by similar commercial uses located to the north (next door), and the northwest of the use. This is an appropriate location for an eating and drinking establishment. The restaurant use is complementary to the existing commercial uses in the area, as well as convenient to serve the residential uses located to the north and east across the Rhine Channel in relation to the project site. -5- 14-14 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. Although the establishment will operate late hours and offer live entertainment and dancing, the project has been reviewed and appropriately conditioned to ensure the continued operation of the establishment as a bona fide eating and drinking establishment based on the approval of the Type 47 Alcoholic Beverage Control license. F-2. The applicant has operated the existing eating and drinking establishment in this location since 2002, and is required to proactively control noise generated by patrons of the restaurant. The operator will be required to obtain an Operator License from the NBPD. 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 an objectionable condition occur. Section 2: The City Council of the City of Newport Beach hereby approves Amendment No. 1 to Use Permit No. UP2011-010 (Re-numbered to UP2015-158). The business owner has requested the following changes in the operational characteristics of the existing restaurant: 1) to extend the opening hour of the restaurant from 10:00 a.m. to 9:30 a.m., daily; 2) to extend the closing hour of the restaurant's outdoor dining area from 11:00 p.m. to 2:00 a.m., on Thursday nights as well as up to twelve (12) additional nights per year, which are in addition to the permitted 2:00 a.m. closing hour on Friday and Saturday nights; 3) to allow patron dancing within the interior of the restaurant on Thursday nights and up to Twelve (12) additional nights per year, which are in addition to the permitted patron dancing on Friday and Saturday nights; 4) to allow the easterly outdoor area, adjacent to the boat dock ramp, to be used by patrons for smoking, eating, and/or drinking on a daily basis until 8:00 p.m.; 5) to delete conditions of approval related to the outdoor dining area patio cover requirement; and 6) to modify and/or delete various operational conditions of approval related to the -6- 14-15 restaurant's operations as included in Exhibit A, which is attached hereto and incorporated by reference. This resolution supersedes the Conditional Use Permit No. UP2011-010 as authorized by Planning Commission Resolution No. 1922 which upon vesting of the rights authorized by this Amendment No. 1 to Conditional Use Permit No. UP2011-010 (re-numbered as UP2015-158) shall become null and void. Section 3: This project has been determined to be categorically exempt under Section 15301, of the California Environmental Quality Act (CEQA) Guidelines — Class 1 (Existing Facilities). This exemption applies to facilities where it can be demonstrated the project involves negligible or no expansion of the existing use. The proposed project does not include building additions or alterations. The change in hours of operation, including additional days when live entertainment and dancing are allowed and other business- related operational conditions of approval, do not constitute an expansion of use pursuant to CEQA. Section 4: If any section, subsection, sentence, clause or phrase of this resolution is, for any reason, held to be invalid or unconstitutional, such decision shall not affect the validity or constitutionality of the remaining portions of this resolution. The City Council hereby declares that it would have passed this resolution, and each section, subsection, sentence, clause or phrase hereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases be declared invalid or unconstitutional. Section 5: The recitals provided above are true and correct and are incorporated into the substantive portion of this resolution. Section 6: The Mayor shall sign and the City Clerk shall certify the vote adopting passage of this resolution. ADOPTED this 22nd day of September, 2015. By: Edward D. Selich, Mayor ATTEST: Leilani I. Brown, City Clerk Attachment: Exhibit A: Conditions of Approval -7- 14-16 EXHIBIT "A" CONDITIONS OF APPROVAL 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). Prior to implementation of the activities approved by this application, the applicant shall submit a revised floor plan for approval by the Community Development Director that reflects the limitations and restrictions imposed by the conditions of approval. 2. Conditional Use Permit No. UP2011-010 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 of the restaurant shall be limited to between 9:30 a.m., and 2:00 a.m., daily. The hours of the outdoor dining area are limited to 9:30 a.m. and 11:00 p.m. daily, however, on Thursdays, Fridays and Saturdays, as well as twelve (12) other nights throughout the year, the closing hour may be extended to 2:00 a.m. The applicant/operator shall notify the City's Community Development Director, or his or her designee, in writing at least twenty-four (24) hours prior to extending the closing hour of the outdoor dining area for each of the twelve (12) other nights throughout the year. The easterly outdoor area, adjacent to the boat dock ramp, is permitted to be used by customers for smoking, eating, and/or drinking on a daily basis until 8:00 p.m. The applicant/operator, including any future operator, shall secure and maintain an Operator License issued by the Chief of Police, pursuant to Chapter 5.25 of the NBMC. In no case shall the eating and drinking establishment be permitted to operate beyond the hour of 2:00 a.m., daily. 4. All doors and windows of the interior of the eating and drinking establishment shall remain closed whenever live entertainment occurs after 10:00 p.m., except for the ingress and egress of patrons and employees. Doors shall not be propped open, or remain open longer than necessary, to allow for the ingress and egress of patrons and employees. 5. The Operator License required to be obtained pursuant to Condition No. 3 and Chapter 5.25 will be subject to the same conditions of approval in this Use Permit that are intended to regulate and control potential late-hour nuisances associated with the operation of the establishment. 6. Full meal service shall be provided; however the closing time of the kitchen will be at the discretion of the applicant/operator. -8- 14-17 7. The outdoor dining area shall be used in conjunction with the eating and drinking establishment. 8. The outdoor dining area shall be limited to 709 square feet in area. 9. The outdoor dining area shall be limited to a maximum of 66 seats, including disabled seats/table space, consistent with the floor plans as approved by Plan Check set of plans PC 1141-2011. 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. Removal of dining tables and chairs shall be prohibited on Sundays, Mondays, Tuesdays and Wednesdays. 10. All employees shall park on-site or in the municipal parking lots in the vicinity. 11. The net public area of the interior portion of the eating and drinking establishment shall not exceed 1,173 square feet and the outdoor dining area shall not exceed 709 square feet for a total of 1,882 square feet of net public area. 12. A minimum of 26 parking spaces shall be provided on-site and payment of in lieu parking fees for 10 spaces for the operation of the eating and drinking establishment. A total of 40 parking spaces shall be provided on-site and by payment of in lieu fees (annually for four parking spaces) for all hours of operation of the establishment (one parking space for each 40 square feet of net public area, 1,589 sq. ft.). Valet parking service shall be provided whenever live entertainment occurs and on an as-needed basis. 13. The applicant/operator shall conspicuously post and maintain signs at all outdoor dining, waiting, smoking and parking areas indicating to patrons the proximity of the restaurant and public dock and boat slip areas to the residential areas, requesting patrons; "Be courteous and respectful of our residential neighbors while outside the establishment." 14. The project is subject to all applicable City ordinances, policies, and standards, unless specifically waived or modified by the conditions of approval. 15. 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. 16. 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. -9- 14-18 17. 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. 18. This Conditional Use Permit shall run with the land; however, 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. 19. Approval of Conditional Use Permit No. 2011-010 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. This condition is not intended to supersede any activity explicitly authorized in this Conditional Use Permit (e.g., dancing, consuming alcoholic beverages, etc.). 20. 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. 21. 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. 22. 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 adjustments, replacements, repairs, and cleaning as part of regular maintenance. 23. Water should not be used to clean paved surfaces such as sidewalks, driveways, parking areas, etc. except to alleviate immediate safety or sanitation hazards. 24. The washing of the outdoor dining patio or any other outdoor area with any cleaning solutions or the use of high pressure or steam cleaning devices is prohibited. 25. 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 -10- 14-19 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 Director may order the dimming of light sources or other remediation upon finding that the site is excessively illuminated. 26. 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: Between the hours of 7: Between the hours of 00 a.m. and 10: 00 p. 10: 00 p. m. and 7: 00 M. a. m. Measured at the property 65 dBA 60 dBA line of commercially zoned property: Measured at the property 55 dBA 50 dBA line of residentially zoned property: Measured in the interior of a 45 dBA 40 dBA residential structure: 27. Deleted 28. Deleted 29. 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. 30. 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. 31. Live entertainment shall be allowed in the interior of the eating and drinking establishment in conjunction with the operator obtaining and maintaining a live entertainment permit from the City. In conjunction with the approval of this Use Permit, the operator shall amend the existing live entertainment permit consistent with the conditions of approval and the authorized operational changes. 32. No outside paging system or loudspeaker device shall be used in conjunction with this establishment. -11- 14-20 33. No live entertainment shall be permitted in the outdoor dining area or any other outdoor area. Recorded music or other types of sound amplification within the outdoor areas shall only be audible to the audience within this area, and shall cease after the hour of 10:00 p.m. daily. 34. Dancing shall be allowed on the premises on Thursdays, Fridays, and Saturdays, as well as twelve (12) other nights throughout the year. The applicant/operator shall notify the City's Community Development Director, or his or her designee, in writing at least twenty-four (24) hours prior to allowing dancing for each of the twelve (12) other nights throughout the year. 35. The applicant/operator shall provide licensed security personnel while offering live entertainment and/or dancing. A comprehensive security plan for the permitted uses shall be submitted for review and 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. 36. 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. 37. 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. 38. 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). 39. Deliveries and refuse collection for the facility shall be prohibited between the hours of 10:00 p.m. and 8:00 a.m. the following morning, unless otherwise approved by the Community Development Director, and may require an amendment to this Use Permit. 40. 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. 41. No recreational vehicles, boats, food trucks, portable street kitchens or similar vehicles shall be stored at any time at the subject site. -12- 14-21 42. 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. 43. Kitchen 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. 44. All exits shall remain free of obstructions and available for ingress and egress at all times. 45. The occupancy load shall be set or established pursuant to Section 1004, et.seq., of the California Building Code. The determination should initially be made by the building official of the City of Newport Beach whose decision is appealable to the Building and Fire Board of Appeals in accordance with Chapter 15.80 of the Newport Beach Municipal Code. The decision of the Building and Fire Appeals Board is subject to judicial review pursuant to Code of Civil Procedure Section 1094.5. 46. The use of private (enclosed) "VIP" rooms or any other temporary or permanent enclosures separate from public areas are prohibited. 47. 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. 48. 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 only permitted after 10 p.m. on Thursday, Friday, and Saturday nights, as well as twelve (12) other nights throughout the year. Additionally, the applicant/operator may collect a door charge, cover charge, or any other form of admission charge, including minimum drink orders or sale of drinks only after 10 p.m. on Thursday, Friday, and Saturday nights, as well as twelve (12) other nights throughout the year. -13- 14-22 49. No alcoholic beverages shall be consumed on any property adjacent to the licensed premises under the control of the license. 50. Any "happy hour" type of reduced price alcoholic beverage promotion shall only be allowed in conjunction with food service. There shall be no reduced price alcoholic beverage promotion after 10:00 p.m. 51. Deleted 52. The licensee shall comply with the California Board of Alcoholic Beverage Control Requirements for a Type 47 alcoholic beverage control license, including, but not limited to, the service of food shall be the principal use of the facility. 53. No on-site radio, television, video, film or other media broadcasts from the establishment that includes the service of alcoholic 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. 54. All signs shall be in conformance with the provisions of Chapter 20.42 of the Newport Beach Municipal Code. 55. Applicant/operator shall comply with the City's sign code. 56. No games or contests requiring or involving the consumption of alcoholic beverages shall be permitted. 57. Deleted 58. Occupant Load shall be determined by the Chief Building Official, based upon the California Building Code and Newport Beach Municipal Code. 59. Deleted 60. Deleted 61. Deleted 62. Deleted 63. Deleted 64. To the fullest extent permitted by law, any operator exercising any rights under this permit shall indemnify, defend and hold harmless City, its City Council, its boards and commissions, officials, officers, employees, and agents from and -14- 14-23 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 subject restaurant facility (currently operating as Woody's Wharf Restaurant) including, but not limited to, the Use Permit No. 2011-010 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 operator, City, and/or the parties initiating or bringing such proceeding. The 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 operator shall pay to the City upon demand any amount owed to the City pursuant to the indemnification requirements prescribed in this condition. -15- 14-24 ATTACHMENT CC 2 Modified Conditions of Approval 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). Prior to implementation of the activities approved by this application, the applicant shall submit a revised floor plan for approval by the Community Development Director that reflects the limitations and restrictions imposed by the conditions of approval. 2. Conditional Use Permit No. UP2011-010 and Varian^^ Nn. "^'^" 009 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 of the restaurant shall be limited to between 9:3010-09 a.m., and 2:00 a.m., daily. The hours of the outdoor dining area are limited to 9:3019:08 a.m. and 11:00 p.m. daily, however, on Thursdays, Fridays and Saturdays, as well as twelve (12) other nights throughout the year, the closing hour may be extended to 2:00 a.m. The applicant/operator shall notify the City's Community Development Director, or his or her designee, in writing at least twenty-four(24) hours prior to extending the closing hour of the outdoor dining area for each of the twelve (12) other nights throughout the year. The easterly outdoor area, adjacent to the boat dock ramp, is permitted to be used by customers for smokinq, eating, and/or drinking on a daily basis until 8:00 p.m. The applicant/operator, including any future operator, shall secure and maintain an Operator License issued by the Chief of Police, pursuant to Chapter 5.25 of the NBMC. In no case shall the eating and drinking establishment be permitted to operate beyond the hour of 2:00 a.m., daily. 4. All doors and windows of the interior, including the pati^ ^^y•^; f the eating and drinking establishment shall remain closed whenever live entertainment occurs after 10:00 p.m., except for the ingress and egress of patrons and employees. Doors shall not be propped open, or remain open longer than necessary, to allow for the ingress and egress of patrons and employees. 5. The Operator License required to be obtained pursuant to Condition No. 3 and Chapter 5.25 ffw will be subject to ^-'dWep^' ^^^'r^-nqeFo FP'44rtivp rapd4'9^; the some conditions of approval in this Use Permit that are intended to regulate and control potential late-hour nuisances associated with the operation of the establishment. 6. Full meal service shall be provided,• however the closing time of the kitchen will be at the discretion of the applicant/operator. and^••^O^bk er erder ng until 10 ^ and an Gbbre ated cae6ing. 7. The outdoor dining area shall be used in conjunction with the eating and drinking establishment. 8. The outdoor dining area shall be limited to 709 square feet in area. 9. The outdoor dining area shall be limited to a maximum of 66 seats, including disabled seats/table space, consistent with the floor plans as approved by Plan Check set of plans PC 1141-2011. 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. Removal of dining tables and chairs shall be prohibited onb^tnR:.R,^^^^^ Sundays. Mondays, Tuesdays and t^Wednesdays. 10. All employees shall park on-site or in the municipal parking lots in the vicinity. 14-25 11. The net public area of the interior portion of the eating and drinking establishment shall not exceed 1,173 square feet and the outdoor dining area shall not exceed 709 square feet for a total of 1,882 square feet of net public area. 12. A minimum of 26 parking spaces shall be provided on -site and payment of in lieu parking fees for 10 spaces for the operation of the eating and drinking establishment. A total of 40 parking spaces shall be provided on-site and by payment of in lieu fees(annually for four parking spaces) for all hours of operation of the establishment(one parking space for each 40 square feet of net public area, 1,589 sq. ft.). Valet parking service shall be provided whenever live entertainment occurs and on an as-needed basis. 13. The applicant/operator shall conspicuously post and maintain signs at all outdoor dining, waiting, smoking and parking areas indicating to patrons the proximity of the restaurant and public dock and boat slip areas to the residential areas, requesting patrons; 'Be courteous and respectful of our residential neighbors while outside the establishment". 14. The project is subject to all applicable City ordinances, policies, and standards, unless specifically waived or modified by the conditions of approval. 15. 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. 16. 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. 17. 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. 18. This Conditional Use Permit shall run with the land; however, this Conditional Use Permit aad "tee 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. 19. Approval of Conditional Use Permit No. 2011-010 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. This condition is not intended to supersede any activity explicitly authorized in this Conditional Use Permit (e.g., dancing, consuming alcoholic beverages, etc.). 20. 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. 21. 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. 22. 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 adjustments, replacements, repairs, and cleaning as part of regular maintenance. 23. Water should not be used to clean paved surfaces such as sidewalks, driveways, parking areas, etc. except to alleviate immediate safety or sanitation hazards. 14-26 24. The washing of the outdoor dining patio or any other outdoor area with any cleaning solutions or the use of high pressure or steam cleaning devices is prohibited. 25. 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 Director may order the dimming of light sources or other remediation upon finding that the site is excessively illuminated. 26. 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: Between the hours of 7:00 Between the hours of 10: 00 a.m. and 10: 00 p. m. p. m. and 7: 00 a. m. Measured at the property line of 65 dBA 60 dBA commercially zoned property: Measured at the property line of 55 dBA 50 dBA residentially zoned property: Measured in the interior of a 45 dBA 40 dBA residential structure: 27. Prier t,. issuGnce L#building permits, the � .,..t.,...«:.... ..1...... 9nd..get,,Fial.. F...the .. ..,,,.I ati,. 4hG11 ti„ reviewed by G . ticGl engineer retGined by the r:t., to .verify the potential to mitigGte the n - h„PIG 28. P4eF tt9 ceFt ficGte 4 occupapi;y Fee u 4 the e&tdee Gtie H,..,end 4149 .. Gn Grolog6pq pFeperty lines qd Ot the r 9idP...ti,.lI F9Pg iq the vicinity to verify C ..4GRCe With the G , 4CGb le 29. 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. 30. 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. 31. Live entertainment shall be allowed in the interior of the eating and drinking establishment in conjunction with the operator obtaining and maintaining a live entertainment permit from the City. In conjunction with the approval of this use-Use Permit the operator shall amend the existing live entertainment permit consistent with the conditions of approval and the authorized operational changes. 32. No outside paging system or loudspeaker device shall be used in conjunction with this establishment. 33. No live entertainment shall be permitted in the outdoor dining area or any other outdoor area. Recorded music or other types of sound amplification within the outdoor dh4ng-areas shall only be audible to the audience within this area, and shall cease after the hour of 10:00 p.m. daily. 34. Dancing shall be allowed on the premises on Thursdays, Fridays, and Saturdays, as well as twelve (12) other nights throughout the year.F. ^^-z on , in ^junco,. ,,,Ita the issuonce ,.F , cglf„ Dance permit by the C4),A49n,yer er designee, rF......lice1.1,. The applicantloperotor shall notl(y 14-27 the City's Community Development Director, or his or her designee, in writing at least twenty- four(24)hours prior to allowing dancing for each of the twelve (12) other nights throughout the year. 35. The applicant/operator shall provide licensed security personnel while offering live entertainment and/or dancing. A comprehensive security plan for the permitted uses shall be submitted for review and 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. 36. 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. 37. 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. 38. 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). 39. Deliveries and refuse collection for the facility shall be prohibited between the hours of 10:00 p.m. and 8:00 a.m. the following morning, unless otherwise approved by the Community Development Director, and may require an amendment to this Use Permit. 40. 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. 41. No recreational vehicles, boats, food trucks, portable street kitchens or similar vehicles shall be stored at any time at the subject site. 42. 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. 43. Kitchen 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. 44. All exits shall remain free of obstructions and available for ingress and egress at all times. 45. The occupancy load shall be set or established pursuant to Section 1004, et.sep., of the California Building Code. The determination should initially be made by the building official of the City of Newport Beach whose decision is appealable to the Building and Fire Board of Appeals in accordance with Chapter 15.80 of the Newport Beach Municipal Code. The decision of the Building and fire Appeals Board is subject to judicial review pursuant to Code of Civil Procedure Section 1094.5. 46. The use of private (enclosed) "VIP" rooms or any other temporary or permanent enclosures separate from public areas are prohibited. 47. 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 14-28 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. 48. 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 PFGhihite4 only permitted after 10 p.m. on Thursday. Friday, and Saturday nights, as well as twelve (12) other nights throughout the year. Additionally, the applicant/operator may collect a door charge, cover charge, or any other form of admission charge, including minimum drink orders or sale of drinks only after 10 p.m. on Thursday, Friday, and Saturday nights, as well as twelve (12) other nights throughout the year. 49. No alcoholic beverages shall be consumed on any property adjacent to the licensed premises under the control of the license. 50. ADy_Na"happy hour" type of reduced price alcoholic beverage promotion shall only be allowed exeept in conjunction with food service. AVA"AhIP f-^^• the f •" g^^o'^^ mpRu. There shall be no reduced price alcoholic beverage promotion after 10:00 p.m. 51. "nni^i...••,., d.i. k AFde aFe .Mbit.. 52. The .. ^.teFl., gF9SS ^Ipq ^f Alrphplir beye.^^^s shall net a ed the gF9SS aipg of fgpd ;4nd FPt^il 4^I^S d.•.i^^ the same ^^.iad The licensee shall comply with the California Board of Alcoholic Beverage Control Requirements for a Type 47 alcoholic beverage control license, including, but not limited to, the service of food shall be the principal use of the facility.WA^ ,g .t Pf the lippRqed Said FPGAFGs shall be I(ePt R9 less fFequeRtly than OR a quarteFly basis 53. No on-site radio, television, video, film or other media broadcasts from the establishment that includes the service of alcoholic 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. 54. All signs shall be in conformance with the provisions of Chapter 20.42 of the Newport Beach Municipal Code. 55. Applicant/operator shall comply with the City's sign coder'-^-^ `hall be ^^ exteFier ^d••^-t,.,..^ OF SigHS Of aRY I.i..d eF type ipeludiRg adyeFtisiAg diFPetP;I t.. the ..)AeFiBF f....... Within, pFemeting 9 indiGating the availability of alnehelin L...V@Fages lRteFiGF &Fla.'s of alnehelin beverages eF signs that aFe eleaFly visible ta the exteFiOF shall eanstitute a violatien ef this CQnd'ti. 56. No games or contests requiring or involving the consumption of alcoholic beverages shall be permitted. 57. 58. Occupant Load shall be.FPoiRtniRPd of ,LA ^,.,.••^^^t, tetGl fee^ll ^ g determined by the Chief Building Official, based upon the California Building Code and Newport Beach Municipal Code. 59. ra^ 60. per,994s shag be required figr the iRstalletien ef Ave awnings. AwRings shall Rgeet Me 14-29 61. .,d m•^ i^^a5^ ted w., gu4diny i-^.,^ C4;G t@r 21 Section=34954. 62. Canepies shall be PAR9tFIIPtPd with an appFeved GaveFing that FReets the fire prepagat C OA ...III 772 as eF Q Q 11 See 2109 A 63. 64. To the fullest extent permitted by law, ate'" operator exercising any rights under this permit 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 subject restaurant facility ( currently operating as Woody's Wharf Restaurant) including, but not limited to, the Use Permit No. 2011 -010 and "^•'^^^^ ^'^ VA=92 906. 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 ap operator, City, and /or the parties initiating or bringing such proceeding. The '"""^^^'/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 !operator shall pay to the City upon demand any amount owed to the City pursuant to the indemnification requirements prescribed in this condition. 14-30 Attachment No. CC 3 Planning Commission Resolution 1988 (Current Use Permit) 14-31 RESOLUTION NO. 1922 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH APPROVING CONDITIONAL USE PERMIT NO. UP2011-010 AND VARIANCE NO. VA2013-006 TO MODIFY VALET SERVICE, OPENING HOURS, CLOSING HOUR OF THE OUTDOOR DINING AREA, WAIVER OF SIX PARKING SPACES, ALLOW A PATIO COVER TO ENCROACH INTO THE BULKHEAD SETBACK, A CHANGE TO OUTDOOR SEATING PLAN AND THE ADDITION OF PATRON DANCING; AND SUPERSEDING USE PERMIT NO. 3065 AND OUTDOOR DINING PERMIT NO. 1 AT AN EATING AND DRINKING ESTABLISHMENT LOCATED AT 2318 NEWPORT BOULEVARD (PA2011-055). THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS FOLLOWS: SECTION 1. STATEMENT OF FACTS. 1. An application was filed by Martin Potts on behalf of the Woody's Wharf Restaurant, with respect to the property located at 2318 Newport Boulevard, and legally described as Lots 6, 7, and 8, Section A Newport Beach, Block 223, requesting to amend the existing use permit to change the operational characteristics of an existing restaurant. 2. An application requesting the following changes in the operational characteristics of the existing restaurant: 1) to extend the opening hour from 11:00 a.m. to 10:00 a.m., daily; extend the closing hour of the existing outdoor dining area from 11:00 p.m. to 2:00 a.m., daily; 2) to accommodate patron dancing in the interior of the restaurant, nightly; 3) to amend the requirement for full-time valet parking service during restaurant operating hours, to only require valet services on an as-needed basis (to accommodate special events and holiday peak use); and 4) to approve a waiver of up to 6 parking spaces that results from the addition of patron dancing and eliminating valet parking service on a full time basis. The application will also eliminate conditions of approval that are duplicative and/or otherwise outdated, as requested by the applicant. 3. On July 11, 2013 an application was submitted to request a variance to construct a patio cover on the existing patio which would encroach into the bulkhead setback. 4. The subject property is located within the Mixed Use — Water Related Zoning District (MU- W2) and the General Plan Land Use Element category is also Mixed Use — Water Related District (MU-W2). 5. The subject property is located within the coastal zone. The Coastal Land Use Plan category is Mixed Use—Water Related District (MU-W). 6. The construction of the patio cover will reduce the noise levels generated by patrons utilizing the outdoor patio, as documented by separate noise studies developed by the applicant and the City. 14-32 Planning Commission Resolution No. 1922 Conditional Use Permit No. UP2011-010 and Variance No. VA2013-006 Page 2 of 16 7. Removal of tables and chairs on the outdoor patio, as proposed, will not result in increased noise levels provided the occupancy level of the patio is not increased. 8. The current parking requirement is one (1) parking space for every 40 square feet of net public area. The net public area proposed is 1,589 square feet; therefore the parking requirement is 40 spaces. There are 26 spaces on-site (with 6 tandem spaces available only with the valet parking service) and 10 spaces annual in-lieu spaces, and a credit of 4 spaces for the boat docks is granted, for a total 40 parking spaces allocated to the use. 9. The removal of tables and chairs within the main dining room to accommodate patron dancing will result in a change in operational characteristics of the restaurant but because live entertainment is already permitted, dancing will not generate additional noise in the surrounding area. 10. In accordance with the Newport Beach Municipal Code, on November 8, 2012 the Planning Commission conducted a public hearing and approved: 1) extending the opening hour of the restaurant and outdoor dining area from 11:00 a.m. to 10:00 a.m., daily; 2) extending the closing hour of the outdoor dining area from 11:00 p.m. to Midnight on Friday and Saturday nights; 3) the use of the valet parking on an as-needed basis; and 4) waiver of a portion of the required parking. The portion of the application that was denied included: 1) the introduction of patron dancing within the interior of the restaurant; 2) removing tables and chairs within the outdoor dining area; and 3) extending the closing hour of the outdoor dining area from 11:00 p.m. to 2:00 a.m. from Sunday to Thursday. 11. On November 26, 2012, the project applicant filed an application and letter of justification appealing the Planning Commission's decision. The City Council considered the appeal at a public hearing on March 12, 2013 and requested the Planning Commission reconsider the item on the basis that the applicant modified the application following the Planning Commission's decision. 12. A public hearing before the Planning Commission was held on September 5, 2013, in the City Hall Council Chambers, 100 Civic Center Drive, Newport Beach, California. A notice of time, place and purpose of the meeting was given in accordance with the Newport Beach Municipal Code (NBMC). Following consideration of all evidence, both written and oral, the Planning Commission at this meeting approved: 1) extending the opening hour of the restaurant and outdoor dining area from 11:00 a.m. to 10:00 a.m., daily; 2) extending the closing hour of the outdoor dining area from 11:00 p.m. to 2:00 a.m. on Friday and Saturday nights; 3) the introduction of patron dancing within the interior of the restaurant on Friday and Saturday nights; 4) removing tables and chairs within the outdoor dining area on Friday and Saturday nights; 5) the use of the valet parking on an as-needed basis; and 6) waiver of a portion of the required parking. SECTION 2. CALIFORNIA ENVIRONMENTAL QUALITYACT DETERMINATION. 1. This project has been determined to be categorically exempt under the requirements of the California Environmental Quality Act under Class 1- Existing Facilities. 14-33 Planning Commission Resolution No. 1922 Conditional Use Permit No. UP2011-010 and Variance No. VA2013-006 Page 3 of 16 2. This exemption applies to existing facilities where it can be demonstrated the project involves negligible or no expansion of the existing use. The change in hours of operation or addition of patron dancing does not involve an expansion or intensification of the existing use. Additionally, the change in the provision of valet parking services on an as- needed basis is consistent with the previous restaurant operations prior to acquisition by the current applicant. SECTION 3. REQUIRED FINDINGS — USE PERMIT. In accordance with Sections 20.48.030 (Alcohol Sales) and 20.52.020 (Conditional Use Permit) of the Newport Beach Municipal Code, the following finding and facts in support of such finding is set forth: 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 operator, as well as any future operators, is has been conditioned to require that the applicant, as well as any future operators, to obtain an Operator License to ensure the establishment is operated in a safe manner and compatible with the neighborhood. A-3. The subject property is located within a mixed use district developed primarily with commercial uses. Across the Rhine Channel, the closest residential district is approximately 570 feet away. To the north, the closest residential use is approximately 200 feet away and residential uses associated with the future South Coast Shipyard Project will be approximately 100 feet away. To the west, the nearest residential uses are 230 feet away; and to the north the nearest residential uses are approximately 200 feet away. The nearest park is the public beach adjacent to the West Ocean Front Boardwalk over 650 feet from the subject property. There are no day care centers, recreation facilities, places of religious assembly, or schools in close proximity to the subject property. In accordance with Section 20.52.020 of the Zoning Code, eating and drinking establishments classified as "Food Service, Late Hours" require the approval of a conditional use permit within the Mixed-Use Water Related (MU-W2) 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: 14-34 Planning Commission Resolution No. 1922 Conditional Use Permit No. UP2011-010 and Variance No. VA2013-006 Page 4 of 16 Finding: B. The use is consistent with the General Plan and any applicable specific plan. Facts in Support of Finding: B-1. The Mixed-Use Water Related (MU-W2 and MU-W) land use designations of the General Plan and Coastal Land Use Plan are intended to encourage water related uses intermixed with general commercial, visitor-serving commercial and residential 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. Facts in Support of Finding: C-1. The subject property is located in the Mixed Use — Water Related Zoning District (MU-W2), 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 Newport Beach Police Department (NBPD) in order to maintain operating hours beyond 11 :00 p.m., to add dancing and to modify operations, as proposed. C-4. As conditioned, the proposed patio cover shall be constructed in accordance with the submitted plans and tested to confirm the expected noise reduction is provided prior to use of the outdoor patio beyond 11 :00 p.m. C-5. As conditioned, the applicant shall obtain a Cafe Dance Permit from the Newport Beach Revenue Division in order to allow patron dancing on-site. 14-35 Planning Commission Resolution No. 1922 Conditional Use Permit No. UP2011-010 and Variance No. VA2013-006 Page 5 of 16 Finding: D. The design, location, size, and operating characteristics of the use are compatible with the allowed uses in the vicinity. Facts in Support of Findinq: 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. As conditioned, the approved seating plan shall be maintained on the basis that the removal of table and chairs from the outdoor dining area increases the number of patrons in this area and likely to result in increased noise levels that will adversely impact nearby properties and residential occupants. D-3. The dancing activities are anticipated to result in an increase in the number patrons entering and exiting the building and thereby exposing the increased noise levels of the interior and the noise generated by the live entertainment and/or dancing to the surrounding area. D-4. The existing outdoor dining patio is surrounded by glass walls which aid to minimize noise from emanating from this area, but are not adequately effective in controlling noise as evidence by noise complaints received by the Police Department and the correspondence received. D-5. The effectiveness of the proposed a patio cover has been evaluated by two acoustical engineers who indicate it will significantly reduce the noise levels from the patio area. D-6. Construction of the proposed patio cover will significantly reduce noise from the patio area to levels well below the Noise Ordinance criteria at the existing mixed use residences to the north and the future residences to the south. Therefore, extending the closing hour to 2:00 a.m. will not adversely impact nearby properties and residential occupants into the late night hours, and is a compatible activity for the neighborhood. D-7. In order to further reduce the potential impact on neighboring properties, a condition of approval is required to prohibit recorded music or other types of sound amplification within the outdoor dining area at all times. Additionally, conditions of approval require the doors exiting the building to the outdoor dining area to remain closed whenever live entertainment is performed inside the building, except in the case when persons are entering and exiting the building. D-8. 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. D-9. Adequate number of parking spaces are available on-site and the valet parking service serving the nighttime operation will prevent traffic backing up onto Newport Boulevard. The 14-36 I Planning Commission Resolution No. 1922 Conditional Use Permit No. UP2011-010 and Variance No. VA2013-006 Page 6 of 16 waiver of a portion of the on-site parking caused by the elimination of the valet parking service during daytime hours of the operation is offset by the lower parking demand for the use based upon on-site observations and the availability of the municipal parking lots in the vicinity. The use of the valet parking service when live entertainment occurs and on an as- needed basis in the evening will maximize on-site utilization of the parking lot and in the case that the lot is full, parking is available in the municipal metered parking lot across the street (the meters are not in effect after 6:00 p.m. daily). Therefore, the waiver of 6 parking spaces for the daytime and nighttime operational periods as proposed is reasonable in this particular case. 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. Facts in Support of Finding: E-1. This is an eating and drinking establishment that has existed in this location since the 1960's. The project site has proven to be physically suitable in size to accommodate the restaurant use. E-2. The project site is located on Newport Bay between 24th and 26th Street overlooking the Rhine Channel and is surrounded by similar commercial uses located to the north (next door), and the northwest of the use. This is an appropriate location for an eating and drinking establishment. The restaurant use is complementary to the existing commercial uses in the area, as well as convenient to serve the residential uses located to the north and east across the Rhine Channel in relation to 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 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 appropriately conditioned to ensure the continued operation of the existing eating and drinking establishment as a restaurant, and not as a bar/nightclub, will not be detrimental to the community. 14-37 Planning Commission Resolution No. 1922 Conditional Use Permit No. UP2011-010 and Variance No. VA2013-006 Pape 7 of 16 F-2. The proposed patio cover will significant reduce noise levels from the patio area and will remain within the Noise Ordinance criteria. Since the applicant has presented a physical barriers to mitigate existing or anticipated increase in noise levels associated with late night hours, an extension of the outdoor patio hours to 2:00 a.m. and the introduction of patron dancing is justiifed. F-3. The applicant has operated the existing eating and drinking establishment in this location since 2002, and is required to proactively control noise generated by patrons of the restaurant. The operator will be required to obtain an Operator License from the NBPD in order to accommodate the proposed closing hour beyond 11:00 p.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. SECTION 4. REQUIRED FINDINGS — VARIANCE. In accordance with Section 20.52.090 (Variance) of the Newport Beach Municipal Code, the following finding and facts in support of such finding is set forth: Finding: A. There are special or unique circumstances or conditions applicable to the subject property (e.g., location, shape, size, surroundings, topography, or other physical features) that do not apply generally to other properties in the vicinity under an identical zoning classification. Facts in Support of Finding: A-1. The location of the subject property is unique in that it is located on the bay where a bulkhead exists. The patio cover is proposed to mitigate noise generated on an existing patio which encroaches into the 10-foot bulkhead setback. Covering the patio to implement the desired mitigation necessitates an encroachment into the bulkhead setback. Finding: B. Strict compliance with Zoning Code requirements would deprive the subject property of privileges enjoyed by other properties in the vicinity and under an identical zoning classification. Facts in Support of Finding: B-1. Two parcels located north of the subject property are also constructed at the bulkhead. American Junkie, located immediately to the north, also has an outdoor patio located at or beyond the bulkhead line which is not covered. 14-38 Planning Commission Resolution No. 1922 Conditional Use Permit No. UP2011-010 and Variance No. VA2013-006 Page 8 of 16 Finding: C. Granting of the Variance is necessary for the preservation and enjoyment of substantial property rights of the applicant. Facts in Support of Finding: C-1. The applicant seeks to construct a patio cover to mitigate noise generated by the use of an existing outdoor patio. Allowing the cover to be constructed within the setback area is anticipated to reduce noise complaints and allow the patio area to be used until 2:00 a.m., daily. Without the patio cover in place, the outdoor area will be restricted to 11:00 p.m., daily. Finding: D. Granting of the Variance will not constitute a grant of special privilege inconsistent with the limitations on other properties in the vicinity and in the same zoning district. D-1. Two parcels located north of the subject property are also constructed at the bulkhead. American Junkie, located immediately to the north, also has an outdoor patio located at or beyond the bulkhead line which is not covered. Facts in Support of Finding: Finding: E. Granting of the Variance will not be detrimental to the harmonious and orderly growth of j 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. E-1. Two parcels located north of the subject property are also constructed at the bulkhead. American Junkie, located immediately to the north, also has an outdoor patio located at or beyond the bulkhead line which is not covered. Facts in Support of Finding: Finding: F. Granting of the Variance will not be in conflict with the intent and purpose of this Section, this Zoning Code, the General Plan, or any applicable specific plan, Facts in Support of Finding: F-1. The encroachment would allow for a patio cover to encroach into the bulkhead setback. The patio cover is an accessory structure which will not extend the useful life of the primary structure. 14-39 Planning Commission Resolution No. 1922 Conditional Use Permit No. UP2011-010 and Variance No. VA2013-006 Page 9 of 16 SECTION 5. DECISION. NOW, THEREFORE, BE IT RESOLVED: 1. The Planning Commission of the City of Newport Beach hereby approves Use Permit No. UP2011-010 and Variance No. VA2013-006, to 1) extend the opening hour of the restaurant and outdoor dining area from 11:00 a.m. to 10:00 a.m., daily; 2) extend the closing hour of the outdoor dining area from 11:00 p.m. to 2:00 a.m. on Friday and Saturday nights; 3) introduce patron dancing within the interior of the restaurant on Friday and Saturday nights; 4) remove tables and chairs within the outdoor dining area on Friday and Saturday nights; 5) use of the valet parking on an as-needed basis; and 6) waiver of a portion of the required parking 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. 3. This resolution supersedes Use Permit No. 3065, 3065 (amended); and Outdoor Dining Permit No. 1, which upon vesting of the rights authorized by this Conditional Use Permit No. UP2011-010 and Variance No. VA 2013-006 shall become null and void. PASSED, APPROVED AND ADOPTED THIS 5eh DAY OF SEPTEMBER, 2013. AYES: Ameri, Brown, Hillgren, Kramer, and Lawler NOES: Myers and Tucker ABSTAIN: None ABSENT: None BY: / ren, Chairman BY: Kory <ra cret ry 7 14-40 Planning Commission Resolution No. 1922 Conditional Use Permit No. UP2011-010 and Variance No. VA2013-006 Page 10 of 16 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). Prior to implementation of the activities approved by this application, the applicant shall submit a revised floor plan for approval by the Community Development Director that reflects the limitations and restrictions imposed by the conditions of approval. 2. Conditional Use Permit No. UP2011-010 and Variance No. VA2013-006 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 of the restaurant shall be limited to between 10:00 a.m, and 2:00 a.m., daily. The hours of the outdoor dining area are limited to 10:00 a.m. and 11:00 p.m. daily, however, Friday and Saturdays closing may be extended to 2:00 a.m. The applicant/operator, including any future operator, shall secure and maintain an Operator License issued by the Chief of Police, pursuant to Chapter 5.25 of the NBMC. In no case shall the eating and drinking establishment be permitted to operate beyond the hour of 2:00 a.m., daily. 4. All doors and windows of the interior, including the patio cover, of the eating and drinking establishment shall remain closed whenever live entertainment occurs after 10:00 p.m., except for the ingress and egress of patrons and employees. Doors shall not be propped open, or remain open longer than necessary, to allow for the ingress and egress of patrons and employees. 5. 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. 6. Full meal service shall be provided and available for ordering until 10 p.m. and an abbreviated menu that includes heavy appetizers after 10 p.m. daily and serving until a half- hour before closing. 7. 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 outdoor dining area. 8. The outdoor dining area shall be limited to 709 square feet in area. 14-41 Planning Commission Resolution No. 1922 Conditional Use Permit No. UP2011-010 and Variance No. VA2013-006 Page 11 of 16 9. The outdoor dining area shall be limited to a maximum of 66 seats, including disabled seats/table space, consistent with the floor plans as approved by Plan Check set of plans PC 1141-2011. 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. Removal of dining tables and chairs shall be prohibited between Sunday to Thursday. 10. All employees shall park on-site or in the municipal parking lots in the vicinity. 11. The net public area of the interior portion of the eating and drinking establishment shall not exceed 1,173 square feet and the outdoor dining area shall not exceed 709 square feet for a total of 1,882 square feet of net public area. 12. A minimum of 26 parking spaces shall be provided on-site and payment of in lieu parking fees for 10 spaces for the operation of the eating and drinking establishment. A total of 40 parking spaces shall be provided on-site and by payment of in lieu fees (annually for four parking spaces) for all hours of operation of the establishment (one parking space for each 40 square feet of net public area, 1,589 sq. ft.). Valet parking service shall be provided whenever live entertainment occurs and on an as-needed basis. 13. The applicant/operator shall conspicuously post and maintain signs at all outdoor dining, waiting, smoking and parking areas indicating to patrons the proximity of the restaurant and public dock and boat slip areas to the residential areas, requesting patrons: `Be courteous and respectful of our residential neighbors while outside the establishment". 14. The project is subject to all applicable City ordinances, policies, and standards, unless specifically waived or modified by the conditions of approval. 15. 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. 16. The applicantloperator shall maintain a copy of themost 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. 17. 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. 18. This Conditional Use Permit and Variance 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. 19. Approval of Conditional Use Permit No. 2011-010 is for the operation of an eating and drinking establishment defined as "Food Service, Late Hours" per Title 20 of the NBMC, 14-42 I Planning Commission Resolution No. 1922 Conditional Use Permit No. UP2011-010 and Variance No. VA2013-006 Page 12 of 16 and does not permit or authorize the use or operation of a bar, tavern, cocktail lounge, nightclub or commercial recreational entertainment venue. 20. 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. 21. 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. 22. 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 adjustments, replacements, repairs, and cleaning as part of regular maintenance. 23. Water should not be used to clean paved surfaces such as sidewalks, driveways, parking areas, etc. except to alleviate immediate safety or sanitation hazards. 24. The washing of the outdoor dining patio with any cleaning solutions or the use of high pressure or steam cleaning devices is prohibited. 25. 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 Director may order the dimming of light sources or other remediation upon finding that the site is excessively illuminated. 26. 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: 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 14-43 Planning Commission Resolution No. 1922 Conditional Use Permit No. UP2011-010 and Variance No. VA2013-006 Page 13 of 16 residential structure 27. Prior to issuance of building permits, the construction plans and materials for the proposed patio cover shall be reviewed by an acoustical engineer retained by the City to verify the potential to mitigate the noise levels. 28. Prior to certificate of occupancy for use of the outdoor patio beyond 11:00 p.m., an acoustical engineer retained by the City shall conduct noise measurements around the enclosure, at the property lines, and at the residential uses in the vicinity to verify compliance with the applicable noise control requirements of the Newport Beach Municipal Code. 29. 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. 30. 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. 31. Live entertainment shall be allowed in the interior of the eating and drinking establishment in conjunction with the operator obtaining and maintaining a live entertainment permit from the City. In conjunction with the approval of this use permit, the operator shall amend the existing live entertainment permit consistent with the conditions of approval and the authorized operational changes. 32. No outside paging system or loudspeaker device shall be used in conjunction with this establishment. 33. No live entertainment shall be permitted in the outdoor dining area. Recorded music or other types of sound amplification within the outdoor dining area shall only be audible to the audience within this area, and shall cease after the hour of 10:00 p.m. daily. 34. Dancing shall be allowed on the premises only in conjunction with the issuance of a Cafe Dance permit by the City Manager or designee, if applicable. 35. The applicant/operator 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 (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. 36. 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. 37. 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. 14-44 Planning Commission Resolution No. 1922 Conditional Use Permit No. UP2011-010 and Variance No. VA2013-006 Page 14 of 16 38. 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). 39. Deliveries and refuse collection for the facility shall be prohibited between the hours of 10:00 p.m. and 8:00 a.m. the following morning, unless otherwise approved by the Community Development Director, and may require an amendment to this Use Permit. 40. 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. 41. No recreational vehicles, boats, food trucks, portable street kitchens or similar vehicles shall be stored at any time at the subject site. 42. 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. 43. Kitchen 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. 44. All exits shall remain free of obstructions and available for ingress and egress at all times. 45. Strict adherence to maximum occupancy limits is required. 46. The use of private (enclosed) "VIP" rooms or any other temporary or permanent enclosures separate from public areas are prohibited. 47. 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. 48. 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 14-45 Planning Commission Resolution No. 1922 Conditional Use Permit No. UP2011-010 and Variance No. VA2013-006 Page 15 of 16 charge, cover charge or any other form of admission charge, including minimum drink orders or sale of drinks is prohibited. 49. No alcoholic beverages shall be consumed on any property adjacent to the licensed premises under the control of the license. 50. 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 10:00 p.m. 51. "Minimum drink orders are prohibited. 52. 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. 53. No on-site radio, television, video, film or other media broadcasts from the establishment that includes the service of alcoholic 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. 54. All signs shall be in conformance with the provisions of Chapter 20.42 of the Newport Beach Municipal Code. 55. 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. 56. No games or contests requiring or involving the consumption of alcoholic beverages shall be permitted. 57. A modification is required to be filed with the Building Division, for compliance to Section 705.11 of the California Building Code. 58. Occupant Load shall be maintained at 164 Occupants total for all areas. 59. Accessibility upgrades shall be required pursuant to Section 1134.2.1 of the California Building Code. 60. Submit architectural and structural plans and calculations for plan review. Two (2) building permits shall be required for the installation of two awnings. Awnings shall meet the requirement for Class A roofing. 14-46 I Planning Commission Resolution No. 1922 Conditional Use Permit No. UP2011-010 and Variance No. VA2013-006 Page 16 of 16 61. Awnings and canopies shall be designed and constructed to withstand wind or other lateral loads and live loads as required by California Building Code Chapter 31 Section 3105.3. 62. Canopies shall be constructed with an approved covering that meets the fire propagation performance criteria of NFPA 701 or has a flame spread index not greater than 25 when tested in accordance with ASTM E 84 or UL 723 as per C.B.0 Sec. 3105.4. 63. Occupant load and seating arrangement under new exterior awning area must meet California Building Code Chapter 10. These items will be reviewed at the time of plan check. 64. 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 subject restaurant facility (currently operating as Woody's Wharf Restaurant) including, but not limited to, the Use Permit No. 2011-010 and Variance No. VA2013-006. 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. 14-47 Attachment No. CC 4 Live Entertainment Permit, Woody's Wharf Restaurant 14-48 ACvEWP0 . o CITY OF NEWPORT BEACH ADMINISTRATIVE SERVICES Revenue Division Greg&Chris Pappas March 14, 2006 Woody's Wharf 2318 Newport Blvd Newport Beach, CA 92663 PERMIT TO CONDUCT LIVE ENTEI2TAINMENT The City of Newport Beach does hereby authorize live entertainment activities to be conducted at Woody's Wharf, 2318 Newport Blvd, Newport Beach, 92663 and must be posted at the location. This permit is issued to Greg & Chris Pappas and is not transferable to another location or individual. The approval of this permit is contingent on the compliance with the regulations for operation as defined by Newport Beach Municipal Code Section 5.28.041 and the following specific conditions: 1) The live entertainment and sound from it shall be limited and confined to the interior of the structure. 2) The outside deck may not be utilized after I1:00pm due to the confinement of live entertaimnent. 3) Dancing is prohibited. 4) Live entertainment shall be limited to no more than four musicians. 5) Comply with all conditions of the Use Permit. This permit may be revoked for any of the following reasons: 1) Failure to comply with the above stated conditions, 2) The permitee has ceased to meet the requirements for issuance of the permit, 2) The establishment has been operated in an illegal or disorderly manner or in violation of any of the regulations set forth in Section 5.28.04. 3) Music or noise from the establishment for which the permit was issued interferes with the peace and quietness-of the neighborhood. 4) The permittee or any person associated with him as principal or partner, or in a position or capacity involving total or partial control over the establishment for which this permit is issued, has been convicted of a criminal offense involving moral turpitude. C t / l Approved by: �— \ Date: Permit Conditions Acknowledged by _Dater. c �ity_Nlanage �. r Iolrce Department ' 3300 Newport. Boulevard • Post Office Box 1768 • Newport Beach, California 92658-891.5 Telephone: (949) 644-3141 • rax: (949) 644-3073 - www,city.newport:-beach.ca.us 14-49 Attachment No. CC 5 Noise Study (January 2013) 14-50 Noose Measurement Survey For WOODYFS WHARF CITY OF NEWPORT BEACH Prepared AFor: P)A,, Enc. 4041 MacArthur Blvd., Suite 490 Newport Beach, CA 92660 Submitted By: Mestre Greve Associates DivWon of Landrum & Brown Fred Greve P.E. 27812 EI Lazo Road Laguna Niguel, CA 92677 949m349m0671 January 8, 2013 Project #539001 14-51 Mestre Greve Associates Woody's Wharf Division of Landrum & Brown Page i TaWe Of (Contents 1 .0 EXISTING SETTING.............................................................................. 1 1. 1 Project Description................................................................................ 1 1.2 Background Information on Noise......................................................... 1 1.2.1 Noise Criteria Bacl<ground ................................................................1 1.3 Noise Criteria ........................................................................................ 5 1.4 Noise Measurements............................................................................ 6 1.5 Summary and Conclusions................................................................... 9 List ®f Tables Table 1 City Of Newport Beach Noise Ordinance Standards ........................................6 Table 2 Event Noise Measurements (dBA)....................................................................7 Lust ®f Exhibits Exhibit 1 Measurement Sites ...........................................................................................2 Exhibit 2 Typical A-Weighted Noise Levels .....................................................................4 14-52 Mestre Greve Associates Woody's Wharf Division of Landrum & Brown Page 1 i .® EXISTING SETTING 1.1 Project Description Woody's Wharf is a restaurant and bar located at 2318 Newport Boulevard in the City of Newport Beach (Exhibit 1). Live DJ music is played inside in the bar on Thursday, Friday; and Saturday nights. The bar room is open to an outside patio area via doors that are usually open, but remain closed after 10:00 p.m. other than when customers and employees are entering and exiting. The outside area is surrounded by a glass barrier approximately 6 feet high. The outside patio area is also covered for part of the year with a canvas canopy. The restaurant has a parking lot in the front of the building which contains a valet parking operation on the DJ music nights and at other times when peak demand warrant the valet. The restaurant also has boat docks in the front of the restaurant. This dock area is monitored by restaurant personnel and patrons are not allowed to hangout on the docks after 10 p.m. Guests with boats are permitted to dock their boats and enter the restaurant, but not to stay on their boats after 10 p.m. Outside on the south side of the restaurant is small smoking area where patrons can gather. Another restaurant/bar is located directly north of Woody's Wharf called the Commonwealth. This restaurant also has music. Other sources of noise in the area are other restaurant operations, traffic on Newport Boulevard, traffic of more distant roadways, boats traveling up and down the channel in front of Woody's Wharf, people staying on boats docked in the area, aircraft, and police helicopters. Complaints have been voiced regarding noise potentially from Woody's Wharf. The purpose of this study is to document the noise in the area and determine the contribution of Woody's Wharf to the overall noise levels experienced in the area. The focus of the monitoring is the mixed-use development to the north (refer to Exhibit 1). The second and third floors of the mixed-use development are residences, which are the source of the noise complaints. The Commonwealth, a single-family residence, and a small shipyard are located between the residences and Woody's Wharf. Noise measurements were taken at six sites on Friday, December 21 , 2012. The sites measured are shown on Exhibit 1 . Woody's Wharf was in full operation during the measurements with a capacity crowd. This report presents the methodology and results of the noise measurement survey. Noise levels are contrasted and compared to the City's Noise Ordinance. 1.2 Background Bnformation on Noise 1.2.9 Noise Criteria Background Sound is technically described in terms of the loudness (amplitude) of the sound and frequency (pitch) of the sound. The standard unit of measurement of the loudness of sound is the decibel (dB). Decibels are based on the logarithmic scale. The logarithmic scale compresses the wide range in sound pressure levels to a more usable range of numbers in a manner similar to the Richter scale used to measure earthquakes. In terms of human response to noise, a sound '1.0 dB higher than another is judged to be twice as loud; and 20 dB higher four times as loud; and so forth. Everyday sounds normally range from 30 dB (very quiet) to 100 dB (very loud). 14-53 Ali ✓ yy V� / .��d r ti. �C^ Lw cl 1 t_ M&4 �jµµ++� � r �uV6r.�1 V1 id - e •A •;1� C 1 Exhibit 1 Meslre GreveAss•aciales• Messurement Sites 14-54 Mestre Greve Associates Woody's Wharf Division of Landrum & Brown Page 3 Since the human ear is not equally sensitive to sound at all frequencies, a special 'frequency- dependent rating scale has been devised to relate noise to human sensitivity. The A-weighted decibel scale (dBA) performs this compensation by discriminating against frequencies in a manner approximating the sensitivity of, the human ear. Community noise levels are measured in terms of the "A-weighted decibel," abbreviated dBA. Exhibit 2 provides examples of various noises and their typical A-weighted noise level. Sound levels decrease as a function of distance from the source as a result of wave divergence, atmospheric absorption and ground attenuation. As the sound wave form travels away from the source, the sound energy is dispersed over a greater area, thereby dispersing the sound power of the wave. Atmospheric absorption also influences the levels that are received by the observer. The greater the distance traveled, the greater the influence and the resultant fluctuations. The degree of absorption is a function of the frequency of the sound as well as the humidity and temperature of the air. Turbulence and gradients of wind, temperature and humidity also play a significant role in determining the degree of attenuation. Intervening topography can also have a substantial effect on the effective perceived noise levels. Noise has been defined as unwanted sound and it is known to have several adverse effects on people. From these known effects of noise, criteria have been established to help protect the public health and safety and prevent disruption of certain human activities. This criteria is based on such known impacts of noise on people as hearing loss, speech interference, sleep interference, physiological responses and annoyance. The description, analysis and reporting of community noise levels around communities is made difficult by the complexity of human response to noise and the myriad of noise metrics that have been developed for describing noise impacts. Each of these metrics attempts to quantify noise levels with respect to community response. Most of the metrics use the A-weighted noise level to quantify noise impacts on humans. A-weighting is a frequency weighting that accounts to]- human orhuman sensitivity to different frequencies. 14-55 0 dBA Outdoor Indoor threshold of hearing (0 dBA) 20 rustling of leaves (20 dBA) whispering at 5 feet (20 dBA) 40 quiet residential area (40 dBA) I>>> refrigerator (50 dBA) 60 / \\�Un air-conditioner at 100 feet (60 dBA) sewing machine (60 dBA) normal conversation to 65 dBA) /\/Ua dishwasher(55-70 dBA) car at 25feet at 65 mph (77 dBA) living room music or TV (70-75 dBA) 80 (� diesel truck at 50 feet at 40 mph (84 dBA) garbage disposal (80 dBA) propeller airplane flyover at 1000 feet (88 dBA) ringing telephone (80 dBA) motorcycle at 25 feet (90 dBA) vacuum cleaner(60-85 dBA) lawnmower (96 dBA) shouted conversation (90 dBA) backhoe at 50 feet (75-95 dBA) 100 snowmobile (100 dBA) pile driver at 50 feet (90-105 dBA) Dcar horn (I 10 dBA) baby crying on shoulder(110 dBA) rock concert (110 dBA) leaf blower(110 dBA) 120 ambulance siren (120 dBA) D stock car races(130 dBA) jackhammer(130 dBA) 140 sources: League For The Hard 01 Hearing•v,n Ihli.org Handl nok nl No'ae Cn r rel,McGraw Hill,Edited byCyril Harris,1979 Measureluents by Memo Greve Associates Exhibit 2 "I' voical Noose Levels 14-56 Mestre Greve Associates Woody's Wharf Division of Landrum & Brown Page 5 Several rating scales have been developed for measurement of community noise. These account for: (l.) the parameters of noise that have been shown to contribute to the effects of noise on man, (2) the variety of noises found in the environment, (3) the variations in noise levels that occur as a person moves through the environment, and (4) the variations associated with the time of day. They are designed to account for the known health effects of noise on people described previously. Based on these effects, the observation has been made that the potential for a noise to impact people is dependent on the total acoustical energy content of the noise. A number of noise scales have been developed to account for this observation. The three noise scales commonly used in Newport Beach are the: Equivalent Noise Level (Leq), the maximum sound level (Lmax), and the Community Noise Equivalent Level (CNEL). These scales are described in the following paragraphs. Leq is the sound level corresponding to a steady-state sound level containing the same total energy as a time-varying signal over a given sample period. Leq is the "energy" average noise level during the time period of the sample. Leq can be measured for any time period, but is typically measured for I hour. This I-hour noise level can also be referred to as the Hourly Noise Level (HNL). It is the energy sum of all the events and background noise levels that occur during that time period. Lmax is simply the maximum sound level that occurs in any given time period. The Lmax represents an instantaneous sound level, and there is no other second in a given time period which has a louder noise level. CNEL is the predominant rating scale now in use in California for land use compatibility assessment. The CNEL scale represents a time weighted 24-horn' average noise level based on the A-weighted decibel. Time weighted refers to the fact that noise that occurs during certain sensitive time periods is penalized for occurring at these times. The evening time period (7 p.m. to 10 p.m.) penalizes noises by 5 dBA, while nighttime (10 p.m. to 7 a.m.) noises are penalized by 10 dBA. These time periods and penalties were selected to reflect people's increased sensitivity to noise during these time periods. A CNEL noise level may be reported as a "CNEL of 60 dBA," "60 dBA CNEL," or simply "60 CNEL." 1.3 Noise Criteria A noise ordinance is designed to control unnecessary, excessive and annoying sounds from one parcel, of land impacting another parcel of land. Noise ordinance requirements cannot be applied to mobile noise sources when traveling on public roadways, because Federal and state laws preempt their control. However, a noise ordinance does apply to both mobile and stationary noise sources on private property. Newport Beach Ordinance Chapter 10.26—Community Noise Control comprises the City's Noise Ordinance. Table 1 presents the City of Newport Noise Ordinance standards. The City of Newport Beach noise criteria are given in terms of Leq and Lmax noise levels. The noise levels specified are 14-57 Mestre Greve Associates Woody's Wharf Division of Landrum & Brown Page 6 those that are not to be exceeded at a properly from noise generated at a nearby property (Table 1). Noise levels are to be measured with A-weighting and a slow time response usually for a 15 minute period. Greater noise levels are permittee( during the day (7 a.m. to 10 p.m.) as compared to the nighttime period (10 p.m. to 7 a.m.). These limits are increased if ambient noise levels are higher. The limits are essentially raised to the ambient levels. Table 1 City Of Newport Beach Noise Ordinance Standards ]Daytime Nighttime Leq ]Lmax lLeq Lmax Zone I-Single,two, or multiple family residential 55 dBA 75 dBA 50 dBA 70 dBA Zone II- Commercial 65 dBA 85 dBA 60 dBA 80 dBA Zone III-Residential portions of mixed-use properties 60 dBA 80 dBA 50 dBA 70 dBA Zone IV-Industrial or manufacturing 70 dBA 90 dBA 70 dBA 90 dBA The noise levels generated by Woody's Wharf or any other noise source on private property that impacts the residential portion of the mixed should not exceed those identified for Zone III. This would be measured at the property of the residential property (i.e., the receptor). Specifically at night the noise generated by Woody's Wharf or any other source should not exceed 50 dBA (Len) or 70 dBA (Lmax) at the residences of the mixed-use development. 1 .4 Noise Measurements Noise levels were made at six sites (Exhibit 1) during the late evening of December 2.1 , 2012 and early morning hours of December 22, 2012. Noise measurements at all sites were performed using Bruel & Kjwr Model 2238 automated digital noise data acquisition system and sound meter mounted on a tripod. During the measurements a large windscreen covered the microphone to dampen out the effect of unwanted wind-generated noise, but has no effect on the sound measurement readings. Before and after the measurements were taken, a Brtiel & Kjxr 4231 calibrator with certification traceable to the National Institute of Standards and Technology was used to calibrate the sound meter to ensure that the measured sound level readings were accurate. Table 2 shows the results of the measurements. The measurements were made at a height of 5 feet except those at Sites 3 and 4. Sites 3 and 4 were measured at 15 feet high, which is the height of the second floor residences in the mixed-use development. The measurements are presented in roughly chronological order, and are grouped by the purpose of the measurement. Measurements at different sites had different purposes. Each of the measurements is discussed following the table. 14-58 Mestre Greve Associates Woody's Wharf Division of Landrum & Brown Page 7 Table 2 Event Noise Measurements (dBA) Site Start Time End Time Leq Lmax Purpose Site 5 11:00 P.M. 11:15 P.M. 69.0 84.0 Parking lot Site 6 11:00 P.M. 11:15 p.m. 66.5 80.8 Newport Boulevard Site 1 12:03 a.m. 12:14 a.m. 60.0 64.6 Woody dock - deck open Site 2 12:25 a.m. 12:35 a.m. 60.7 69.6 Commonwealth dock Site 1 1:07 a.m. 1:17 a.m. 63.7 71.4 Woody dock - deck closed Site 2 1:14 a.m. 1:24 a.m. 61.4 69.3 Commonwealth dock Site 3 12:01 a.m. 12:16 a.m. 53.2 62.4 Mixed use residential Site 4 12:24 a.m. 12:39 a.m. 52.1 66.3 Mixed use residential Site 3 1:03 a.m. 1:18 a.m. 54.5 64.5 Mixed use residential Site 4 1:25 a.m. 1:40 a.m. 48.2 59.2 Mixed use residential Site 5: Edge of Woody's Wharf Parking Lot. This monitoring location was at the edge of Woody's Wharf parking lot near Newport Boulevard. The primary noise at this site was the traffic on Newport Boulevard. However, the peak noise levels were from people walking by on the sidewalk and yelling. One person caused a peak noise level of 80 dBA while another person reached 83 dBA. One person walking through the parking lot and yelling also reached 83 dBA. It was observed that all cars were valeted parked at Woody's Wharf and that no patrons hung-out in the parking lot. During the quieter traffic times some music corning from the Commonwealth could be heard. No music from Woody's Wharf could be heard, but some conversation from the line waiting to get into Woody's Wharf could occasionally be. heard. Site 6: Near the northeast corner of Newport Boulevard and 26th Street. This monitoring site was representative of the noise levels experienced by residences living along Newport Boulevard in the mixed-use development. The primary noise source was the traffic passing on Newport Boulevard. Cars passing by could reach 77 dBA. The Lmax of 80.8 was caused by a person yelling as he was walking on the sidewalk General aviation aircraft was also heard during this period. Sites 1 and 2: In the channel in front of Woody's Wharf and the Commonwealth. Site 1 was just off the south dock of Woody's Wharf and Site 2 was just off of the north dock of the Commonwealth. The noise measurements were made in an electric boat (essentially quiet). The boat did drift a little bit and its location had to be corrected occasionally. The measurements at Sites 1 and 2 were first made during the midnight hour with the outside deck at Woody's Wharf open with what appeared to be a capacity crowd on the outside deck. Late in the midnight 14-59 Mestre Greve Associates Woody's Wharf Division of Landrum & Brown Page 8 hour the operators at Woody's Wharf closed the outside deck area, and once the deck was cleared, the measurements were repeated during the one o'clock hour at Sites 1 and 2. The purpose of the second set of measurements was to see if closing the outside deck would have any effect on the noise levels. The outside deck is connected to the main bar area via a pair of doors. The outside deck is surrounded by a glass wall approximately 6 feet high that acts as a noise barrier. The music is located in the bar arca and can be heard in the outside deck area. During the first set of noise measurements with the outside deck open for patrons, noise from Woody's Wharf could not be heard, but could be heard from the Commonwealth. At Site I music from the Commonwealth was commonly in the 60 to 62 dBA range with a strong bass component. An inspection of the Commonwealth was not made, however, it appeared that doors from the Commonwealth bar were open and led to the bar area at the club. When the music was quieter, conversation from both Woody's Wharf and the Commonwealth could be heard at Site 1 . The conversation noise from Woody's Wharf appeared to be from the area on the south side of the building, and not the outside deck area. The measurement at Site 2 (with the outside deck open) had similar results to Site 1 in that music from the Coinmonwealth could be heard but music from Woody's Wharf was inaudible. During the midnight hour measurement at Site 2, an apparent patron came out onto the Commnonwealth dock and was yelling. His yelling was responsible for the Lmax of 69.6 dBA. During the second set of measurements at Sites 1 and 2; the outside patio area at Woody's Wharf was not in use and the doors connecting it to the bar room were closed. The noise levels at Site 1 were slightly higher during this second set of measurements. For example, the Leq noise levels at Site I went from 60.0 dBA when the outside deck was open to 63.7 dBA when the outside deck was closed. It appeared that the music was being played louder at the Commonwealth. Music from the Commonwealth was the dominant noise source. Conversation from the Commonwealth could be clearly heard and a minor amount of conversation from Woody's Wharf when the music was not being played. The results were similar at Site 2. The Leq noise levels increased from 60.7 dBA with the deck open to 61.4 dBA with the deck closed. Again, the music from the Commonwealth was the dominant noise source, and music from Woody's Wharf was inaudible. The Lmax noise level was again due to a person at the Commonwealth yelling. The average noise levels for the secondmeasurement at Site 2 was also slightly louder than the first due to the music being played slightly louder at the Commonwealth. But this also clearly shows that the noise from the outside deck area is insignificant and not contributing adversely to overall community noise levels. During the measurement at Site 2, patrons boarded a boat at Woody's Wharf and motored away and it was not audible. Tt should be noted that after each measurement set, the noise technician went inside Woody's Wharf to confirm that music was being playing at a level consistent throughout the night and in a manner typical for live DJ music (i.e.,loud). Sites 3 and 4: At the residences in the mixed-use development. Site 3 is the most southerly of the two residential sites and is the closest to Woody's Wharf. During the first measurement the Leq was 53.2 dBA, which is slightly above the noise ordinance criteria of 50 dBA. (The Lmax ordinance criterion of 70 dBA was never exceeded at Sites 3 or 4.) During the first measurement at Site 3 voices from a boat docked at the Commonwealth 14-60 Mestre Greve Associates Woody's Wharf Division of Landrum & Brown Page 9 could clearly be heard and was generally in the range of 53 to 58 clBA but going up as high as 62 dBA. The "boom boom" from music could faintly be heard and was generally around 53 dBA. This music noise was from the Commonwealth, and operations at the Commonwealth were the reason that noise levels (Leq) were above 50 dBA at this location. During the first measurement set, the noise levels at Site 4 were similar to those at Site 3, but were due to different sources. At Site 4 distant traffic was audible an around 47 dBA. A boat passed by in the channel (62 dBA),a helicopter flew overhead (66 clBA), and general aviation aircraft (48 dBA) could be heard in the distance. Voices at the boat clocks of the Commonwealth could be heard briefly and were about 50 dBA. Music was occasionally audible at Site 4. The noise ordinance level of 50 dBA was exceeded at Site 4 by 2.1 clB during this measurement period. However, it was clear that the noise was above 50 cIBA due to the helicopter flyover and boat pass-by and not anything associated with the restaurants/bars in the area. it should be noted that between Sites 3 and 4, music was being played inside one of the boats docked. The music could be clearly heard for about 70 feet in both directions along the boardwalk,but could not be heard at either Sites 3 or 4. The measurements at Sites 3 and 4 were repeated with the outside deck at Woody's Wharf closed. The measurements at Site 3 were slightly higher during the second set of measurements. Observations during this period included music from a boat in the channel (57 dBA), voices on boat docked at Commonwealth (ranging from 61 to 64 cIBA),music from boat or bars (54 dBA), low bass music most likely from the Commonwealth (54 dBA). The measurements at Site 4 were slightly lower during the second set of measurements. Observations during this period include unidentifiable music from the bar area (49 dBA) and activity from people on the boardwalk (47 to 54 dBA). in general, this was a very quiet period with the distant ocean waves and distant traffic being audible. 1 .5 Summary and Coo•6uslons Below is a summary of pertinent observations and conclusions based on our noise measurements. I. The parking lot is well managed at Woody's Wharf with valet parking and patrons not being allowed to loiter in the lot. (This is a common source of noise complaints from residents.) 2. Patrons coming and going from Woody's Wharf are no louder than people walking along the public sidewalk. 3. Noise levels along Newport Boulevard and experienced at residences along Newport Boulevard can be loud, specifically with average noise levels(Leq) being in the upper 60 dBA range. 4. Music from Woody's Wharf is well. contained within the structure and the outside deck area with glass barrier. Music from Woody's Wharf was not audible. 5. Closing the outside deck at Woody's Wharf had no effect on the noise levels. This confirms that noise from the outside deck in surrounding areas is negligible. If the noise. levels had gone down when the deck was closed, then that would be a strong indication that the noise from Woody's Wharf was a significant contributor to the outside noise levels. However, the noise levels actually went up slightly indicating that Woody's 14-61 Mestre Greve Associates Woody's Wharf Division of Landrum & Brown Page 10 Wharf was not a significant noise source and our observation was that the Commonwealth had increased the level of their music slightly. 6. Music and noise from the clocks of the Commonwealth are audible at the mixed-use residences. At times these sources of noise may exceed 50 dBA (Leq). At other times they may be audible, but not above 50 dBA (Leq). 7. The practice at Woody's Wharf of limiting dock use to patrons arriving and departing on boats (no loitering on boats) appears to be very beneficial to reducing noise levels in the surrounding areas and should be practiced at other bars and restaurants in the area. 8. No noise specific to Woody's Wharf was ever identified at the mixed-use residences. Noise from Woody's Wharf is not audible at the mixed-use residences. Noise from the Commonwealth, local roadways, distant roadways, and the surf were all heard. Noise from Woody's Wharf was not heard. 9. Noise levels at the mixed-use residences can be above 50 dBA (Leq) due to sources in the area other than bars and restaurants. Helicopter overflights, activities on the docks in front of the mixed-use area, activities on the boardwalk, and boats in the channel can all cause noise levels to go above 50 dBA (Leq). 14-62 Attachment No. CC 6 Proposed Late-Hour Floor Plan 14-63 § q q ma» OV _, !AR e • ,eama c | S! ! ) §ƒ | H d&n�gu JHa !On a A a ) § _asap, ! I I 26 �w I � ) \ ~` \6 / ! © ' a! a . /} �j\ I < I , } I� o \{ Z! � \ I . I ¥ I m\__ \� \ �f\ ,m ; ;_ \ ))f; §H/) 2\ \}/§/ ;/\; ;`;® �[3 ®m®! f : ;!�§ �!®; ,/ee =;./ \)2! ■!\/ ^:®®r �_EH //( Attachment No. CC 7 Project Plans- Site Plan and Floor Plan 14-65 3 » ` =maatls J a Nat S wl ' ea�I�41w pry' I,T �-��-�• Ix' eq N a l#1 is Pi 'F 91 1 .T 3 rF- n— a I D J I r lel � Q z Q i 3g 5 N I ~ ✓� r 4 1 4 B 4 ¢ z i e , II - •e le 1 oil, ' _ gERER ,I I, 96e44siF� 9��3 IN S�& 'wlalb u. S N � � 1 )�I,IItI�IIri�IH;Li�;fllfttl!�►E hal ssl-® ® �EHill ##qIMS i43eB� �I16s1�FBs�E! � s 3 �1��l� � � • � ��` �" � 'Y '[I •R. �q' � V • . yyy O t ® qc o!1ed joopino tiep!ouy ° cea. 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